{"document_id": "1966_3_176_192_EN", "year": 1966, "text": "<:OMMISSIONER OF INCOME-TAX, PUNJAB\n\nM/S. CHANDER BHAN HARBHAJAN LAL\n\nJanuary 4, 1966\n\nfA. K. SARKAR, J. R. MUDHOLKAR. A:-; D R. S. BACHAWAT, JJ.)\n\nIncome.tax Acr ( 11 of 1922), s. 66(2)-Parlner of one firm also partnLr in assesSiee-funr-Wlzether all the partners. of first firni are pt1rtnerf of the assessee-firm-1/ a substantial question of lav.\n\nThe nssessec.-firm, consisting of 14 partners, applied for registration under s. 26A of the Income-tax Act, 1922.\n\nOne G, who nas a partner of the assessee-firm, was also partner of another firm, the Ferozepore firm.\n\nThe Ferozepore firm consisted of 8 partners who had ogrttd that if any work y; as carried on by any one of them \\\\'ith others the profits and losses ario;; ing out of that work \\\\ould be divided amongst all the partners in proportion to their shares in that firm.\n\nIn the course of the proceedings for the registration of 1he assc$.SCO-fi.rm all irs partners had stated before 1he Income-lax Officer that G was a panncr in the assesace-- firm, not in his individual capacity but on behalf of the Ferozepore firm.\n\nIt was found by the lncome.-tax Officer that the capital of the ...........,_ firm was supplied by G who had taken the amount from the Feroupore firm, and, that the assessee.firm was to carry on the l'iame kind of business as the Ferozepore firm.\n\nThe Income.lax Officer rejected the application for the reason that in reality it was not G but the l'erozepore firm that was the partner of the assessee-firm and consequently, tho assesse<Hlrm wos illegally constituted because : (i) Ferozepore firm could not leplly he a partner in the asscssee--firm; (ii) the total number of partners of the assessee-firm would then be 21; and (iii) the individual shares of the partners of the Fero; repore firm were not specified in the partner<hip deed of the assessee-firm.\n\nThe Appellate Assistant Commissioner, on appeal. reversed that order, holding that G was a partner of the asscsrm in his individual capacity and not as a representative of the Feroupore firm and that the effect of his agreement to share his profits and looses\n\nin the assessee-firm with the other partners of the Ferozepore firm was only to constitute a sub-partnersbif bet\\cen G and the other partners in the Ferozepore firm, in respect o the share of G in the assessee-ftrm.\n\nThe Appellate Tribunal upheld the order of the Appellate Assistant Com\n\nmissioner on the short ground that there was no merit in the appeal in view of certain decisions cited by it, and also dil'imissed the application under s. 66( 1) 10 refer lo the High Court four questions of law.\n\nThe Commissioner preferred a petition befure the High Court under s. 66(2 l for directing the Tribunal to refer the questions; (I) whether G was a partner of the asscssce-firm tn his individual capacity or representing the partners of the Ferozepore. firm, and (ii) whether the Ferozeporo ftrm was a sub-partnership; but the High Court dismi., ed the application holding that the questions of iaw were well souled.\n\nIn appeal to this Court, it was contended that : (i) under the circwn- slance., G was a partner of the as\"'8see-firm not in his individual capacity but on behalf of the Fero:repore firm; (ii) the Hih Court held that there was a sub-partne.rship on the erroneous assumpuon that the Ferozepore firm came into existence afler the ~-firm was constituted; and sia.oe\n\na aub-partnership can be entered into only after a partnership was eonsti toted, there could be no sub-partnenhip between the members ol the\n\n• 1\n\nr • •\n\n/ > •\n\nC. !. T. v. M/S. C. B. H. LAL 177\n\nFeroupore firm; and (iii) as a question of law arose out of the order of Tribunal, the High Court was bound to call for a statement of case.\n\nHELD : (per Sarkar and Bachawat, JJ.) on the materials on record. the Appellate Tribunal was entitled to come to the concluSion that G and not the Ferozepore firm was the partner in this assessee-firm [181 D-E] Conunissioner of Income-tax v. Sivr .. kasi Match Exporting Co. [1964] 8 S.C.R. 18, followed.\n\n(ii) The question whether there, \\\\'a:J a sub-partnership between th~ members of the Ferozepore firm in respect of the share of G is not materail because, assumini; that there was no sub-partnership, the members of tile' Ferozepore firm dtd not become partners in the assessee-firm by virtue of the clause which only regulated the relationship of the partners of the Ferozepore firm inter se and created a partnership between them in respect of the share of G in the assessee-firm. [183 B-D]\n\n\n(iii) Though a question of law arose out of the order of the Appellate Tribunal, since it was not a substantial question of 1aw and the answer to the question was self-evident, the High Court was not bound to require the Tubunal to refer the question. [1S4 DJ Per Mudholkar, J. (dissenting) : The1 main question \\vhich aros,~ in the present case was whether in the circumstances of the case, the assesseefirm was registrable under s. 26A. Ascertainment of the legal effect of those circumstances would be a question of law. The Appellate Assistant\n\nCommissioner and the Tribunal had not considered the question whether the application for registration reflected the true position as regards the real partners in the assessee-firm. The reasoning of the Appellate Assistant Commissioner was pertinent only to a case of sub-partnership, and the Tribunal merely referred to certain decisions and dismissed the Department's appe'!.1.\n\nSince the finding of the Appellate Assistant Commi5sioner and also of the Tribunal was arrived at by ignoring the relevant facts found by the Income-tax Officer, the finding was vitiated by an error of law. The High Court has also committed an obvious error as to when the Ferozepore firm was constituted and that error has led to the further error that the Ferozepore firm was sub-partnership in relation to the assessee-firm.\n\n\nTherefore, the High Court should have directed the Tribunal to refer the que•tion. [188 H;\n\n190 H; 189 H; 188 A-B; 192 B-DJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appal No. 605 of 1963.\n\nAppeal by special leave from the judgment and order dated the January 24, 1961 of the Punjab High Coun in Income-tax Case No. 16 of 1956.\n\nNiren De, Additional Solicitor-General, Gopal Singh and R. N. Sachthcy, for the appellant.\n\nBishan Narain, O.C. Mathur and /. B. Dadachanji, for the A respondent.\n\nThe Judgment of Sarkar and Bachawat JJ. was delivered by Bachawat J. Mudholkar J, delivered a dissenting Opinion.\n\nBachawat, J.\n\nThis appeal by special leave is from an order B of the Punjab High Court rejecting an application by the Commissioner of Income-tax Punjab under s. 66(2) of the Ind; an Income-tax Act, 1922.\n\nOn April 21, 1953, 14 partners of the firm of Messrs. Chander Bhan Harbhajan Lal of Rupar (hereinafter referred to as the assessee fim1) constituted undr the instrument of partner, hip dated December 5, 1952, applied to C the Income-tax Officer. Project Circle, Ambala for registration of the firm under s. 26-A of the Indian Income-tax Act. It may be mentioned at this stage that there was arwther firm of the name of Chander Bhan & Co., of Ferozcpore (hereinafter referred to as the ferozepore firm), consisting of 8 partners and constituted under a deed dated June 14. 1952, which provided inter alia:\n\n\"If any one of the executants enters into business individually or along with another person all the partners of the firm shall be entitled to the profit and liable for the loss, accming from that business according to the shares hereinbefore mentioned.\"\n\nOne Gosain Chanucr Bhan was a partner of both the assesseefirm and the Fcrozeporc firm.\n\nIn course of proceedings arising out of the application for registration of the assessee firm under. s. 26-A, Harbhajan Lal, one of its partners, stated on January 30. 1954:\n\n\"I Harbhajan Lal son of Shri Ram Chand of Rupar solemnly declare that fim1 M's. Chander Bhan Harbhajan °Lal con,'sted of 14 prtners as mentioned in the return and deed of partnership.\n\nGosain Chander Bhan was partner not in his individual capacity but on behalf of the firm M/s.\n\nGosain Chander Bhan and Company Ferozepur having about six partners ....\n\nOther partners are partners in their individual capacity.\"\n\nIt seems that other partners of the assessee firn1 made similar statement; on February 27, 1954.\n\nThe capital of the assessee firm was supplied by Gosain Chander Bhan. It appears that Gosain Chander Bhan had taken the capital from the Ferozepore firm, and the amount was shown as an item in his accounts with the Ferozcpor.e fim1.\n\nI-•\n\n• •'\n\n)..__ t\n\n• .. l\n\n\" • •\n\n' •\n\nC.1.T. v. M/S. c. B. H. LAL (Bachawat, J.) 17 9\n\nBy his order dated February 27, 1954, the Income-tax Officer rejected the application under s. 26-A. He held that ( 1) the deed dated December 5, 1952 did not specify the date of the constitution of the assessee firm; ( 2) some of the parties to the deed having no experience in the bminess of the fiI?1 were not really partners therein, and the number of partners m the firm had been artificially increased with a view to reduce the taxable liability; ( 3) the firm was not genuine, as it had no banking account, did not possess the income-tax clearance certificate, did not notify its constitution to the P.W.D., and payments were received from the P.W.D. in the name of Harbhajan Lal. On appeal, the Appellate Assistant Commissioner, Ambala Branch, set aside all thes.e findings of the Income-tax Officer. The correctness of the decision of the Appellate Assistant Commissioner on these points is no longer challenged.\n\nThe Income-tax Officer also held that though the deed dated December 5, 1952 stated that Gosain Chander Bhan was the D partner having 6/ 16th share, in reality the Ferozepore firm was\n\nthe partner of the assessee firm having 6/ 16th share therein and consequently. the assessee firm was illegally constituted, because ( 1 ) the F erozepore fim1 could not legally be a partner in the assessec fi.m1; (2) the total number of partners of the assessee E firm was 21; and ( 3) moreover, the individual shares of the eight partners of the Ferozepore firm were not specified in the deed\n\ndat.d December 5, 1952.\n\nOn these findings, the Income-tax Officer rejected the application under s. 26-A.\n\nOn appeal, the Appellate Assistant Commiss; oner set aside these findings, and held that Gosain Chander Bhan was the partner of the assessee F firm in his individual capacitv and not as representative of and on behalf of all the partners of the Ferozepore Ii.rm. He held that Gosain Chander Bhan had merely agre.d to share his profits and losses in the assessee firm with his other partners of the Ferozepore firm. that such an agreement did not make the other partners of the firm, partners in the assessee firm, and the effect of the agreement was to comtitute a sub-partnership only.\n\nOn further appeal, the Income-tax Appellate Tribunal, Delhi Branch,. upheld these find; ngs of the Appellate Assistant Commissioner,. and held that those findings were supported by the decisions in Commissioner of lncomeJtax v. Messrs. Agardih Colliery (1) and\n\nCommissioner of Income-tax v. Laxmi Trading Company (2) .\n\nThe Commissioner of Income-tax, Punjab then applied to the Appellate Tribunal under s. 66 ( 1) of the Indian Income-tax Act\n\n(1) A.l.R. 1955 Patna 225.\n\n(2) [1953] 24 LT.R. t73.\n\nC.I.T. v. M/ s. c. B. H. LAL (Bachawat, J.) 181\n\nA Counsel for the appellant contended that all the partners of the Ferozepore firm were the partners in the assessee firm, having regard to ( 1) the fact that the capital of the assessee firm was secured by Gosain Chander Bhan from the Ferozepore firm, (2) the clause in the deed of partnership dated June 14, 1gs2 under which all the partners of the Ferozepore firm were entitled to the B profit and liable for the loss in respect of the share of Gosain Chander Bhan in the assessee firm, and (3) the statement of Harbhajan Lal and other partners of the assessee firm that Gosain Chander Bhan was a partner in the assessee firm not in his individual capacity but on behalf of the Ferozepore firm. We are unable to accept this contention. The real question before us is whether C any substantial question of law arises out of the order of the Tribunal.\n\nWe think that no such question arises.\n\nThe deed dated December 5, 1952 clearly stated that Gosaiii Chander Bhan and 13 other parties to the deed were the partners of the assessee firm.\n\nOn the face of the deed, it does not appear that Gosain Chander Bhan was a partner in a representative capacity D on behalf of the Ferozepore firm, or that the Ferozepore firm was the partner in the assessee firm.\n\nOn the materials on the record, the Appellate Tribunal was entitled to come to the conclusion that Gosain Chander Bhan and not the Ferozepore firm was the partner in the assessee finn.\n\nE The capital of the assessee firm was supplied by Gosain Chander Bhan. Gosain Chander Bhan in his turn had taken the amount of the capltal from the Ferozepore firm, but there is no evidence to show that he took the money otherwise than in his individual capacity. The clause in the partnership deed constituting the Ferozepore firm to the effect that all the partners of F the Ferozepore firm are entitled to the profits and liable for the\n\nlosses accrued in the share of Gosain Chander Bhan in the assessee firm may show that there is a partnership between Gosain Chander Bhan and other partners of the Ferozepore firm in respect of the share of Gosain Chander Bhan in the profits and losses of the assessee firm.\n\nThis partnership, if any, between the members of G the Fero7.epore finn does not make the Ferozepore firm a partner in the assessee firm.\n\nThe Ferozepore firm is not a party to the agreement of partnership constituting the assessee firm.\n\nGosain Chander Bhan in his individual capacity could legally be a partner\n\nin the assessee firm, and the fact that he secured the capital from the Ferozepore firm, or that he entered into a partnership with the H other members of the Ferozepore firm in respect of his share in the assessee firm does not show that the Ferozepore firm is a partner of the assessee firm, or that the assessoe firm is not validly\n\n• '\n\nC.I.T. v. M/S. c. B. H. LAL (Bachawat, J.) JS:l\n\nWe did noi enquire into the correctness of counsel's assumption that this passage is an authority for the proposition that there cannot be an agreement of sub-partnership in anticipation of the head partnership coming into existence.\n\nBut the question whether the relevant clause in the deed dated June 14, 1952 created a subpartnership in respect of the share of Chander Bhan in the assessee B firm having regard to the fact that this deed was executed before the assessee firm came to be constituted is not material for the purpose of the case, and need not be decided. The clau•e regulated the relationship of the partners of the Ferozepore firm inter , e, and created a partnership between them in respect of the share of Gosain Chander Bhan in the assessee firm. Assuming, with0ut C deciding that this partnership was not, strictly speaking, a subpartnersh'p, it does not follow that the partners of the Ferozepore firm became partners in the assessee firm. By reason of this clause vis-a-vis the partners of the Ferozepore firm, Gosain Chander Bhan could be reagrded as their representative in the a<sessee firm;\n\nnevertheless, they were strangers to the contract of partnership constituting the assessee firm and did not become partners therin.\n\nIn Commissioner of Income-tax v. Bagyalakshmi & Co.('), Subba Rao, J. observed :\n\n\"A contract of partnership has no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. A partner may be the Karla of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may under an agreement, express or implied, be the representative of a group of persons; he may he a benamidar for another. In all such cases he occupies a dual position. Qua the partnership, he functions in his personal capacity; qua the third parties, in his representative capacity. The third parties, whom one of the partners represents, cannot enforce their rights against the other partners nor the other partners can do so against the said third parties.\n\nTheir right is only to a share in the profi•s of their partner-representative in accordance with the terms of the agreement, as the case may be.\" Quite plainly, the relevant clause in the deed dated June 14. 1952 was not part of the agreement of partnership dated December 5, 1952 constituting the assessee firm, and did not affect the right of the partners of the assessee firm, to claim registration of\n\n(I) [19,5] 2 S.C.R. 22, 26.\n\nthe assessee firm under s. 26-A. It is not possible to say that there arc no materials on the record to support the finding that Gosaia Chander Bhan was a partner of !he asscssee firm in his individual capacity and not as representing the Ferozepore firm.\n\nThe question whether there was a sub-partnership between the members of the Ferozepore firm in respect of the share of Gosain Chander Bhan is not material because assuming that there was no subpartnership 1hc members of the Ferozepore firm did not become partners in the assessee firm by virtue of the relevant clause in 1he deed dated June 14, 1952 or otherwise.\n\nWe are, therefore, satisfied tlrnl no subs1an1ial question of law <trises oul of lhe order of the Appellate Tribunal.\n\nCounsel for the appellant submitted that as a question of law arose out of the order of the Tribunal, the High Court was bouad\n\nto call for a st.ilernent of case.\n\nWe arc not inclined to accept this contention. Where, as in this case, the question of law is not substantial and the answer to the question is self-evident, the High Court is not bound to require the Tribunal to refer the question.\n\nD In our opinion. the High Court in the exercise of its discretion under s. 66 (2) rightly rejected the appellant's application.\n\nIn the result, the appeal is dismissed with costs.\n\nMudholkar, J. This is an appeal from a judgment of the High E Court of Punjab rejecting a petition made by the Commissioner of Income-tax, Punjab under s. 66(2) of the Indian Income-tax Act, 1922 for calling upon the Income-tax Appellate Tribunal to rticr certain questions of law to the High Court.\n\nThe relevant facts are these :\n\nOn December 29, 1948 Gosain Chander Bhan and four others entered into a partnership for carrying on the business of contractors in the name of \"Gosain Chander Bhan & Co.\" The partnership was entered into at Ferozepore and Gosain Chander Bhan was a major shareholder in the firm.\n\nBy a deed of partnership dated June 14, 1952 the firm was re-constituted and three other persons were admitted as partners therein. The old name, however, was continued. One of the terms of the partnership was that if any work was carried on by any one of the partners individually or in partnership with others, the profits and losses arising out of that work would be divided amongst all the partners in proportion of their shares in the firm.\n\nOn December 5, 1952 a partnership firm bearing the name of \"Messrs. Chander Bhan Harbhajan Lall\" was formed at Rupar.\n\nThe dead of partnership sets out the names\n\n..,4\n\nI ' ' '\n\nC.I.T. v. M/S. c. I!. H. LAL (Mudholkar, !.) 185\n\nA of 14 persons including Gosain Chander Bhan as partners and the object of the firm was to carry on business similar to that carried on by Gosain Chander Bhan & Co. It may be mentioned that in this firm also Gosain Chander Bhan was the major shareholder.\n\nFor convenience we would call the firm constituted on June 14, 1952 as the FerozeP, ore firm and the one constituted on December B 5, 1952 as the Rupar firm.\n\nOn April 21, 1953 an application was presented by the partners of the Rupar firm, accompanied by the deed of partnership dated December 5, 1952 before the Income-tax Officer, Ambala for registration of the firm under s. 26-A of the Act for the assessmst c year 1953-54. The Income-tu: Officer examined the partner1 coastituting the firm and recorded their statements in order to ascertain the true position with regard to the constitution of the finn.\n\nHarbhajan Lal in his statement dated January 30, 1954 and tie other partners in their statements dated February 27, 1954 admitted that Gosain Chander Bhan had entered into the partnei:- D ship not in his individual capacity but on behalf of the Ferozepore firm. The Income-tax Officer also found that the funds invested in the Rupar firm in the name of Gosain Chander Bhan were allo provided by the Ferozepore firm.\n\nUpon these and some other facts he came to the conclusion that the deed of partnership dated December 5, 1952 did not specify the real partners of the firm E and, therefore, the firm cannot be registered. He further came to the conclusion that as in reality all the partners of the Ferozepore firm and not Gosain Chander Bhan alone, were also partners along with 13 other persons in the Rupar firm, the total number of partners exceeded 20. Such a partnership being invalid in law the firm could not be registered under s. 26A of the Act. He, therefore, F dismissed the application by his order dated February 27, 1954.\n\nIn appeal his order was, however, reversed by the Appellate A.isi.stant Commissioner by his order dated August 12, 1954.\n\nThe appeal preferred therefrom by the Income-tax Officer before tile Income-tax Appellate Tribunal (Delhi Branch) was dismissed by it by its order dated September 5, 1955. In doing so the Tribunal G based itself on the decisions in The Commissioner of Income-tax\n\nv. Agardih Colliery Company(') and Commissioner of lncom.etax v. Laxmi Trading Co.(\") The Commissioner of Income-tax then applied to the Tribunal under s. 66( 1) to refer to the High Court four questions of law. The Tribunal, however, rejected the H application on March 5, 1956. The Commissioner thereupon preferred a petition before the High Court under s. 66(2) for\n\n(I) A.I.R. 1955 Patna 225.\n\nL 9 Sup C l/66~13\n\n(2) (1953) 24 I.T.R. 173.\n\n18,6\n\nSIJPREMB\n\nCOURT\n\nREPORTS\n\n(1966] 3 SCR.\n\ndirecting the Tribunal to refer four questions of Jaw to it. At the A hearing, however, only the following two questions were pressed on his behalf :\n\n\" ( 1 ) Whether there is any material on the record to support the finding that Gosain Chander Bhan was the real partner of the assessec firm and was not a partner in the representative capacity representing all the partners of Gosain Chander Bhan and Company of Ferozepur? ( 2) Whether the present is a case of sub-partnership to which two cases A.LR. 1935 Patna 225 and ( 1953) 24 I.T.R. 173 referred to in the order of the Tribunal apply?\"\n\nThe High Court, as already stated, dismissed the application and now the matter is before us by special leave.\n\nBefore us the learned Additional Solicitor General, appearing for the department, has raised the following two points : (I) that there was a question of law which it was incumbent on the Tribunal to refer to the High Court; ( 2) that both the Tribunal and the High Court proceeded to decide the question of law on erroneous\n\npremises.\n\nThe question of law, according to learned Additional Solicitor General, is : \"whet!Ler on the facts and circumstances of the case the firm Chander Bhan Harbhajan Lal was registrable under s. 26-\n\nA\". It must be borne in mind that the question is not whether there was material on record on the basis of which the Tribunal F could come to the conclusion that the firm was registrable but whether, upon the facts found it was registrable. In other words, the question is as to what is the cumulative effect of all the facts and not what is the effect of only some of the facts found. The contention of learned Additional Solicitor General is that when a question of Jaw is said to arise the High Court is bound to call G for a reference and it is immaterial that the question is settled already.\n\nIf in the facts and circumstances of the case a question of :aw arises, there is little doubt that under s. 66 (I) the Tribunal a !xmnd tcdraw up a statement of the case and refer the ques- 11 tion to the High Court.\n\nThe Tribunal has no discretion in the matter.\n\nWhere, however, the Tribunal refuses to do so and the High Court is moved under s. 66(2) of the Act, the position\n\n( .\n\n• '\n\n• t.,\n\n• '\n\nC.I.T. v. M/S. c. B. ii:. LAL (Mudho/kar, !.) 187\n\nA becomes different.\n\nSection 66 ( 2) confers a discretion on the High Court and if the High Court is of the opinion that though a question of law arises it is not substantial or that it is weli-settled it can reject the petition. What we have, therefore, to ascertain is whether a question of law at all arises in this case and if so whether it is a substantial question of law. In order to ascenain B whether a question of law arises it is necessary to ascertain the facts which have been found established by the Income-tax autho-· rities.\n\nI will recapitulate the facts found by the Income-tax Officer.\n\n( 1) The original firm Gosain Chauder Bhan & Co., was C formed at Ferozepore on December 29, 1948.\n\n(2) Gosain Chand.er Bhan had a major share therein .\n\n(3) This firm was dissolved and re-constituted on June\n\n14. 1952. ( 4) In the original firm there were only 5 partners including Gosain Chander Bhan while in the reconstituted firm there were 8 partners including Gosain Chander Bhan.\n\n( 5) The largest share in the re-constituted partnership was that of Gosain Chander Bhan. ( 6) The partnership deed of December 5 1952 specified the names of 14 persons including Gosain Chander Bhan as partners but did not specify the names of all the partners of Gosain Chander Bhan & Co. of Ferozepore.\n\nF ( 7) The funds invested by Gosain Chander Bhan in the\n\nRupar firm came out of the funds belonging to the Ferozepore firm. ( 8) Harbhajan Lal and other partners of Rupar firm admitted that Gosain Chander Bhan was not a partner in the Rupar Firm in his individual capacity but had joined it on behalf of the Ferozepore firm. ( 9) Tlie business carried on by the Ruper firm is similar to that carried on by the Ferozepore firm .\n\nNone of these findings on questions of fact has been negatived or upset by the Aouellate Assistant Commissioner or by the Tribu- H nal.\n\nThese findings must, therefore, be taken as the basis for ascertaining whether a question of law arises, and if it doe.<i they have to be borne in mind for deciding the question.\n\nAt this stage\n\nl would like to mention that the High Coun committed an obvious error in stating in its judgment that the re-ronstituted Ferozepore partnership was formed on June 14, 1954, that is, after the Rupar partnership was formed. This error has obviously led it into a funher error, that is, of coming to the conclusion that tllc Ferozepore partnership was a sub-partnership in relation to , the Rupar pannership. Now, ordinarily there can be a sub-partnership only when there is already in existence another partnership.\n\nSince in point of fact the Rupar partnership came into existence after the fonnation of tb.e Ferozepore partnership the latter callnot stand in relation to the former as a sub-partnersh; p. The law as stated in Lindley on Partnership at p. 99 is :\n\n\"A sub-partnership is as it were, a partnership within a partnership : it presupposes the existence of a partnership to which it is itself subordinate.\"\n\nThe correctness of this statement of law is not assailed before us\n\nby either side.\n\nIt ia no doubt settled law that where an application for registration of a firm complies with the requirements of s. 26-A and of the rules and it is found that the partnership is not genuine the Income-tax Officer is not bound to admit the firm to registration.\n\nBut it does not follow from this that for ascertaining whether the E requirements of law have been satisfied and for ascertaining whether a firm is genuine or is bogus or that it has no legal existence the Income-tax Officer must confine himself to the deed of partnership. He has power to examine the partners and to require them to adduce evidence for satisfying himself about the genuincncs.q or otherwise of the firm and also for satisfying himself about F compliance with the requirements of law.\n\nParagraphs 2 and 3 of the order of the Appellate Assistant Commissioner, however, show that he has treated the recitals in the partnenhip deed of December 5, 1952 as conclusive of the question as to who were the real partners in the Rupar firm. I can find no discussion or even reference to the findings of the Income-tax Officer which I G have earlier summarised.\n\nNo doubt in paragraph 4 he has referred to some of the facts found by the Income-tax Officer and the inference drawn by him and rejected them.\n\nLeaving these facts out of account there are other facts which are relevant for consideration but they appear to have been ignored by the Appellate Assistant Commissioner.\n\nAscertainment of the legal H effect. of those facts would in my judgment be a question of law.\n\nIt is not disputed before us that the app!ir.etion for rcgis•ra-\n\n...... ,\n\n' • •\n\n• ..\n\nC.I.T. v. M/S. c. B. H. LAL (Mudholkar .. J.) 18\n\nA tion should set out the names of all the persons who are real partners of the firm and, therefore it is incumbent on the Incometax authorities to ascertain whether any of the partners had joined the partnership in his individual capacity or as representing a group of persons. If, to the knowledge of the other partners he represents a group of persons, be they members of another B partnership or a joint Hindu family, it would be a question for decision as to whether all those persons have thereby become partners and that would be a question of law. In paragraph 6 of his order the Appellate Assistant Commissioner seems to have had this in mind and it will be useful to quote the relevant portion of the paragraph : c\n\n\"There are two essential conditions before it can be stated that contractual relationship has been brought about between the partners which is the relationship of a partnership and the two conditions are that the partners must agree to share the profits of the business and the business must be carried on by all or any of them for all of them.\n\nThere can in law be a partnership between the partner in a Head Firm and another individual in respect of the partner's share in the Head Firm so as to entitle the partners in the sub-firm to apply for registration thereof under section 26-A of the Indian Income-tax Act.\n\nIf several persons are partners and one of them agrees to share the profits derived by him with a stranger, this agreement does not make the stranger a partner in the original firm. The result of such an agreement is to constitute a sub-partnership. It makes the parties to it partners Inter se; it does not affect the other members of the principal firm: ...\n\nThe sole ground given by the Appellate Assistant Commissioner for holding that Gosain Chander Bhan was a partner in the Rupar firm in his individual capacity is that the preamble to G the partnership deed 'clearly sets out that the contracting parties were 14 and that Gosain Chander Bhan was a partner in his individual capacity.' It is true that he has repelled some of the grounds given by the Income-tax Officer in support of his conclusion but, as already stated, he has entirely omitted to consider other facts found by the Income-tax Officer which bear directly H on the point. It may be that the finding cannot be said to be based on no evidence but even so, as it has been arrived at by ignoring relevant facts, it is vitiated by an error of law.\n\nThe first sentence of para 6 of the order of the Appellate A Assi; tant Commissioner quoted above paraphrases the provisions of s. 4 of the Partnership Act and is unexceptionable.\n\nThe rest of the quotation appears to have been lifted from the head-note of the decision in Commissioner of lncometax, Punjab v. Laxmi Trading Co ( 1).\n\nThe question which fell for decision in that case was :\n\n\"Whether there could in law be a partnership between a partner in a head firm and another individual in respect of the partner's share in the head firm so as to entitle the partners in the sub-firm to apply for regis\n\ntration thereof under section 26-A, Income-tax Act, 1922?\"\n\nand it was answered in the affirmative.\n\nA sub-partnership can also, as stated by the learned Appellate Assistant C0mmissioner, apply for registration under s. 26-A.\n\nBut where does it all lead 10 '! Here the question which arises i1 whether the head firm as such has entered into partnership with\n\nanother or whether only one of the partners of the head firm has entered ir.to partnership with another. For, thal is what the question really is.\n\nAccording to the appellant, the Ferozeporc firm\n\nas a firm has become partner in the Rupar firm and not merely Gosain Chander Bhan. The learned Appellate Assistant Commi>- E sioner has not addressed himself to this aspect of the case.\n\nAt the end of the paragraph the I.earned Appellate Assistant Commissioner has observed : \"there is no data on the record to substantiate the finding of the Incomi>-tax Officer that the firm was not genuine in view of the local enquiries by him.\" That, however, is not the whole question. The whole question which arises in this F case is whether in the facts and circumstances of this case the fim1 Chander Bhan Harbhajan Lal was registrable under s. 26-A, the circumstances being that a partner of another and pre-existi11g firm became a partner in Chander Bhan Harbhajan Lal on behalf of the partners of that other firm, that he had brought in funds belonging to that firm and that the new firm was to carry on busi- G ness of the same kind as the old firm was carrying on.· Further, the reasoning of the Appellate Assistant Commissioner would be pertinent only to a case of sub-partnership. To put it somewhat differently the question is whether tl1e application for registration reHects the true position as regards the real partners in the Rupar Firm. This has not heen considered either by the Appellate H Assistant Commissioner or hy the Tribunal.\n\n(I) A 1.R. t955 Pat. 225.\n\n' • •\n\n• ,\n\nC.I.T. v. M/S. c. !!. H. LAL (Mudholkar, /.) 191\n\nA The Tribunal merely referred to the dec; sions in Laxmi\n\nTrading Co.'s case (1) and in Agardih Colliery Co.'s case(') and dismissed the department's appeal.\n\nThe latter is also a case of sub-partnership and does not assist us in deciding the matter arising here.\n\nIt is contended on behalf of the respondents that the question arising here has already been settled by three decisions of this Court.\n\nThe first of these is Commissioner of Income-tax, Madras v. Sivakasi Match Exporting Co., Sivakasi('). In that case this Court held that the mere fact that one of the partners of the firm seeking registration brought his capital from another C firm of which he was one of the partners and the further circumstance that he shared the profits received by him from the former firm with his partners in the latter firm did not make the former partnership bogus. In the first place the circumstance that upolll a certain set of facts this Court arrived at a particular decision would not necessarily make that a binding precedent even though D the inference drawn by the Court upon which its judgment rests\n\nis one of law. In the second place we have here the fact that one of the partners of the firm seeking registration was a partner in his representative capacity and not merely a partner in his individual capacity. The next case relied on is Commissiont!r of Income-tax, Ahmedabad v. Abdul Rahim & Co.(') In that case E this Court held that the circumstance that one of the partners was a benamidar for another does not justify a refusal to register the firm under s. 26-A and reiterated the essential conditions which must be satisfied by the. firm seeking registration which have been stated in Commissioner of Income-tax, Bombay v. Dwarka- F das Khetan & Co.(') It does not advance the respondent's case any further. The third decision is that in Commissioner of lncomt!- tax v. Bagya/akshmi & Co.(6). There Subba Rao J., speaking for the Court has observed :\n\n\"A partner may be the karta of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may, under an agreement, express or implied, be the representative of a group of persons; he may be a benamidar for another. In all such cases he occupies a dual position.\n\nQua the partnership he functions in his personal capacity; qua the third parties, in his representative capacity. The third parties, whom\n\n(1) A.I.R. 1955 Pat. 225.\n\n(2) (1953] 24 l.T.R. 173.\n\n\n(4) (1965] 2 S.C.R, 13.\n\n\n(6) (1965] 2 S.C.R. 22.\n\none of the partners represents, cannot enforce their rights against the other partners nor the other partners can do so against the said third parties. Their right is only to a share in the profits of their partner-representative in accordance with law or in accordance with the tenns of the agreement, as the case may be.\" It is upon these observations that learned counsel for the respondenta has placed strong reliance.\n\nThese observations are based oa the fact that the person admitted as a parcner in the finn\n\nseeking registration was so admitted as an individual. They cannot apply and were apparently not intended to apply to a kind\n\nof case as the one we have here, that is, where the partner to the C kaowledge of other partners was joining on behalf of and representing several persons. What has to be detennined is the cumulative effect of this circumstance taken along wilh the other circwnstances established in the case.\n\nThat is a question of law and I am clear that that question is far from being settled and also that it is a substantial question of law.\n\nA further question which arises on the particular facts of this case is whether the Rupar firm can be said to have legal existence because its real partners are not merely 14 persons but there are 7 persons in addition to that number.\n\nUnder the provisions of s. 11 of the Companies Act, 1956 (s. 4 of the 1913 Act) where E the number of partners exceeds 20 the firm has to be incorporated and that is admittedly not what has been done here. If, therefore, the number is in excess of 20 the firm being unincorporated, it cannot be said to have a legal existence. Unf0rtunately the Incomctax Appellate Tribunal has not discussed the facts and circumstances of this case but dismissed the second appeal preferred F by the appellant on the short ground that there was no merit in it in view of the decisions cited by it. It was necessary for the Tribunal to ascertain whether on the facts of this case those decisions concluded the matter.\n\nTh~ questions which arise are, ia my opinion, substantial between the parties and are not settled.\n\nFor these reasons I allow the appeal, set aside the judgment of G the High Court and direct the Tribunal to refer the question earlier set out to the High Court. Costs so far incurred will abide the result.\n\nORDER In accordance with the opinion of the majority, Civil Appeal No. 605 of 1963 is dismissed with costs. Civil Appeals Nos. 810 and 811 are dismissed, but there will he no order as to costs.", "total_entities": 115, "entities": [{"text": "OMMISSIONER OF INCOME-TAX, PUNJAB", "label": "PETITIONER", "start_char": 2, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "Commissioner of Income-tax, Punjab", "offset_not_found": false}}, {"text": "M/S. CHANDER BHAN HARBHAJAN LAL", "label": "RESPONDENT", "start_char": 37, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "M/S. CHANDER BHAN HARBHAJAN LAL", "offset_not_found": false}}, {"text": "January 4, 1966", "label": "DATE", "start_char": 70, "end_char": 85, "source": "ner", "metadata": {"in_sentence": "<:OMMISSIONER OF INCOME-TAX, PUNJAB\n\nM/S. CHANDER BHAN HARBHAJAN LAL\n\nJanuary 4, 1966\n\nfA. K. SARKAR, J. R. MUDHOLKAR."}}, {"text": "fA. K. SARKAR, J.", "label": "JUDGE", "start_char": 87, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "A.K. 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BACHAWAT", "offset_not_found": false}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 178, "end_char": 186, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 428, "end_char": 434, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 442, "end_char": 462, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ferozepore firm", "label": "ORG", "start_char": 572, "end_char": 587, "source": "ner", "metadata": {"in_sentence": "The Ferozepore firm consisted of 8 partners who had ogrttd that if any work y; as carried on by any one of them \\\\'ith others the profits and losses ario;; ing out of that work \\\\ould be divided amongst all the partners in proportion to their shares in that firm."}}, {"text": "s. 66( 1)", "label": "PROVISION", "start_char": 2548, "end_char": 2557, "source": "regex", "metadata": {"statute": null}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 3749, "end_char": 3757, "source": "ner", "metadata": {"in_sentence": "HELD : (per Sarkar and Bachawat, JJ.)"}}, {"text": "Ferozepore firm", "label": "RESPONDENT", "start_char": 3873, "end_char": 3888, "source": "ner", "metadata": {"in_sentence": "the Appellate Tribunal was entitled to come to the concluSion that G and not the Ferozepore firm was the partner in this assessee-firm [181 D-E] Conunissioner of Income-tax v. Sivr .. kasi Match Exporting Co. [1964] 8 S.C.R. 18, followed.", "canonical_name": "Ferozepore firm"}}, {"text": "[1964] 8 S.C.R. 18", "label": "CASE_CITATION", "start_char": 4001, "end_char": 4019, "source": "regex", "metadata": {}}, {"text": "Per Mudholkar", "label": "JUDGE", "start_char": 4786, "end_char": 4799, "source": "ner", "metadata": {"in_sentence": "1S4 DJ Per Mudholkar, J. (dissenting) : The1 main question \\vhich aros,~ in the present case was whether in the circumstances of the case, the assesseefirm was registrable under s. 26A. Ascertainment of the legal effect of those circumstances would be a question of law.", "canonical_name": "Per Mudholkar"}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 4957, "end_char": 4963, "source": "regex", "metadata": {"statute": null}}, {"text": "Niren De", "label": "OTHER_PERSON", "start_char": 6210, "end_char": 6218, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General, Gopal Singh and R. N. Sachthcy, for the appellant."}}, {"text": "Gopal Singh", "label": "LAWYER", "start_char": 6250, "end_char": 6261, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General, Gopal Singh and R. N. Sachthcy, for the appellant."}}, {"text": "R. N. Sachthcy", "label": "LAWYER", "start_char": 6266, "end_char": 6280, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General, Gopal Singh and R. N. Sachthcy, for the appellant."}}, {"text": "Bishan Narain", "label": "LAWYER", "start_char": 6302, "end_char": 6315, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, O.C. Mathur and /. B. Dadachanji, for the A respondent."}}, {"text": "O.C. Mathur", "label": "LAWYER", "start_char": 6317, "end_char": 6328, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, O.C. Mathur and /. B. Dadachanji, for the A respondent."}}, {"text": "B. 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Mudholkar J, delivered a dissenting Opinion."}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 6558, "end_char": 6575, "source": "ner", "metadata": {"in_sentence": "Bachawat, J.\n\nThis appeal by special leave is from an order B of the Punjab High Court rejecting an application by the Commissioner of Income-tax Punjab under s. 66(2) of the Ind; an Income-tax Act, 1922."}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 6648, "end_char": 6656, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 6672, "end_char": 6692, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "April 21, 1953", "label": "DATE", "start_char": 6698, "end_char": 6712, "source": "ner", "metadata": {"in_sentence": "On April 21, 1953, 14 partners of the firm of Messrs. Chander Bhan Harbhajan Lal of Rupar (hereinafter referred to as the assessee fim1) constituted undr the instrument of partner, hip dated December 5, 1952, applied to C the Income-tax Officer."}}, {"text": "s. 26", "label": "PROVISION", "start_char": 6999, "end_char": 7004, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7021, "end_char": 7035, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Chander Bhan & Co.", "label": "ORG", "start_char": 7114, "end_char": 7132, "source": "ner", "metadata": {"in_sentence": "It may be mentioned at this stage that there was arwther firm of the name of Chander Bhan & Co., of Ferozcpore (hereinafter referred to as the ferozepore firm), consisting of 8 partners and constituted under a deed dated June 14."}}, {"text": "Ferozcpore", "label": "GPE", "start_char": 7137, "end_char": 7147, "source": "ner", "metadata": {"in_sentence": "It may be mentioned at this stage that there was arwther firm of the name of Chander Bhan & Co., of Ferozcpore (hereinafter referred to as the ferozepore firm), consisting of 8 partners and constituted under a deed dated June 14."}}, {"text": "June 14. 1952", "label": "DATE", "start_char": 7258, "end_char": 7271, "source": "ner", "metadata": {"in_sentence": "It may be mentioned at this stage that there was arwther firm of the name of Chander Bhan & Co., of Ferozcpore (hereinafter referred to as the ferozepore firm), consisting of 8 partners and constituted under a deed dated June 14."}}, {"text": "Gosain Chanucr Bhan", "label": "PETITIONER", "start_char": 7561, "end_char": 7580, "source": "ner", "metadata": {"in_sentence": "One Gosain Chanucr Bhan was a partner of both the assesseefirm and the Fcrozeporc firm.", "canonical_name": "Gosaiii Chander Bhan"}}, {"text": "s. 26", "label": "PROVISION", "start_char": 7747, "end_char": 7752, "source": "regex", "metadata": {"statute": null}}, {"text": "Harbhajan Lal", "label": "PETITIONER", "start_char": 7756, "end_char": 7769, "source": "ner", "metadata": {"in_sentence": "s. 26-A, Harbhajan Lal, one of its partners, stated on January 30.", "canonical_name": "Harbhajan Lal"}}, {"text": "January 30.", "label": "DATE", "start_char": 7802, "end_char": 7813, "source": "ner", "metadata": {"in_sentence": "s. 26-A, Harbhajan Lal, one of its partners, stated on January 30."}}, {"text": "Harbhajan Lal", "label": "PETITIONER", "start_char": 7824, "end_char": 7837, "source": "ner", "metadata": {"in_sentence": "1954:\n\n\"I Harbhajan Lal son of Shri Ram Chand of Rupar solemnly declare that fim1 M's.", "canonical_name": "Harbhajan Lal"}}, {"text": "Ram Chand", "label": "OTHER_PERSON", "start_char": 7850, "end_char": 7859, "source": "ner", "metadata": {"in_sentence": "1954:\n\n\"I Harbhajan Lal son of Shri Ram Chand of Rupar solemnly declare that fim1 M's."}}, {"text": "Rupar", "label": "GPE", "start_char": 7863, "end_char": 7868, "source": "ner", "metadata": {"in_sentence": "1954:\n\n\"I Harbhajan Lal son of Shri Ram Chand of Rupar solemnly declare that fim1 M's."}}, {"text": "Chander Bhan Harbhajan °Lal", "label": "PETITIONER", "start_char": 7901, "end_char": 7928, "source": "ner", "metadata": {"in_sentence": "Chander Bhan Harbhajan °Lal con,'sted of 14 prtners as mentioned in the return and deed of partnership.", "canonical_name": "Chander Bhan Harbhajan °Lal"}}, {"text": "Gosain Chander Bhan", "label": "PETITIONER", "start_char": 8006, "end_char": 8025, "source": "ner", "metadata": {"in_sentence": "Gosain Chander Bhan was partner not in his individual capacity but on behalf of the firm M/s.\n\nGosain Chander Bhan and Company Ferozepur having about six partners ....\n\nOther partners are partners in their individual capacity.\"", "canonical_name": "Gosaiii Chander Bhan"}}, {"text": "Gosain Chander Bhan and Company Ferozepur", "label": "ORG", "start_char": 8101, "end_char": 8142, "source": "ner", "metadata": {"in_sentence": "Gosain Chander Bhan was partner not in his individual capacity but on behalf of the firm M/s.\n\nGosain Chander Bhan and Company Ferozepur having about six partners ....\n\nOther partners are partners in their individual capacity.\""}}, {"text": "February 27, 1954", "label": "DATE", "start_char": 8313, "end_char": 8330, "source": "ner", "metadata": {"in_sentence": "It seems that other partners of the assessee firn1 made similar statement; on February 27, 1954."}}, {"text": "s. 26", "label": "PROVISION", "start_char": 8748, "end_char": 8753, "source": "regex", "metadata": {"statute": null}}, {"text": "December 5, 1952", "label": "DATE", "start_char": 9639, "end_char": 9655, "source": "ner", "metadata": {"in_sentence": "The Income-tax Officer also held that though the deed dated December 5, 1952 stated that Gosain Chander Bhan was the D partner having 6/ 16th share, in reality the Ferozepore firm was\n\nthe partner of the assessee firm having 6/ 16th share therein and consequently."}}, {"text": "s. 26", "label": "PROVISION", "start_char": 10258, "end_char": 10263, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Appellate Tribunal, Delhi Branch", "label": "COURT", "start_char": 10879, "end_char": 10922, "source": "ner", "metadata": {"in_sentence": "On further appeal, the Income-tax Appellate Tribunal, Delhi Branch,."}}, {"text": "Commissioner of Income-tax, Punjab", "label": "PETITIONER", "start_char": 11181, "end_char": 11215, "source": "ner", "metadata": {"in_sentence": "The Commissioner of Income-tax, Punjab then applied to the Appellate Tribunal under s. 66 ( 1) of the Indian Income-tax Act\n\n(1) A.l.", "canonical_name": "Commissioner of Income-tax, Punjab"}}, {"text": "s. 66", "label": "PROVISION", "start_char": 11261, "end_char": 11266, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 11286, "end_char": 11300, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "June 14, 1gs2", "label": "DATE", "start_char": 11706, "end_char": 11719, "source": "ner", "metadata": {"in_sentence": "C.I.T. v. M/ s. c. B. H. LAL (Bachawat, J.) 181\n\nA Counsel for the appellant contended that all the partners of the Ferozepore firm were the partners in the assessee firm, having regard to ( 1) the fact that the capital of the assessee firm was secured by Gosain Chander Bhan from the Ferozepore firm, (2) the clause in the deed of partnership dated June 14, 1gs2 under which all the partners of the Ferozepore firm were entitled to the B profit and liable for the loss in respect of the share of Gosain Chander Bhan in the assessee firm, and (3) the statement of Harbhajan Lal and other partners of the assessee firm that Gosain Chander Bhan was a partner in the assessee firm not in his individual capacity but on behalf of the Ferozepore firm."}}, {"text": "Gosaiii Chander Bhan", "label": "PETITIONER", "start_char": 12351, "end_char": 12371, "source": "ner", "metadata": {"in_sentence": "The deed dated December 5, 1952 clearly stated that Gosaiii Chander Bhan and 13 other parties to the deed were the partners of the assessee firm.", "canonical_name": "Gosaiii Chander Bhan"}}, {"text": "June 14, 1952", "label": "DATE", "start_char": 14566, "end_char": 14579, "source": "ner", "metadata": {"in_sentence": "But the question whether the relevant clause in the deed dated June 14, 1952 created a subpartnership in respect of the share of Chander Bhan in the assessee B firm having regard to the fact that this deed was executed before the assessee firm came to be constituted is not material for the purpose of the case, and need not be decided."}}, {"text": "Chander Bhan", "label": "OTHER_PERSON", "start_char": 14632, "end_char": 14644, "source": "ner", "metadata": {"in_sentence": "But the question whether the relevant clause in the deed dated June 14, 1952 created a subpartnership in respect of the share of Chander Bhan in the assessee B firm having regard to the fact that this deed was executed before the assessee firm came to be constituted is not material for the purpose of the case, and need not be decided."}}, {"text": "s. 26", "label": "PROVISION", "start_char": 16857, "end_char": 16862, "source": "regex", "metadata": {"statute": null}}, {"text": "Gosaia Chander Bhan", "label": "PETITIONER", "start_char": 16962, "end_char": 16981, "source": "ner", "metadata": {"in_sentence": "the assessee firm under s. 26-A. It is not possible to say that there arc no materials on the record to support the finding that Gosaia Chander Bhan was a partner of !", "canonical_name": "Gosaiii Chander Bhan"}}, {"text": "s. 66", "label": "PROVISION", "start_char": 18045, "end_char": 18050, "source": "regex", "metadata": {"statute": null}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 18154, "end_char": 18163, "source": "ner", "metadata": {"in_sentence": "Mudholkar, J. This is an appeal from a judgment of the High E Court of Punjab rejecting a petition made by the Commissioner of Income-tax, Punjab under s. 66(2) of the Indian Income-tax Act, 1922 for calling upon the Income-tax Appellate Tribunal to rticr certain questions of law to the High Court.", "canonical_name": "Per Mudholkar"}}, {"text": "High E Court of Punjab", "label": "COURT", "start_char": 18209, "end_char": 18231, "source": "ner", "metadata": {"in_sentence": "Mudholkar, J. This is an appeal from a judgment of the High E Court of Punjab rejecting a petition made by the Commissioner of Income-tax, Punjab under s. 66(2) of the Indian Income-tax Act, 1922 for calling upon the Income-tax Appellate Tribunal to rticr certain questions of law to the High Court."}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 18306, "end_char": 18314, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 18322, "end_char": 18349, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "December 29, 1948", "label": "DATE", "start_char": 18490, "end_char": 18507, "source": "ner", "metadata": {"in_sentence": "The relevant facts are these :\n\nOn December 29, 1948 Gosain Chander Bhan and four others entered into a partnership for carrying on the business of contractors in the name of \"Gosain Chander Bhan & Co.\" The partnership was entered into at Ferozepore and Gosain Chander Bhan was a major shareholder in the firm."}}, {"text": "Gosain Chander Bhan", "label": "PETITIONER", "start_char": 18508, "end_char": 18527, "source": "ner", "metadata": {"in_sentence": "The relevant facts are these :\n\nOn December 29, 1948 Gosain Chander Bhan and four others entered into a partnership for carrying on the business of contractors in the name of \"Gosain Chander Bhan & Co.\" The partnership was entered into at Ferozepore and Gosain Chander Bhan was a major shareholder in the firm.", "canonical_name": "Gosaiii Chander Bhan"}}, {"text": "Gosain Chander Bhan & Co.", "label": "ORG", "start_char": 18631, "end_char": 18656, "source": "ner", "metadata": {"in_sentence": "The relevant facts are these :\n\nOn December 29, 1948 Gosain Chander Bhan and four others entered into a partnership for carrying on the business of contractors in the name of \"Gosain Chander Bhan & Co.\" The partnership was entered into at Ferozepore and Gosain Chander Bhan was a major shareholder in the firm."}}, {"text": "Ferozepore", "label": "GPE", "start_char": 18694, "end_char": 18704, "source": "ner", "metadata": {"in_sentence": "The relevant facts are these :\n\nOn December 29, 1948 Gosain Chander Bhan and four others entered into a partnership for carrying on the business of contractors in the name of \"Gosain Chander Bhan & Co.\" The partnership was entered into at Ferozepore and Gosain Chander Bhan was a major shareholder in the firm."}}, {"text": "Chander Bhan Harbhajan Lall", "label": "ORG", "start_char": 19282, "end_char": 19309, "source": "ner", "metadata": {"in_sentence": "On December 5, 1952 a partnership firm bearing the name of \"Messrs. Chander Bhan Harbhajan Lall\" was formed at Rupar."}}, {"text": "December B 5, 1952", "label": "DATE", "start_char": 19819, "end_char": 19837, "source": "ner", "metadata": {"in_sentence": "For convenience we would call the firm constituted on June 14, 1952 as the FerozeP, ore firm and the one constituted on December B 5, 1952 as the Rupar firm."}}, {"text": "Rupar firm", "label": "ORG", "start_char": 19928, "end_char": 19938, "source": "ner", "metadata": {"in_sentence": "On April 21, 1953 an application was presented by the partners of the Rupar firm, accompanied by the deed of partnership dated December 5, 1952 before the Income-tax Officer, Ambala for registration of the firm under s. 26-A of the Act for the assessmst c year 1953-54."}}, {"text": "Ambala", "label": "GPE", "start_char": 20033, "end_char": 20039, "source": "ner", "metadata": {"in_sentence": "On April 21, 1953 an application was presented by the partners of the Rupar firm, accompanied by the deed of partnership dated December 5, 1952 before the Income-tax Officer, Ambala for registration of the firm under s. 26-A of the Act for the assessmst c year 1953-54."}}, {"text": "s. 26", "label": "PROVISION", "start_char": 20075, "end_char": 20080, "source": "regex", "metadata": {"statute": null}}, {"text": "January 30, 1954", "label": "DATE", "start_char": 20348, "end_char": 20364, "source": "ner", "metadata": {"in_sentence": "Harbhajan Lal in his statement dated January 30, 1954 and tie other partners in their statements dated February 27, 1954 admitted that Gosain Chander Bhan had entered into the partnei:- D ship not in his individual capacity but on behalf of the Ferozepore firm."}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 21248, "end_char": 21254, "source": "regex", "metadata": {"statute": null}}, {"text": "August 12, 1954", "label": "DATE", "start_char": 21453, "end_char": 21468, "source": "ner", "metadata": {"in_sentence": "In appeal his order was, however, reversed by the Appellate A.isi.stant Commissioner by his order dated August 12, 1954."}}, {"text": "September 5, 1955", "label": "DATE", "start_char": 21624, "end_char": 21641, "source": "ner", "metadata": {"in_sentence": "The appeal preferred therefrom by the Income-tax Officer before tile Income-tax Appellate Tribunal (Delhi Branch) was dismissed by it by its order dated September 5, 1955."}}, {"text": "s. 66( 1)", "label": "PROVISION", "start_char": 21887, "end_char": 21896, "source": "regex", "metadata": {"statute": null}}, {"text": "March 5, 1956", "label": "DATE", "start_char": 22000, "end_char": 22013, "source": "ner", "metadata": {"in_sentence": "The Tribunal, however, rejected the H application on March 5, 1956."}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 22091, "end_char": 22099, "source": "regex", "metadata": {"statute": null}}, {"text": "SIJPREMB", "label": "PETITIONER", "start_char": 22185, "end_char": 22193, "source": "ner", "metadata": {"in_sentence": "18,6\n\nSIJPREMB\n\nCOURT\n\nREPORTS\n\n(1966] 3 SCR."}}, {"text": "Gosain Chander Bhan and Company of Ferozepur", "label": "ORG", "start_char": 22605, "end_char": 22649, "source": "ner", "metadata": {"in_sentence": "At the A hearing, however, only the following two questions were pressed on his behalf :\n\n\" ( 1 ) Whether there is any material on the record to support the finding that Gosain Chander Bhan was the real partner of the assessec firm and was not a partner in the representative capacity representing all the partners of Gosain Chander Bhan and Company of Ferozepur? ("}}, {"text": "Chander Bhan Harbhajan Lal", "label": "PETITIONER", "start_char": 23408, "end_char": 23434, "source": "ner", "metadata": {"in_sentence": "The question of law, according to learned Additional Solicitor General, is : \"whet!Ler on the facts and circumstances of the case the firm Chander Bhan Harbhajan Lal was registrable under s. 26-\n\nA\".", "canonical_name": "Chander Bhan Harbhajan °Lal"}}, {"text": "s. 26", "label": "PROVISION", "start_char": 23457, "end_char": 23462, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66", "label": "PROVISION", "start_char": 24169, "end_char": 24174, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66(2)", "label": "PROVISION", "start_char": 24409, "end_char": 24417, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 66", "label": "PROVISION", "start_char": 24539, "end_char": 24549, "source": "regex", "metadata": {"statute": null}}, {"text": "Gosain Chauder Bhan & Co.", "label": "ORG", "start_char": 25148, "end_char": 25173, "source": "ner", "metadata": {"in_sentence": "( 1) The original firm Gosain Chauder Bhan & Co., was C formed at Ferozepore on December 29, 1948."}}, {"text": "Gosain Chand.er Bhan", "label": "PETITIONER", "start_char": 25229, "end_char": 25249, "source": "ner", "metadata": {"in_sentence": "(2) Gosain Chand.er Bhan had a major share therein .", "canonical_name": "Gosaiii Chander Bhan"}}, {"text": "June\n\n14. 1952", "label": "DATE", "start_char": 25329, "end_char": 25343, "source": "ner", "metadata": {"in_sentence": "(3) This firm was dissolved and re-constituted on June\n\n14."}}, {"text": "December 5 1952", "label": "DATE", "start_char": 25633, "end_char": 25648, "source": "ner", "metadata": {"in_sentence": "6) The partnership deed of December 5 1952 specified the names of 14 persons including Gosain Chander Bhan as partners but did not specify the names of all the partners of Gosain Chander Bhan & Co. of Ferozepore."}}, {"text": "Gosain Chander Bhan & Co. of Ferozepore", "label": "ORG", "start_char": 25778, "end_char": 25817, "source": "ner", "metadata": {"in_sentence": "6) The partnership deed of December 5 1952 specified the names of 14 persons including Gosain Chander Bhan as partners but did not specify the names of all the partners of Gosain Chander Bhan & Co. of Ferozepore."}}, {"text": "Harbhajan Lal", "label": "RESPONDENT", "start_char": 25949, "end_char": 25962, "source": "ner", "metadata": {"in_sentence": "8) Harbhajan Lal and other partners of Rupar firm admitted that Gosain Chander Bhan was not a partner in the Rupar Firm in his individual capacity but had joined it on behalf of the Ferozepore firm. (", "canonical_name": "Harbhajan Lal"}}, {"text": "Rupar Firm", "label": "ORG", "start_char": 26055, "end_char": 26065, "source": "ner", "metadata": {"in_sentence": "8) Harbhajan Lal and other partners of Rupar firm admitted that Gosain Chander Bhan was not a partner in the Rupar Firm in his individual capacity but had joined it on behalf of the Ferozepore firm. ("}}, {"text": "June 14, 1954", "label": "DATE", "start_char": 26739, "end_char": 26752, "source": "ner", "metadata": {"in_sentence": "At this stage\n\nl would like to mention that the High Coun committed an obvious error in stating in its judgment that the re-ronstituted Ferozepore partnership was formed on June 14, 1954, that is, after the Rupar partnership was formed."}}, {"text": "Lindley", "label": "OTHER_PERSON", "start_char": 27307, "end_char": 27314, "source": "ner", "metadata": {"in_sentence": "Since in point of fact the Rupar partnership came into existence after the fonnation of tb.e Ferozepore partnership the latter callnot stand in relation to the former as a sub-partnersh; p. The law as stated in Lindley on Partnership at p. 99 is :\n\n\"A sub-partnership is as it were, a partnership within a partnership : it presupposes the existence of a partnership to which it is itself subordinate.\""}}, {"text": "s. 26", "label": "PROVISION", "start_char": 27698, "end_char": 27703, "source": "regex", "metadata": {"statute": null}}, {"text": "section 26", "label": "PROVISION", "start_char": 30569, "end_char": 30579, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 30596, "end_char": 30610, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "A Assi", "label": "PETITIONER", "start_char": 31790, "end_char": 31796, "source": "ner", "metadata": {"in_sentence": "The first sentence of para 6 of the order of the Appellate A Assi; tant Commissioner quoted above paraphrases the provisions of s. 4 of the Partnership Act and is unexceptionable."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 31859, "end_char": 31863, "source": "regex", "metadata": {"statute": null}}, {"text": "section 26", "label": "PROVISION", "start_char": 32362, "end_char": 32372, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 32376, "end_char": 32396, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 26", "label": "PROVISION", "start_char": 32557, "end_char": 32562, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act, 1922", "statute": "Income-tax Act, 1922"}}, {"text": "Ferozeporc firm", "label": "PETITIONER", "start_char": 32879, "end_char": 32894, "source": "ner", "metadata": {"in_sentence": "According to the appellant, the Ferozeporc firm\n\nas a firm has become partner in the Rupar firm and not merely Gosain Chander Bhan.", "canonical_name": "Ferozepore firm"}}, {"text": "Chander Bhan Harbhajan Lal", "label": "PETITIONER", "start_char": 33482, "end_char": 33508, "source": "ner", "metadata": {"in_sentence": "The whole question which arises in this F case is whether in the facts and circumstances of this case the fim1 Chander Bhan Harbhajan Lal was registrable under s. 26-A, the circumstances being that a partner of another and pre-existi11g firm became a partner in Chander Bhan Harbhajan Lal on behalf of the partners of that other firm, that he had brought in funds belonging to that firm and that the new firm was to carry on busi- G ness of the same kind as the old firm was carrying on.·", "canonical_name": "Chander Bhan Harbhajan °Lal"}}, {"text": "s. 26", "label": "PROVISION", "start_char": 33531, "end_char": 33536, "source": "regex", "metadata": {"statute": null}}, {"text": "Laxmi\n\nTrading Co.", "label": "ORG", "start_char": 34380, "end_char": 34398, "source": "ner", "metadata": {"in_sentence": "H. LAL (Mudholkar, /.) 191\n\nA The Tribunal merely referred to the dec; sions in Laxmi\n\nTrading Co.'s case (1) and in Agardih Colliery Co.'s case(') and dismissed the department's appeal."}}, {"text": "Agardih Colliery Co.", "label": "ORG", "start_char": 34417, "end_char": 34437, "source": "ner", "metadata": {"in_sentence": "H. LAL (Mudholkar, /.) 191\n\nA The Tribunal merely referred to the dec; sions in Laxmi\n\nTrading Co.'s case (1) and in Agardih Colliery Co.'s case(') and dismissed the department's appeal."}}, {"text": "s. 26", "label": "PROVISION", "start_char": 35896, "end_char": 35901, "source": "regex", "metadata": {"statute": null}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 36242, "end_char": 36251, "source": "ner", "metadata": {"in_sentence": "There Subba Rao J., speaking for the Court has observed :\n\n\"A partner may be the karta of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may, under an agreement, express or implied, be the representative of a group of persons; he may be a benamidar for another."}}, {"text": "(1965] 2 S.C.R. 22", "label": "CASE_CITATION", "start_char": 36818, "end_char": 36836, "source": "regex", "metadata": {}}, {"text": "Rupar firm", "label": "PETITIONER", "start_char": 37998, "end_char": 38008, "source": "ner", "metadata": {"in_sentence": "A further question which arises on the particular facts of this case is whether the Rupar firm can be said to have legal existence because its real partners are not merely 14 persons but there are 7 persons in addition to that number."}}, {"text": "s. 11", "label": "PROVISION", "start_char": 38174, "end_char": 38179, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act, 1956", "label": "STATUTE", "start_char": 38187, "end_char": 38206, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 4", "label": "PROVISION", "start_char": 38208, "end_char": 38212, "source": "regex", "metadata": {"linked_statute_text": "the Companies Act, 1956", "statute": "the Companies Act, 1956"}}]}
{"document_id": "1966_3_193_197_EN", "year": 1966, "text": "F .\n\n• G\n\nI '\n\nSIR HUKUMCHAND & MANNALAL CO.\n\nCOMMISSIONER OF INCOME-TAX,\n\nMADHYA PRADESH January 4, 1966\n\n(K. SUBBA RAO, J. C. SHAH AND S. M. SIKRI, JJ.]\n\nIncome-tax Act ( 11 of 1922), s. 26A and Income-tax Rules, rr. 6A. and 6B---Order of cancellation under r. 6B-If appea/ab/e.\n\nThe Income1-tax Officer cancelJ-00 the certificate of renewal of reg; stration of the appellant-firm, under r. 6B of the Income-tax Rules, on the ground that the firm was not a genuine ono.\n\nThe Appellate Assistant C'<Jmmissioner, the Tribunal and the High Court o.n reference, held that no appeal lay against 1he order of the Incometax Officer to the Appellate Aaistant Commissioner under s. 30(1) of 1he Income-rnx Act, 1922.\n\nIn appeal to this Court, HELD :The words \"refusal to register a firm\" in s. 30 are wide enough to take in the orders made under rr. 6A and 6B refusing to renew\n\nn~4!atration and also cancelling the certificate so renewed, and such an order directly attracts the appellate jurisdiction conferred on the Appellate A.o.sistant Commissioner under the section. [196 E; 197 F]\n\nThe fact that s. 30 provides for an appeal separately against the orders under s. 23 ( 4) either refusing to register a firm or cancelling the registration of a firm, but provides in the context of s. 26A, for an appeal only against an order refusing to register the firm, does not affect this con>- truction of s. 30, because, when s. 30 provides for an appeal against the orders under s. 23 ( 4), it has merely incorporated the two forms of orders embodied in s. 23 ( 4), and, when it provides for an appeal against the order under s. 26A, it has used a general word, for the nature of the order under s. 26A is not described but is left to be prescribed under the Rules. The application under s. 26A made to the Income-tax Officer on behalf of a firm for registration for the purposes of th<: Act, will be diaposed of in the manner prescribed by rr. 6A and 6B. Under these Rules, the Income-tax Officer is authorised to make three kinds of orders, namely,\n\n(i) he can refuse to renew the registration; (ii) he can register; and (iii) he can cancel the1 renewal if he is satisfied that a renewal was obtained without there being a genuine firm in existence.\n\nBut the three kinds of orders, having regard to th~ circumstances of each case, will be made only on an application for renewal of registration, because, the Rules do not provide for independent proceedings to the cancellation. of the renewed eertificate.\n\nWhen the Income-tax Officer cancels a renewed certificate, he sets aside his earlier order and refuses a renewal, with the result that, an order of refusal to renew a certificate and the order cancelling the renewed certificate are given the same effect, namely, refusal of the application to register.\n\nIt follows that the order cancelling registration is nothing more than refusing to rinew the certificate of registration. [196 A-E: 197 C-El\n\nCIVIL APPELLATE JURISDICTION :Civil Appeal No. 223 of 1965.\n\nAppeal from the judgment and order dated February 23, 1962 of the Madhya Pradesh High Court in Misc. Civil Case No. 165 of 1961.\n\nN. A. Palkhiva/a, S. T. Desai, T.A. Ramachamlran, I. B.\n\nA Dadac/zanji, for the appellant.\n\nA. V. Viswanatha Sastri, R. H. Dhebar, N. D. Karkha11is and R. N. Sachthey, for the respondent.\n\nThe judgment of the Court was delivered by B Sobba Rao, J.\n\nThis appeal, on a certificate granted by the Madhya Pradesh High Court, raises the question whether an appeal lies under s. 30(1) of the Indian Income-tax Act, 1922, hereinafter called the Act, to the Appellate Assistant Commissioner against the order of an Income-tax Officer cancelling an order granting registration of a firm under s. 26-A of the Act.\n\nThe facts material for the said question may be briefly stated.\n\nThe appellant is a firm constituted under a deed of parlnership dated July 16. 1948. The Income-tax Officer registered the said firm under s. 26-A of the Act for the year 1950-51.\n\nThe registration was renewed for the years 1951-52 and 1952-53. On D November 30, 1957, the Income-tax Officer renewed the registration for the assessment year 1953-54. On March 6, 1959, on the ground that the firm was not a genuine one, the said officer cancelled the registration under Rule 6-B of the Income-tax Rules.\n\nThe appellant preferred an appeal against that order to the Appellate Assistant Commissioner, Indore.\n\nOn July 15, ~59, the E said Assistant Commissioner rejected the appeal for the reason that no appeal lay against the order of the Income-tax Officer cancelling the registration.\n\nThe appeal filed by the appellant against that order to the Income-tax Appellate Tribunal, Bombay, was dismissed.\n\nAt the instance of the appellant, the folfowing F question was referred to the High Court under s. 66 ( I ) of the Act:\n\n\"Whether on the facts and circumstances of the case, the order passed by the Income-tax Officer under Rule 6-B of the Indian Income-tax Rules cancelling the certificate of renewal of registration granted to the assessee is appealable under section 30 of the Incometax Act.\"\n\nA Division Bench of the High Court of Madhya Pradesh answered the reference against the appellant. It held that no appeal lay\n\nunder s. 30 of the Act against the order of the Income-tax Officer H cancelling registration to the App.llate Assistant Commis, ioner.\n\nHence the appeal.\n\n• ..\n\nThe only question in this appeal is, whether an order cancelling the certificate of renewal of registration made under s. 26A of the Act by an Income-tax Officer is subject to an appeal under s. 30( l) to tho Appellate Assistant Commissioner.\n\nAt the outset, the relevant provisions may be usefully read :\n\nSection 26-A. ( 1) Application may be made to the Income-tax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners, for registration for the purposes of this Act and of any other enactment for the time being in force relating to income-tax or super-tax.\n\n(2) The application shall be made by such person or persons, and at such times and shall contain such particulars and shall be in such form, and be verified in such manner, as may be prescribed and it shall be dealt with by the Income-tax Officer in such manner as D may be prescribed.\n\nRule 6. Any firm to whom a certificate of registration has been granted under Rule 4 may apply to the Income-tax Officer to have the certificate of registration renewed for a subsequent year ........ .\n\nRule 6-A. On receipt of an application under Rule 6 the Income-tax Officer may, if he is satisfied that the application is in order and that there is or was a firm in existence constituted as shown in the Instrument of Partnership, grant to the assessee a certificate signed and dated by him in the following form :-\n\nRule 6-B. In th.e event of the Income-tax Officer being satisfied that the certificate granted under Rule 4, or under Rule 6-A, has been obtained without there beil1£ a genuine firm in existence, he may cancel the certificate ~; o granted.\n\nSection 30. ( 1) Any assessee ........ objecting to the cancellation by an Income-tax Officer of the registration of a firm under sub-section ( 4) of section 23 or to a refusal to register a firm under sub-section ( 4) of section 23 or section 26-A ............ may appeal to the Appellate Assistant Commissioner against the assessment or against such refusal or order.\"\n\nThe gist of the said provisions relevant to the prnt enquiry may A be stated thus : Under s. 26-A of the Act an application may be made to the Income-tax Officer on behalf of a firm for registration for the purposes of the Act.\n\nSuch an application has to be tiled and disposed of in the manner prescribed in the Act. Under the Rules, an application for the renewal of registration of a finn which has already been registered in the previous years has 10 he lilcd before the Income-tax Officer.\n\nThat application will be disposed of in the manner prescribed by Rules 6-A and 6-B. l.lnder those rules, the Income-tax Officer is authorized to make three kinds of orders, viz .. (i) he can refuse to renew the registration of the firm; (ii) he can register the firm; and (iii) he can\n\nancel the renewal of registration if he is satisfied that the renewal has been obtined without there being a genuir.e firm in existence.\n\nThe crucial point to be noticed is that the said three kinds of orders, having regard to the circumstances of each case, will be made only in the application for renewal of registration.\n\nThe Rules do not provide for independent proceedings for the cancellation of the renewed certificate. In effect, the Income-tax Officer, after setting aside his earlier wrong order made under a misapprehension, refuses renewal of the certificate of registration.\n\nIf , o, it follows that the order cancelling registration is nothing more than refusing to renew the certificate of regitration. If that be the construction of an order made cancelling the certificate renewed, such an order directly attracts the appellate jurisdiction conferred on the Appellate Assistant Commissioner under s. 30 of the Act.\n\nBut Mr. Viswanatha Sastry for the Revenue contended that there was internal evidence in s. 30 of the Act itself to show tht F such a construction was not possible.\n\nHe further argued that under the Income-lax law there was no scope for equitable considerations. and under the express provisions of s. 30 no appeal lay against the order of the Income-tax Officer cancelling the certificate of registration.\n\nIn support of his contention he relied upon that part of s. 30 of the Act which we have extracted earlier G and contended that when the Legislature in the context of th.e orders made under s. 23 ( 4) spoke separately of the order of canccllation of registration of a firm and an order refusing to register a firm and in the same section, in the context of s. 26-A, it mentioned only refusal to register a firm, it clearly expressed its mind that in the former case an appeal would lie against both the H orders, whereas in the latter case an appeal would lie only against one of the orders. There is some force in this argument.\n\nBut a\n\n. )\n\n' •\n\nA careful reading of the provisions of s. 23 ( 4) and s .. 26A brings out the difference in the phraseology used in s. 30 in the matter of appeals against orders made under the said two sections. The relevant parts of s. 23(4) ands. 26-A(2) may be placed in juxtaposition:\n\nB Section 23(4) ...... the incometax Officer . ... in t)ae case of a firm, may refuse to reaiiter it or may cancel its regist ration if it is already registered.\n\nSection 26-A(2) The application shall be ...... dealt with by the Incometax Officer in such manner as may be prescribed.\n\nc A comparative study of the relevant parts of these two provisions at once shows the distinction between the two. Under s. 23( 4) while the Income-tax Officer can make an order refusing to regiilter a firm or may cancel the registration if it is already registered, under s. 26-A(2) he can only make an order in such manner as may be prescribed. The manner prescribed, as we have already D indicated earlier, provides for three different kinds of orders to bo made in the same application with the result that an order of refusal to renew a certificate and the order cancelling the certificate renewed are given the same effect, namely, refusal of the application to register.\n\nThat apart, when s. 30 provides for an appeal against the orders under s. 23 ( 4) and also against orders under E a. 26-A, it has incorporated the two forms of orders embodied in s. 23 ( 4) and used a general word in providing an appeal againat an order under s. 26-A, for the nature of order is not described but left to be prescribed under the Rules.\n\nIf so, it follows that the words \"refusal to register a firm\" in F s. 30 of the Act are wide enough to take in the orders made under rr. 6-A and 6-B refusing to renew the registration and also cancelling the certificate so renewed.\n\nBy so holding we are not unaware that equity has no place in construing the provisions of the Income-tax Act. Indeed, we have G not introduced any equitable consideration in the matter of construction. We have come to the conclusion on a fair reading of the relevant provisions of the Act and the Rules made thereunder.\n\nIn the result, we answer the question propounded for the High Court's decision in th.c affirmative. The order of the High Court is set aside and the appeal is allowed 'With costs.\n\nAppeal allowed.", "total_entities": 70, "entities": [{"text": "SIR HUKUMCHAND & MANNALAL CO", "label": "PETITIONER", "start_char": 15, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "SIR HUKUMCHAND & MANNALAL CO", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX,\n\nMADHYA PRADESH", "label": "RESPONDENT", "start_char": 46, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, MADHYA PRADESH", "offset_not_found": false}}, {"text": "K. SUBBA RAO, J.", "label": "JUDGE", "start_char": 108, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 125, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 137, "end_char": 153, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 156, "end_char": 170, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 186, "end_char": 192, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30(1)", "label": "PROVISION", "start_char": 672, "end_char": 680, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-rnx Act, 1922", "label": "STATUTE", "start_char": 688, "end_char": 708, "source": "regex", "metadata": {}}, {"text": "s. 30", "label": "PROVISION", "start_char": 784, "end_char": 789, "source": "regex", "metadata": {"linked_statute_text": "Income-rnx Act, 1922", "statute": "Income-rnx Act, 1922"}}, {"text": "s. 30", "label": "PROVISION", "start_char": 1097, "end_char": 1102, "source": "regex", "metadata": {"linked_statute_text": "Income-rnx Act, 1922", "statute": "Income-rnx Act, 1922"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 1162, "end_char": 1167, "source": "regex", "metadata": {"linked_statute_text": "Income-rnx Act, 1922", "statute": "Income-rnx Act, 1922"}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 1281, "end_char": 1287, "source": "regex", "metadata": {"linked_statute_text": "Income-rnx Act, 1922", "statute": "Income-rnx Act, 1922"}}, {"text": "s. 30", "label": "PROVISION", "start_char": 1395, "end_char": 1400, "source": "regex", "metadata": {"linked_statute_text": "Income-rnx Act, 1922", "statute": "Income-rnx Act, 1922"}}, {"text": "s. 30", "label": "PROVISION", "start_char": 1416, "end_char": 1421, "source": "regex", "metadata": {"linked_statute_text": "Income-rnx Act, 1922", "statute": "Income-rnx Act, 1922"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 1470, "end_char": 1475, "source": "regex", "metadata": {"linked_statute_text": "Income-rnx Act, 1922", "statute": "Income-rnx Act, 1922"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 1545, "end_char": 1550, "source": "regex", "metadata": {"linked_statute_text": "Income-rnx Act, 1922", "statute": "Income-rnx Act, 1922"}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 1617, "end_char": 1623, "source": "regex", "metadata": {"linked_statute_text": "Income-rnx Act, 1922", "statute": "Income-rnx Act, 1922"}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 1687, "end_char": 1693, "source": "regex", "metadata": {"linked_statute_text": "Income-rnx Act, 1922", "statute": "Income-rnx Act, 1922"}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 1779, "end_char": 1785, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 3074, "end_char": 3099, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and order dated February 23, 1962 of the Madhya Pradesh High Court in Misc."}}, {"text": "N. A. Palkhiva", "label": "PETITIONER", "start_char": 3138, "end_char": 3152, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhiva/a, S. T. Desai, T.A. Ramachamlran, I. B.\n\nA Dadac/zanji, for the appellant."}}, {"text": "S. T. Desai", "label": "OTHER_PERSON", "start_char": 3156, "end_char": 3167, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhiva/a, S. T. Desai, T.A. Ramachamlran, I. B.\n\nA Dadac/zanji, for the appellant."}}, {"text": "T.A. Ramachamlran", "label": "LAWYER", "start_char": 3169, "end_char": 3186, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhiva/a, S. T. Desai, T.A. Ramachamlran, I. B.\n\nA Dadac/zanji, for the appellant."}}, {"text": "A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 3230, "end_char": 3253, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, R. H. Dhebar, N. D. Karkha11is and R. N. Sachthey, for the respondent."}}, {"text": "R. H. Dhebar", "label": "OTHER_PERSON", "start_char": 3255, "end_char": 3267, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, R. H. Dhebar, N. D. Karkha11is and R. N. Sachthey, for the respondent."}}, {"text": "N. D. Karkha11is", "label": "OTHER_PERSON", "start_char": 3269, "end_char": 3285, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, R. H. Dhebar, N. D. Karkha11is and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "OTHER_PERSON", "start_char": 3290, "end_char": 3304, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, R. H. Dhebar, N. D. Karkha11is and R. N. Sachthey, for the respondent."}}, {"text": "B Sobba Rao", "label": "JUDGE", "start_char": 3370, "end_char": 3381, "source": "ner", "metadata": {"in_sentence": "The judgment of the Court was delivered by B Sobba Rao, J.\n\nThis appeal, on a certificate granted by the Madhya Pradesh High Court, raises the question whether an appeal lies under s. 30(1) of the Indian Income-tax Act, 1922, hereinafter called the Act, to the Appellate Assistant Commissioner against the order of an Income-tax Officer cancelling an order granting registration of a firm under s. 26-A of the Act."}}, {"text": "s. 30(1)", "label": "PROVISION", "start_char": 3508, "end_char": 3516, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 3524, "end_char": 3551, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 26", "label": "PROVISION", "start_char": 3722, "end_char": 3727, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 26", "label": "PROVISION", "start_char": 3947, "end_char": 3952, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "November 30, 1957", "label": "DATE", "start_char": 4058, "end_char": 4075, "source": "ner", "metadata": {"in_sentence": "On D November 30, 1957, the Income-tax Officer renewed the registration for the assessment year 1953-54."}}, {"text": "March 6, 1959", "label": "DATE", "start_char": 4161, "end_char": 4174, "source": "ner", "metadata": {"in_sentence": "On March 6, 1959, on the ground that the firm was not a genuine one, the said officer cancelled the registration under Rule 6-B of the Income-tax Rules."}}, {"text": "Indore", "label": "GPE", "start_char": 4406, "end_char": 4412, "source": "ner", "metadata": {"in_sentence": "The appellant preferred an appeal against that order to the Appellate Assistant Commissioner, Indore."}}, {"text": "July 15, ~59", "label": "DATE", "start_char": 4418, "end_char": 4430, "source": "ner", "metadata": {"in_sentence": "On July 15, ~59, the E said Assistant Commissioner rejected the appeal for the reason that no appeal lay against the order of the Income-tax Officer cancelling the registration."}}, {"text": "Income-tax Appellate Tribunal, Bombay", "label": "COURT", "start_char": 4654, "end_char": 4691, "source": "ner", "metadata": {"in_sentence": "The appeal filed by the appellant against that order to the Income-tax Appellate Tribunal, Bombay, was dismissed."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 4805, "end_char": 4810, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30", "label": "PROVISION", "start_char": 5070, "end_char": 5080, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 5129, 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"PROVISION", "start_char": 7299, "end_char": 7309, "source": "regex", "metadata": {"statute": null}}, {"text": "section 26", "label": "PROVISION", "start_char": 7313, "end_char": 7323, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26", "label": "PROVISION", "start_char": 7539, "end_char": 7544, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 9146, "end_char": 9151, "source": "regex", "metadata": {"statute": null}}, {"text": "Viswanatha Sastry", "label": "OTHER_PERSON", "start_char": 9173, "end_char": 9190, "source": "ner", "metadata": {"in_sentence": "But Mr. Viswanatha Sastry for the Revenue contended that there was internal evidence in s. 30 of the Act itself to show tht F such a construction was not possible."}}, {"text": "s. 30", "label": "PROVISION", "start_char": 9253, "end_char": 9258, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 30", "label": "PROVISION", "start_char": 9463, 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"source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 12138, "end_char": 12152, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1966_3_198_207_EN", "year": 1966, "text": "RAMESH AND ANOTHER\n\nSETH GENDALAL MOTILAL PATNI AND\n\nOTHERS January 6, 1966\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYATULLAll, V. RAMASWAMI AND\n\nP. SATYANARAYANA RAJU, JJ.J\n\nConstitution of India, Art. 133-Appea/ whether lies to Supreme Court /rotn High Court's order in extraordinary civil jurisdiction under Art. 226 --l'roceeding 11der Art. 226 when a 'civil procuding\"-'Final order', wh•t C 1$.\n\nIn proceedings under s. 19(1) of lhe Madhya Pradesh Abolition of Proprie1ory Righls (Esta1es, Mabals, Alienaled Lands) Act. 1950. on the application of the appellanl, i1 was held by lhe Claims Officer 1hat the debl due to P, lhe first respondent, was a secured debt despile the fac1 1bat a decree had been passed in respect of the debt. The Claims Officer asked P to file a s1a1ement of claim under s. 22 of the Act.\n\nAlthough the Board of Revenue held that the Claims Officer had no Jurisdict'on to delermine lhc nature of debt. P, by way of caution, filed a slatement of clam under r. 22.\n\nThe Claims Officer held it lo be out of time and discharged lhe debt.\n\nOn appeal hy P the Commissioner held that although the Claims Officer had jurisdiclion to decide on the nature of the deb!, the debt was wrongly discharged by him as action under s. 22( 1) had not been\n\ntaken. The appellant thereupon filed a peliti-.1n under Arts. 226 and 227 on the ground inter a!UJ that the Commi~\\:_oner had no jurisdiction to entertain anJ decide the appeal. me High Court summarily dismissed the pctilion.\n\nThe appellants next applied for a certificale of fitness which was refused.\n\nThe appellants came to this Court by special leave and con 4 tended 1hat the High Court had wrongly refused the cen:ficare.\n\nThe quc.o; tions 1h~1t came up for consideration were: (i) \\Vhether the petition under Art. 226 in the High Court was a 'civil proceeding', (2) whether an appeal under Art. DJ lay only in a proceeding in the exercise of the appellate or ordinary civil jurisdiction of the High Court, and not the C\"Xtraordinary original c'vil jurisdiction under Art. 226 and (3) whelbcr\n\nthe order of the High Court summarily dismissing the wr:t petition of the appellants \\\\as a final order.\n\nHELD : (i) A proc1.....:din~ under Art. 226 for a \\Vrit to bring up a proceeding for considraion is a \"civil proceeding' if the original proceeding concerned civil rights. (203 GJ\n\n....\n\nThe dichotomy between c'vil and criminal proceedings made by the G t civil law jurists is apparently followed in Arts. 133 and 134 and any pro- ' cecding affecting civil i.e. private rights, \\Vhich is not criminal in nature. is civil. [203 El I S. A .. l. Narr.yan Row & Anr. v. Jshwar/al Bhagwandas & Anr ..\n\nA.LR. 1965 S.C. 1818. [1966] 1 S.C.R. 190, relied on.\n\nIn the present '\"'case the Claim!ii Officer purported to excrci5e a juri!i.- diction under which he could order the discharge of a debt which means H that the order affected the civil ri.2hts of the parties.\n\nThe C.Ommio;; sioner's order reversing the order of the Claims Officer also affected the same cvil rights.\n\nThe proceedings before the revenue authorities were therefore\n\n• •\n\n) D\n\nRAMESH v. G. M. PATNI (Hidayatul/ah J.) 19&\n\ncivil proceedigs and those in !be High Court must also be regarded as of the same nature. [203 C\"E]\n\n(ii) It is not permissible by reference to the history of appeals to the Privy Council under ss. 109 and 110 of the ClVll Procedure Code to exclude from the scope of Art. 133 matters beard by the High Court in the exerci•e of extraordinary original civil jurisdiction. Article 133 uses the wid\"'t possible language. The intention is not onll' to include all judgments, decrees and orders passed in the exercise of appellate .and rdt nary civil jurisdiction but other jurisct:ctions as well in which c!Vll rights would come up before tho High Court for decision. The drafters of the Constitution were aware that a new jurisdiction was be:ng conferred on. the High Courts under Art. 226 and that the new jurisdiction would often resulr in decision affecting civil i.e. private rights, and the need to prvide\n\nfor appeals to this Court against such decisions must have been obv'Ous.\n\nThe nght of appeal is thus stated in general words in Arts. 132 and 133 and no exception not mentioned in the articles can be implied. [204 D-GJ\n\n(iii) A petition to the High Court invoking jurisdiction under Art. 226 is a pr0; eeeding quite independent of the original controversy.\n\nA decision in the exercise of this jurisdiction whether interfering w; th the procec:dings impugned or declining to do so is a final decision in so far as the High Court is concerned if the effect is to terminate the controversy before it. [206 C-D] In the present case the High Court by summarily dismissing the appellants' writ petition upheld the jurisdiction of the Commissioner t@ make the order he did and the fact that the High Court's order was not a speaking order made no difference.\n\nThe High Court\" order had the effect of once again reviving the debt in question.\n\nThe order must be regarded as final for the purpose of appeal to this Court. [206 H-207 CJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 950 of 1965.\n\nAppeal by special leave from the judgment and order dated February 1, 1965 of the Bombay High Court (Nagpur Bench) at Nagpur in Misc. Application No. 13 of 1965.\n\nC. B. Agarwala, B. R. L. Iyengar, G.· L. Sanghi and A. G.\n\nRatnaparkhi, for the appellant.\n\nM. S. Gupta, for respondent No. 1\n\nD. R. Prem and B. R. G. K. Achar, for respondents Nos. 2 and 3. ·\n\nThe judgment of the Court was delivered by\n\nHidayatullah, J. This is an appeal by special leave against an order dated February 1, 1965 of the High Court of Bombay (Nagpur Bench) in Miscellaneous Petition No. 13 of 1965 refusing a certificate under Art. 133(1) (a) or (c) of the Constitu tion. This certificate was asked by the appellants in respect of the\n\no'.dr of t_he _High Court dated September 21, 1964 in Special C1v!I App!Jcahon No. 471 of 1964. Both these orders summariiv dismissed the respective petitions. Against the main order Special\n\nLeave Petition (Civil) No. 395 of 1965 has been filed but by an order of this Court dated July 30, 1965, it has been kept pending sine die with liberty to bring it up for hearing after the disposal of the prc, cnt appeal. This is because the appellants claim in this appeal lhat appeal lay as of right to this court and the certificate was wrongly refused by the High Court.\n\nBefore we discuss the question mooted before us we shall state the facts sufficient for the purpose.\n\nOn the passing of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals. Alienated Lands) Act, 1950,\n\nth.: appellants applied under s. 19( 1) of the Act for the deteraination of their debts, specifying the amounts and particulars of all secured debts and claims together with the name> of tac creditors. One such creditor, named by them, is Gendalal Motilal J.'atni who is the first respondent.\n\nHis debt was a mortgage debt originally but had resulted in a decree for Rs. 2,16,309.\n\nPat!!.i objected that this had ceased to be a secured debt or secured claim for the application of s. 17 (a) of the Abolition Act.\n\nD The objection was taken under s. 21.\n\nThe Claims Officer overruled the objection of Patni by an order dated November 19, 1951. He held that although the debt had merged in a decree it remained a secured debt nevertheless and that as the amount was recoverable on the date of ve.-ting, the E provisions of the Act were applicable to it. By another order of the same date the Claims Officer called upon Patni to file his statement of claim under s. 22 of the Act. Patni did not file the statement but instead preferred an appeal against the main order before the fonner Madhya Pradesh Board of Revenue. The Board of Revenue held on June 15, 1954 that the Claims Officer had no •· jurisdiction to determine the character of the debt and only the Civil Court could decide this issue.\n\nIn reaching this conclusion the Board followed a decision of the Nagpur High Court rep'1rted\n\nin Ramkrislma v. Board of Revenue(').\n\nPatni next moved the Civil Court and the Civil Court decided that the debt in question was a secured debt for the application of the Abolition Act.\n\nPatni appealed to the High Court but out of caution filed his statement of claim before the Claims Officer on January 23, 1958. The ex-proprietors (the appellants here) objected to the statement on the ground that it was out of time and asked that the claim be held discharged. The Claims Officer accepted the objection and discharged the claim by an order dated\n\n(I) A.l.R. t954 Nag. 248.\n\n~- I \"\n\nI •\n\nI , L\n\nI < ' •\n\n\":t\n\n~ \\\n\nI \\ ,\n\n> -\n\n) • '\n\n' 1\n\nA December 24, 1962. Patni appealed to the Commissioner, Nagpur Division, Nagpur (Rev. Appeal No. 2/57 /62/63) and by an order of May 5, 1964 the order of the Claims Officer was set aside.\n\nThe Commissioner pointed out that the decision of the Nagpur High Court earlier referred to was overruled in the subsequent case of the High Court reported in A.I.R. 1956 Nagpur 193 B and the Claims Officer had jurisd 'ction to pronounce on the character of the debt. The order of the Claims Officer of November 19, 1951 was thus held to have revived but the claim could not be discharged as action under s. 22 ( 1) had not been taken.\n\nThe case was remanded to the Claims Officer for disposal accord- C ing to law.\n\nThe appellants thereupon filed a petition under Arts. 226 and 227 of the Constitution in the High Court of Bombay (Nagpur Bench) on the ground that the Commissioner had no jurisdiction . to entertain and decide the appeai and that the Claims Officer had ordered the continuation of the proceedings and so the order of D the Commissioner was w/ong.\n\nThe High Court summarily dismissed the petition by its first order dated September 21, 1964 against which Special Leave Petition (Civil) No. 395 of 1965 has been filed.\n\nThe appellants next applied for a certificate which was refused by order dated February 1, 1965, impugned in the present appeal, and the question involved is : whether the E appellants were entitled to a certificate as of right under Art. 133 (1 )(a) or (b) ?\n\nThis question falls to be considered under Art. 133 of the constitution.\n\nThat article reads :\n\n133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters.\n\n( 1) An appeal shall lie to the Supreme Court from any judgment, decree or final order .in a civil proceeding of a High Court in the territory of India if the High Court certifies-\n\n(a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or\n\n(b) that the judgment, decree or final order involves directly or indirectly some claim or question 19 Sup CI/66-J.1\n\n202 SUPllEME\n\nCOURT P.EPOllTS\n\n[ 1966] 3 S.C.R.\n\nrespecting property of the like amount or value; or\n\n( c) that the case is a fit one for appeal to the Supreme Court; and, where the judgment, decree or final order appealed from affirms the decision of tho court immediately below in any case other than a case referred to in sub-clause ( c). 1f the High Court further certifies that the appeal\n\ninvolves some substantial question of law. (Clauses (2) and (3) of Art. 133 are not relevant).\n\nUnder sub-els. (a) and (b) of cl. (I) of this article an appeal lies on certificate of the High Court.\n\nTha~ certificate may only be issued in cases in which the amount or value of the subject . matter of the dispute in the court of first instance and still in dispute on appeal to the Supreme Court was or is not less than Rs.\n\n20,000 or the Judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amout or value.\n\nSub-clause ( c) is free from any monetary valuation, and under it a special certificate can be issued even in cases involving claims or questions respecting properly less than Rs. 20,000 if the High Court considers the case as fit for appeal.\n\nOther considerations then apply which need not be considered here. The present appeal involves a consideration of sub-els. (a) and (b) only, because, it is submitted, the certificate was claimable as of right.\n\nThere is, to begin with, no doubt that the amount or value of\n\nthe subject matter of the dispute in the High Court and still in dispute on appeal to this Court is well above Rs. 20,000.\n\nThis F attracts sub-cl. (a). In any event, the decision of the High Court mvolves directly or indirectly a claim above that amount and that attracts sub-cl. (b). Mr. M. S. Gupta for the answering respondent docs not rightly contest this fact. He submits that cl. (I) of Art. 133, considered as a whole, gives a right of appeal only against judgments, decrees or final orders passed by !he High G Court in the exercise of either the appellate jurisdiction or ordinary original civil jurisdiction (where a High Court possesses that jurisdiction under its Letters Patent) but not against a judgment, decree or final order cpassed in the exercise of extra-ordinary original civil jurisdiction under Art. 226 of the Constitution. He further submits that an order dismissing summarily a petition 11 under Art. 226 of the Constitution is not a judgment. decree or final order from which an appeal can properly be brought under\n\n< • '\n\n• •\n\n• ). (\n\nI \\\n\n'} • ' '\n\nArt. 133.\n\nLastly, he submits that a proceeding co=enced on an application for a writ is not a civil proceeding at all.\n\nArticle 133 must cover all civil proceedings because no exception is indicated.\n\nThe question is whether the proceeding in tire High Court Cl!n be described as civil proceedings. The High Court in the present case was invited to interfere by issuing writs of certiorari and prohibition against the reopening of the case in which the Claims Officer had discharged a debt due to the answering respondent.\n\nThe revenue authorities in such matters act analogously to civil courts, have a duty to act judicially, and pronounce upon the rights of parties. In the present case the Claims Officer purported to exercise a jurisdiction under which he could order the discharge of a debt which means that the order affected the civil rights of the parties. The Commissioner's order reversing the order of the Claims Officer also affected the same civil rights of the parties. The proceedings before the revenue authorities thus were concerned with the civil rights of two contending parties.\n\nThey were civil proceedings. The proceedings in the High Court must also be regarded as of the same nature.\n\nThe term civil proceeding has been held in t.i:tis Court to include, at least, all proceedings affecting civil rights, which are not criminal.\n\nThe dichotomy between civil and criminal proceedings made by the Civil Law jurists is apparently followed in Arts. 133 and 134 E and any proceeding affecting civil i.e. private rights, which is not criminal in nature, is civil. This view was expressed recently by this Court in S. A. L. Narayan Row and another, etc. v. lshwarlal Bhagwandas and another, etc.('). Shah J, speaking for the majority, first summarises all the provisions in the Constitution bearing upon appeals to this Court -and after analysis, holds that F the words \"civil proceeding\" are used in the widest sense, that in contradistinction to criminal proceedings they cover all proceedings which affect directly civil rights.\n\nA proceeding under Art. 226 for a writ to bring up a proceeding for consideration must be a civil proceeding, if the original proceeding concerned civil rights.\n\nHere the civil rghts of the parties were directly involved and the G proceeding before the High Court was thus a civil proceeding.\n\nThe first requisite for the application of Art. 133(1) is thus satisfied.\n\nThe n.ext question is what are the different kinds of decision~ from which appeals lie under Art. 133. Mr. Gupta's conten- H tion that under that article an appeal can only lie in respect of a judgment or decree or final order passed b the exercise of appel-\n\n(1) A.l.R. 1965 S.C. 1818 : (1966] 1.S.C.R. 190\n\nA late or ordinary original civil jurisdiclion but not of ex1raordinary original civil jurisdiction, is not right.\n\nHe is apparently harking back to the provisions for appeal in ss. I 09 and 110 of the Code of Civil Procedure and inasmuch as appeals under those sections were available against judgments, decrees and final orders passed in the exercise of appellate or ordinary original civil jurisdictions only, he thinks, the same position continues still to obtain B and judgments, decrees or final orders passed in the exercise of the extraordinary or.g.nal civil jurisdicti.u1 are excluded.\n\nHe seeks, in other words, to iimit the opening words of Art. 133 (!) by reference to the history of appeals to the Privy Council under ss. 109 and 110 of the Code of Civil Procedure.\n\nIn M1111icipal C Officer, Aden v. Abdul KtUim( 1) this distinction in fact was made\n\nand the provisions of the amended cl. ( 40) of the Letters Patent of the Bombay Hgh Court were called in aid.\n\nMr. Gupta cannot avail himself of the same argument in view of the use of the words \"any judgment. decree or final order in a civil proceeding of a High Court\" in the opening part of Art. 133(1).\n\nArticle 133 not only discards the distinction between appeilate and original jurisdictions but deliberately u•ed words which are as wide as language can make them.\n\nThe intention is not only to include all judgments, decrees and orders passed in the exercise\n\nof appellate and ordinary original civil jur:sdiction but also to make the language wide enough 10 cover other jurisdictions under Ii:. which civil rights would come before the High Court for decision.\n\nThe drafters of the Constitution were aware that a new jurisdiction was being conferred on the High Courts by Art. 226 of the Constitution and proceedings before any court or Tribunal within the jurisdiction of the High Court, including in appropriate cases before Government would he broul!ht before the High Court and F dealt with by issuing writs of certiorari, mandamus and prohibition.\n\nThat the new jurisdiction would often result in decisions affecting civil i.e. private rights must have been apparent and the need to provide for armeals to thi< Court from the determinations of the Courts must have been equally obvious.\n\nThe right of appeal to this Court is thus stated in general words in Arts. 132, 133 and no excention not mentioned in the articles can be implied.\n\nCa<es involving an interpretation of the Constitution are dealt with in Art. 132.\n\nThat article covers all cases in which a High Court certifie, that any judgment. decree or final order of the H High Court involves a substantfal question as to the interpretation --- ,,_ ·-·- -·· ·-. - (I) l.L.R. 28 Born. 292.\n\nI I\n\n• ,/\n\n, •\n\nRAMESH V. G. M. PATNI (Hidaya(ullah J.) 205\n\nA of the Constitution. A certificate under that article may issue in any civil, criminal or other proceeding to bring to appeal a judgment, decree or final order of the High Court. The reference to \"other proceedings\" was considered necessary because there are certain proceedings, which are not strictly civil or criminal in nature and they may yet involve the interpretation of the consti- B tution.\n\nArticle 132, therefore, omits no decision if a substantial question as to the interpretation of the Constitution is necessary to be decided, provided, of course, that the decision in respect of which the certificate is asked or granted is \"a judgment, decree or final order\". c Article 133, on the other hand, provides for appeals against any judgment, decree or final order in a \"civil proceeding\". We have explained what is meant by a civil proceeding and have held that such proceedings must concern civil rights including those arising from status as well as contract. Once that test is satisfied the word \"proceeding\" is a word of very wide import. We have D held that the proceeding in the High Court wa< a civil proceeding and although it was for the exerc se of ex<raordinary original civil jurisdiction, the word \"any\" must take in a decision provided it is a judgment, decree or final order.\n\nMr. Gupta, however, submits that the order of the High Court E was not \"a judgment, decree or final order\" and gives two reasons.\n\nHe says that as the order said nothing about the merits of the controversy it cannot amount to the kind of determination wh\"ch those words contemplate and that as it does not of its own force affect the rights of the parties or finally put an end to the controversy it cannot be regarded as final.\n\nF There is no doubt that the order must possess a finality for that is what the article itself says. It is also true that it has been held that an order is not a final order, unless it finally disposes of the rights of the parties and does not leave them to be determined in the ordinary way or as it is said that if the suit is still a Jive suit G in which the rights of the parties have still to be determned, there is no finality and no appeal lies. Mr. Gupta has brought to our notice all the cases of the Judicial Committee and this Court in which this test has been appfad.\n\nThe submissions of Mr. Gupta would have had considerable force if we were considering the exerche of appellate or revis'onal H jurisdictions of the High Ourt and the whole of the controversy\n\nhad not been decided by the High Court. An appeo.1 and a revision is a continuation of the original suit or proceeding and the\n\nfinality must therefore attach to the whole of the matter and the A matter should not be a live one after the decision of the High Court if it is to be regarded as final for the purpose of appeal under Art. 133. ••\n\nWe are concerned here with the exerc.se of extraordinary original civil jurisdiction under Art. 226.\n\nUnder that jurisdiction. the High Court docs nol hear an appeal or revision.\n\nThe High Court is moved to intervene <md to bring before itself, the record of a case decided by or pending before a court or tribunal or any authority within the High Court's jurisdiction. A petition\n\nto the High Court invoking this jurisdiction is a proceeding quite independent of the original controversy. The controvcr.; y in the C High Court, in proceedings arising under Art. 226 ordinarily is whether a decision of or a proceeding before, a court or tribunal or authority. should be allowed to stand or should be quashed. for want of jurisdiction or on account of errors of law apparent on the face of the record.\n\nA decision in the exercise of this jurisdiction, whether interfering with the proceeding impugned or declining to do so, is a final decision in so far as the High Court is concerned because it terminates finally the special proceeding before it.\n\nBut it is not to be taken that any order will be a final order.\n\nThere are orders and orders.\n\nThe question will always arise what has the High Court decided and what is the effect of the order.\n\nIf. for example. the High Court declines to interfere because all the remedies open under the law are not exhausted, the order of the High Court may not possess that finality wh; ch the article contemplates.\n\nBut the order would be final if the jurisdiction of a tribunal is questioned and the High Court either upholds it or does not. In either case the controversy in the High Court is finally decided.\n\nTo judge whether the order is final m that sense it is no! alw:iys necessary to correlate the decision m every case with the facts in controvc\"y especially where the question is one of jurisdiction of the court or tribunal.\n\nThe answer to the question whether the order is final or not will not depend on vhether the controversy is finally over hut whether the controversy raised before the High Court is finally over or not.\n\nIf it is, theorder will be appealable provided the other condit:on' arc satified, otherwise not.\n\nIn the present case the question raised was whether the Commissioner had jurisdiction to set aside the discharge of the debt ordered by the Claims Officer.\n\nThis jurisdiction was challenged hy the proceedings under Art. 226. The High Court sum-\n\n• ,\n\n; ).\n\n• ' . '\n\nmarily dismissed the petition. In other words, it upheld the jurisdiction and in the cfrcumstances it makes no difierence whether the High Court pronounced a speaking order or not. By its decision the High Court has finally decided the question of jurisdiction.\n\nIt is obvious that if the High Court had decided to hold that there was no jurisdiction, the debt would have stood discharged. The order once again revived the debt. Now the order of the Commissioner was challenged on the ground of jurisdiction in a separate proceeding. The High Court decided to dismiss the petition and the order that was passed must be regarded as final for the purpose of appeal to this Court. As the other requirements of the article were satisfied the High Court was in error in refusing the certificate in this case.\n\nThe appeal must, therefore, succeed. The order dated Feb< ruary 1, 1965 is set aside and the case will now go back to the High Court for disposal according to law. The first respondent shall bear the costs of the appellant.\n\nCivil Miscellaneous Petition No. 2180 of 1965 was not pressed and is dismissed. There will be no order as to costs in this petition.\n\nAppeal allowed.", "total_entities": 90, "entities": [{"text": "RAMESH AND ANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "RAMESH AND ANOTHER", "offset_not_found": false}}, {"text": "SETH GENDALAL MOTILAL PATNI AND\n\nOTHERS", "label": "RESPONDENT", "start_char": 20, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "SETH GENDALAL MOTILAL PATNI AND OTHERS", "offset_not_found": false}}, {"text": "January 6, 1966", "label": "DATE", "start_char": 60, "end_char": 75, "source": "ner", "metadata": {"in_sentence": "RAMESH AND ANOTHER\n\nSETH GENDALAL MOTILAL PATNI AND\n\nOTHERS January 6, 1966\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYATULLAll, V. RAMASWAMI AND\n\nP. SATYANARAYANA RAJU, JJ.J\n\nConstitution of India, Art."}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 78, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 106, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 139, "end_char": 151, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "P. SATYANARAYANA RAJU, JJ", "label": "JUDGE", "start_char": 157, "end_char": 182, "source": "metadata", "metadata": {"canonical_name": "P. SATYANARAYANA RAJU", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 186, "end_char": 207, "source": "regex", "metadata": {}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 209, "end_char": 217, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 322, "end_char": 330, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 351, "end_char": 359, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 19(1)", "label": "PROVISION", "start_char": 433, "end_char": 441, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s1", "label": "PROVISION", "start_char": 786, "end_char": 788, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 22", "label": "PROVISION", "start_char": 811, "end_char": 816, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 22( 1)", "label": "PROVISION", "start_char": 1254, "end_char": 1263, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 1334, "end_char": 1351, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1794, "end_char": 1802, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2052, "end_char": 2060, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2219, "end_char": 2227, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Arts. 133 and 134", "label": "PROVISION", "start_char": 2484, "end_char": 2501, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "[1966] 1 S.C.R. 190", "label": "CASE_CITATION", "start_char": 2703, "end_char": 2722, "source": "regex", "metadata": {}}, {"text": "ss. 109 and 110", "label": "PROVISION", "start_char": 3365, "end_char": 3380, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 3438, "end_char": 3446, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 133", "label": "PROVISION", "start_char": 3541, "end_char": 3552, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 3948, "end_char": 3956, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Arts. 132 and 133", "label": "PROVISION", "start_char": 4207, "end_char": 4224, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 4362, "end_char": 4370, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 5107, "end_char": 5135, "source": "ner", "metadata": {"in_sentence": "206 H-207 CJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "C. B. Agarwala", "label": "LAWYER", "start_char": 5332, "end_char": 5346, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, B. R. L. Iyengar, G.· L. Sanghi and A. G.\n\nRatnaparkhi, for the appellant."}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 5348, "end_char": 5364, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, B. R. L. Iyengar, G.· L. Sanghi and A. G.\n\nRatnaparkhi, for the appellant."}}, {"text": "G.· L. Sanghi", "label": "LAWYER", "start_char": 5366, "end_char": 5379, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, B. R. L. Iyengar, G.· L. Sanghi and A. G.\n\nRatnaparkhi, for the appellant."}}, {"text": "A. G.\n\nRatnaparkhi", "label": "LAWYER", "start_char": 5384, "end_char": 5402, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, B. R. L. Iyengar, G.· L. Sanghi and A. G.\n\nRatnaparkhi, for the appellant."}}, {"text": "M. S. Gupta", "label": "LAWYER", "start_char": 5424, "end_char": 5435, "source": "ner", "metadata": {"in_sentence": "M. S. Gupta, for respondent No.", "canonical_name": "M. S. Gupta"}}, {"text": "D. R. Prem", "label": "LAWYER", "start_char": 5459, "end_char": 5469, "source": "ner", "metadata": {"in_sentence": "1\n\nD. R. Prem and B. R. G. K. Achar, for respondents Nos."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 5474, "end_char": 5491, "source": "ner", "metadata": {"in_sentence": "1\n\nD. R. Prem and B. R. G. K. Achar, for respondents Nos."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 5570, "end_char": 5582, "source": "ner", "metadata": {"in_sentence": "The judgment of the Court was delivered by\n\nHidayatullah, J. This is an appeal by special leave against an order dated February 1, 1965 of the High Court of Bombay (Nagpur Bench) in Miscellaneous Petition No.", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 5775, "end_char": 5786, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "July 30, 1965", "label": "DATE", "start_char": 6166, "end_char": 6179, "source": "ner", "metadata": {"in_sentence": "395 of 1965 has been filed but by an order of this Court dated July 30, 1965, it has been kept pending sine die with liberty to bring it up for hearing after the disposal of the prc, cnt appeal."}}, {"text": "s. 19( 1)", "label": "PROVISION", "start_char": 6700, "end_char": 6709, "source": "regex", "metadata": {"statute": null}}, {"text": "Gendalal Motilal J.'atni", "label": "RESPONDENT", "start_char": 6909, "end_char": 6933, "source": "ner", "metadata": {"in_sentence": "One such creditor, named by them, is Gendalal Motilal J.'atni who is the first respondent."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 7151, "end_char": 7156, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 7216, "end_char": 7221, "source": "regex", "metadata": {"statute": null}}, {"text": "Patni", "label": "PETITIONER", "start_char": 7270, "end_char": 7275, "source": "ner", "metadata": {"in_sentence": "The Claims Officer overruled the objection of Patni by an order dated November 19, 1951.", "canonical_name": "Patni"}}, {"text": "November 19, 1951", "label": "DATE", "start_char": 7294, "end_char": 7311, "source": "ner", "metadata": {"in_sentence": "The Claims Officer overruled the objection of Patni by an order dated November 19, 1951."}}, {"text": "s. 22", "label": "PROVISION", "start_char": 7630, "end_char": 7635, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh Board of Revenue", "label": "ORG", "start_char": 7754, "end_char": 7785, "source": "ner", "metadata": {"in_sentence": "Patni did not file the statement but instead preferred an appeal against the main order before the fonner Madhya Pradesh Board of Revenue."}}, {"text": "June 15, 1954", "label": "DATE", "start_char": 7816, "end_char": 7829, "source": "ner", "metadata": {"in_sentence": "The Board of Revenue held on June 15, 1954 that the Claims Officer had no •· jurisdiction to determine the character of the debt and only the Civil Court could decide this issue."}}, {"text": "Nagpur High Court", "label": "COURT", "start_char": 8032, "end_char": 8049, "source": "ner", "metadata": {"in_sentence": "In reaching this conclusion the Board followed a decision of the Nagpur High Court rep'1rted\n\nin Ramkrislma v. Board of Revenue(')."}}, {"text": "Patni", "label": "PETITIONER", "start_char": 8249, "end_char": 8254, "source": "ner", "metadata": {"in_sentence": "Patni appealed to the High Court but out of caution filed his statement of claim before the Claims Officer on January 23, 1958.", "canonical_name": "Patni"}}, {"text": "Commissioner, Nagpur Division, Nagpur", "label": "RESPONDENT", "start_char": 8746, "end_char": 8783, "source": "ner", "metadata": {"in_sentence": "Patni appealed to the Commissioner, Nagpur Division, Nagpur (Rev. Appeal No."}}, {"text": "s. 22", "label": "PROVISION", "start_char": 9298, "end_char": 9303, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 9458, "end_char": 9475, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "High Court of Bombay (Nagpur Bench)", "label": "COURT", "start_char": 9503, "end_char": 9538, "source": "ner", "metadata": {"in_sentence": "226 and 227 of the Constitution in the High Court of Bombay (Nagpur Bench) on the ground that the Commissioner had no jurisdiction ."}}, {"text": "September 21, 1964", "label": "DATE", "start_char": 9832, "end_char": 9850, "source": "ner", "metadata": {"in_sentence": "The High Court summarily dismissed the petition by its first order dated September 21, 1964 against which Special Leave Petition (Civil) No."}}, {"text": "February 1, 1965", "label": "DATE", "start_char": 10008, "end_char": 10024, "source": "ner", "metadata": {"in_sentence": "The appellants next applied for a certificate which was refused by order dated February 1, 1965, impugned in the present appeal, and the question involved is : whether the E appellants were entitled to a certificate as of right under Art."}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 10163, "end_char": 10171, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 10233, "end_char": 10241, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 10317, "end_char": 10330, "source": "ner", "metadata": {"in_sentence": "Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters."}}, {"text": "India", "label": "GPE", "start_char": 10534, "end_char": 10539, "source": "ner", "metadata": {"in_sentence": "( 1) An appeal shall lie to the Supreme Court from any judgment, decree or final order .in a civil proceeding of a High Court in the territory of India if the High Court certifies-\n\n(a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or\n\n(b) that the judgment, decree or final order involves directly or indirectly some claim or question 19 Sup CI/66-J.1\n\n202 SUPllEME\n\nCOURT P.EPOllTS\n\n[ 1966] 3 S.C.R.\n\nrespecting property of the like amount or value; or\n\n( c) that the case is a fit one for appeal to the Supreme Court; and, where the judgment, decree or final order appealed from affirms the decision of tho court immediately below in any case other than a case referred to in sub-clause ( c)."}}, {"text": "Parliament", "label": "ORG", "start_char": 10802, "end_char": 10812, "source": "ner", "metadata": {"in_sentence": "( 1) An appeal shall lie to the Supreme Court from any judgment, decree or final order .in a civil proceeding of a High Court in the territory of India if the High Court certifies-\n\n(a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or\n\n(b) that the judgment, decree or final order involves directly or indirectly some claim or question 19 Sup CI/66-J.1\n\n202 SUPllEME\n\nCOURT P.EPOllTS\n\n[ 1966] 3 S.C.R.\n\nrespecting property of the like amount or value; or\n\n( c) that the case is a fit one for appeal to the Supreme Court; and, where the judgment, decree or final order appealed from affirms the decision of tho court immediately below in any case other than a case referred to in sub-clause ( c)."}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 11405, "end_char": 11413, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "M. S. Gupta", "label": "LAWYER", "start_char": 12721, "end_char": 12732, "source": "ner", "metadata": {"in_sentence": "Mr. M. S. Gupta for the answering respondent docs not rightly contest this fact.", "canonical_name": "M. S. Gupta"}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 12825, "end_char": 12833, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 13250, "end_char": 13258, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 13354, "end_char": 13362, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 13511, "end_char": 13519, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 133", "label": "PROVISION", "start_char": 13632, "end_char": 13643, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Arts. 133 and 134", "label": "PROVISION", "start_char": 14976, "end_char": 14993, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Shah", "label": "JUDGE", "start_char": 15230, "end_char": 15234, "source": "ner", "metadata": {"in_sentence": "Shah J, speaking for the majority, first summarises all the provisions in the Constitution bearing upon appeals to this Court -and after analysis, holds that F the words \"civil proceeding\" are used in the widest sense, that in contradistinction to criminal proceedings they cover all proceedings which affect directly civil rights."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 15582, "end_char": 15590, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 15900, "end_char": 15911, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 16025, "end_char": 16033, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Gupta", "label": "OTHER_PERSON", "start_char": 16039, "end_char": 16044, "source": "ner", "metadata": {"in_sentence": "Mr. Gupta's conten- H tion that under that article an appeal can only lie in respect of a judgment or decree or final order passed b the exercise of appel-\n\n(1) A.l."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 16439, "end_char": 16466, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 16894, "end_char": 16902, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "ss. 109 and 110", "label": "PROVISION", "start_char": 16973, "end_char": 16988, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 16992, "end_char": 17019, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 17401, "end_char": 17412, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 133", "label": "PROVISION", "start_char": 17415, "end_char": 17426, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 17988, "end_char": 17996, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Arts. 132, 133", "label": "PROVISION", "start_char": 18578, "end_char": 18592, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 132", "label": "PROVISION", "start_char": 18729, "end_char": 18737, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "RAMESH V. G. M. PATNI", "label": "JUDGE", "start_char": 18985, "end_char": 19006, "source": "ner", "metadata": {"in_sentence": "I I\n\n• ,/\n\n, •\n\nRAMESH V. G. M. PATNI (Hidaya(ullah J.) 205\n\nA of the Constitution."}}, {"text": "Article 132", "label": "PROVISION", "start_char": 19433, "end_char": 19444, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 133", "label": "PROVISION", "start_char": 19711, "end_char": 19722, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 21869, "end_char": 21877, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 21974, "end_char": 21982, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 22441, "end_char": 22449, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 24275, "end_char": 24283, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Feb< ruary 1, 1965", "label": "DATE", "start_char": 25184, "end_char": 25202, "source": "ner", "metadata": {"in_sentence": "The order dated Feb< ruary 1, 1965 is set aside and the case will now go back to the High Court for disposal according to law."}}]}
{"document_id": "1966_3_208_213_EN", "year": 1966, "text": "K. V. SRINIVASA AYYANGAR\n\nP. N. VENKATASUBRAMANIA IYER AND OTHERS\n\nJanuary 6, 1966\n\n[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.)\n\nMadras Agriculturists' Relief Act (4 of 1938), s. 8 Explanarion Ill-Scope of.\n\nIn 1932, the appellant renewed a promissory note executed in 1930 by his brother in favour of N, the father of the respondents, for Rs. l,000. The promissory note was renewed in 19.17, 1940 and 1944 for the principal amount logethcr with interest. rhc last 3 promissory notes were taken in the name of a Bank wh ch \\Vas admittl!dly under the control of N.\n\nJn 1946, at the instance of the appellanr, N paid off the debt due from the appcibnt to the Bank and obtained a prom•ssory note in his O\\\\:n f; tvour for R:-o. 10,600, the amount then due.\n\nAs no repayment was made. N inStti'u'e<l a suit on the original side of the lligh L'ourt which was decided by a judge sitting singly.\n\nApplying Explanation III to s. 8 of the !\\-fadras Agricullurists' Re-lief Act, 1938, he gave a decree only for Rs. 1.350 togeth!!r , .. ith interest at 6.\\% from the date of the Act.\n\nIn appeal therefrom under the Letter. Parent, the High Court held that the respondents \\\\-ere. entitled to a decree for the entire amount of Rs. 10,600 v.-ilh interest 011 6!~(.\n\nBefore thi.s Court, it wa9 contended that. under the Explanation as. amended by Act 24 of 1950, once i! \\l.\"<Lo; found that a document was\n\nin renewal of a previous debt the benefit of s. 8 \\\\'Ou!d be av:1iLthl~ \\\\'<.is E promisor even if the creditor in 1,1, hosc name the deht y.as rcne\\\\:cd was different from the one \\\\ho had originally advanced the Joan and also oven \\vherc the origin; il debtor \\vas different fron1 the one who executed the document under which the debt \\\\las renewed.\n\nHELD : Though the requirement of the Explanation pertaining to the debtor was satisfied in the sense that the same person had been the debtor. the requirement \\\\'Lh respect to !he creditor was not satisfied. The benefit F of the Act would ho available to a debtor if :he rene\\val was in favour of:\n\n(a) the same creditor: or (b) any other person acting in hi' behalf; or\n\n(c) any other person acting in hiS> in'.crcst. Since the Bank has an inde~ pendent exitence, even though the controlling interest herein was with N,\n\n( I\n\n1t v.ould not be corrcc! to ay !ha! there was identity bel\\VCn him and the Bank. Neither was there any material to show that the Bank acted on N's behalf when the appeliant c:itecuted the promissory notes in favour of the G t Bank; and. even if ?he \\\\'Ord'i \"in the inlercst or• mean \"for ihe henefit of' > it cannot be sad that the Bank, in obtain.ing the promissory notes in ,\\ rene\\\\al of thJ original dchl v.as acting in N's interc..\"if.\n\nTherefore, the Explana:ion was not availahlc to the appellant. (212 D-G: 213 A-El /\n\nCIVIL APPELLATF. JURISDICTION : Civil Appeal No. 543 of 1963.\n\nAppeal from the judgment and decree, dated October 10, 1958 of the Madras High Court in O.S. Appeal No. 1 of 1954.\n\n' >. )\n\nSRINIVASA V. VENKATASUBRAMANIA (Mudholkar, !.) 209\n\nA T. V. R. Tatachari, for the appellant.\n\nM. Sundaram, K. Jayaram and R. Thiagarajan, for respondent No. I.\n\nThe Judgment of the Court was delivered by\n\nMudholkar, J.\n\nThis is an appeal from .a judgment of the Madras High Court modifying the decree passed by a single Judge of that High Court in a suit for recovery of money.\n\nAdmittedly the appellant had executed a promissory note at Madras for a sum of Rs. 10,600 in favour of one Narayana Iyer, since deceased, on January 28, 1946 and agreed to pay interest on that amount at 12% p.a.\n\nIt is also admitted , that no repayment was made by the appellant.\n\nNarayana Iyer, therefore, instituted a suit against him for recovery of a sum of Rs. 14,402-5-0, which includes interest upon the sum of Rs. 10,600.\n\nThe appellant contended that the promissory note was only a renewal of a previous promissory note which itself as well as three earlier prnmissory notes were in renewal of the original promissory note for Rs. 1,000 executed in the year 1930.\n\nAccording to the appellant that promissory note was executed by his brother but was renewed by the appellant himself in the year 1932; that this promissory note was renewed on January 11, 1937 by him and that at that time Narayana Iyer had given an additional amount of Rs. 350 to him.\n\nThe amount for which !his promissory note was executed was Rs. 4,000 and it included interest on the first advance up to that date.\n\nNarayana Iyer, however, instead of taking a promissory note in his own name took it in the name of General Bank which is a private limited company which admittedly was under his control.\n\nThe debt was renewed in favour of the General Bank on January 3, 1940 by executing a fresh promissory note for Rs. 5,650 on that date and again on September 13, 1944 when it was renewed by obtaining a promissory note for Rs. 9 ,27 5.\n\nAccording to the respondents Narayana Iyer paid off the dues to the General Bank at the instance of the appellant and obtained a promissory note in his favour for Rs. 10,600.\n\nAs the amount was not paid, Narayana Iyer instituted the suit out of which this appeal arises.\n\nHe, however, died during the pendency of the suit and is now represented by his sons, the respondents.\n\nUpon the aforesaid facts and the further fact that the appellant is an agriculturist he claimed that he was entitled to the benefits of the Madras Agricul-\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n[1966] 3 S.C.R.\n\niurists Relief Act IV of 1938. He claimed that under the provisions of that Act he was entitled to have the debts scaled down.\n\nHis pka was upheld by the learned single Judge of the High C:ourt who held that the respondents after scaling down the interest as provided in the Act were entitled to a um of Rs. 1,350 together with interest thereon at 6t% from March 22, 1938 up to the date of the decree.\n\nIn the appeal preferred by the respondents under the Letters Patent the appeal court held that the respondent> were enritle<l to a decree for the entire amount for which the promissory note was executed, that is, Rs. 10,600 together with interest thereon at 6i% p.a.\n\nIn coming to this conclusion the appeal court placed an interpretation on explanation III to s. 8 of the Act different from that placed by the learned single Judge.\n\nSection 7 of the Act provides that all debts payable by an agriculturist at the commencement of the Act shall be scaled down in accordance with the provisions of Chapter II.\n\nThe Act received assent of the Governor General on March 11, 1938 and was first published in the Official Gazette on March 22, 1938 and must be deemed to have come into force as from the former date.\n\nSection 8 provides for the scaling down of debts incurred before December 1, 1932.\n\nSub-section (I) thereof says that all interest outstanding on the 1st of October, 193 7 against an agriculturist shall be deemed to be discharged and only the principal outstanding on that date shall be deemd to be the amount repayable by the agriculturist debtor.\n\nSub-sections (2), ( 3) and ( 4) of that Act deal with classes of cases in which payments have been made from time to time by the debtor to the creditor.\n\nIt is not necessary to refer to them because even according to the appellant he had not made any repayments before the cxecutic.n of the rromissory note in the suit.\n\nIt is common ground th:tt explanations I, II and IV have no applica1ion to the present case.\n\nThe only explanation which is relevant is explanation III.\n\nThis explanation has been twice amended. The original explanation was as follows :\n\n\"Where a debt has been renewed or included in a fresh document in favour of the same creditor the principal originally advanced by the creditor together with such sums, if anv, as have been subsequently advanced as principal shall alone be treated as the principal sum repayable by the agriculturist under this section.\"\n\n' .,,_ \\\n\nSRINIVASA v. VENKATASUBRAMANIA (Mudho/kar, J.) 211\n\nThe amending Act 23 of 1948 substituted for it the following :\n\n\"Where a debt has been renewed or included in a fresh document executed before or after the commencement of this Act, whether by the same or a different debtor and whether in favour of the same or a different creditor the principal originally advanced together with such sums, if any, as have been subsequently advanced as principal shall alone be treated as the principal sum repayable unaer this section.\" . This was amended by Madras Act 24 of 1950 and now runs\n\nthus :\n\n\"Where a debt has beeu renewed or included in a fresh document executed before or after the commencement of this Act, whether by the same debtor or by his heirs, legal representatives or assigns or by any other person acting on his behalf or in his interest and whether in favour of the same creditor or of any other person acting on his behalf or in his interest, the principal originally advanced together with such items, if any, as have been subsequently advanced as principal shall alone be treated as the principal sum repayable under this section.\"\n\nIt is common ground that it is the explanation which was. amended by Act 24 of 1950 which applies to the case before us.\n\nIt will be seen that under the original explanation the benefit of sub-s. (1) of s. 8 was available only in cases where the debt had been renewed in favour of the same creditor as the one from whom it was originally obtained.\n\nIt is contended on the appellant's behalf that by virtue of the amendment of 1948 the benefit of the provision was available even if the creditor in whose name the debt was renewed was different from the one who had originally\n\ndvanced the loan and also even where the original debtor was different from the one who executed the document under which the debt was renewed.\n\nIt is pointed out that the second amendment was necessitated by reason of certain decisions of the Madras High Court holding that the words \"different creditor\" in Explanation Ill to s. 8 did not include a third party in whose favour the debtor had executed a document renewing an earlier debt.\n\nAccording to learned counsel this interpretation defeated the object which the Legislature had in view in amending Explanation Ill in 1948 and that, therefore, that explanation was amended a second time to make it\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1966) JS.CR.\n\nclear that once it is found that a document was in renewal of a A previous debt the benefit of s. 8 would be available to the prombor whether the person renewing it or the person in whose favour it is renewed is different.\n\nIt is unnecessary for us to consider what the reason for umending Explanation Ill by Act 23 of 1948 was.\n\nAll that we arc B concerned wi1h is the ex;1lanation as amended by Act 24 of 1950.\n\nBy vinue of this explanation the benefit of s. 8 ( 1) would be available in a case where (a) a <lcht h<ts been renewed or included in a fresh document; an<l where that is <lone\n\n(b) (i) by the same debtor, or\n\n(ii) by his heirs, legal representatives or assigns; or\n\n(iii) by any olher person acling on his behalf; or\n\n(iv) by any other person ac1ing in his interest.\n\nSuch a lransaclion will he en1itlcd lo the benefit of the Act if the renewal or frc, h ugrcemctll is in favour of (a) the same creditor; or ( b) of any other person acting in his behalf or ( c) any other person acting in his interest.\n\nIn the instant case though the debtor in the transaction of 1930 was stated to be the appellant's brother, in all subsequent tr:rnsactions it was the appellant who was the debtor It would follow, therefore, that the requirements of the explanation perlaining to the debtor arc satisfied in the sense that the same per>cltl h:\" been the debtor.\n\nThe second requirement of the explanation is with respect to the creditor.\n\nAs already stated, after 1940 ii was n!ll '.; arayana Iver but the G.'neral Bank which was the creditor up to January 28, 1946 on which date the promissory note in suit was executed by the appellant in his favour. The General Bank has an independent existence and even though the controlling interest therein was with Narayana Iyer and his family it would not he correct to say that there is an identity between that bank and Narayana Iyer. Mr. Tatachari, however, contended that it was Narayana Iyer who was the original creditor and that as he had full power of management and control with respect to the General Bank he went on obtaining promissory notes from the appellants. sometimes in his own favour and some times in favour of the Bank.\n\nFor all praclical purposes, therefore, accordin~ to the appelbnt, the creditor has been the same throughout.\n\nWe cannot accept this argument in the ah, ence of any material to show that the Bank a<:ted on his behalf when the appellant executed the rromissory notes, dated January 3, 1940 and Septcrnhcr :JO, 1944 in favour of the Bank.\n\nThe contention\n\n, J 1 '\n\nl ' \". \\\n\nSRIN!VASA V. VENKATASUBRAMANIA (Mudholkar, !.) 213\n\nof Mr. Tatachari then is that the Bank in obtaining those promissory notes in renewal of the original debt was acting in his interest and that, therefore, the explanation was available to the appellant.\n\nIn the High Court it was urged that when the appellant executed the promissory note dated January 28, 1946 Narayana Iyer acted in the interest of the Bank.\n\nThe ground on which the argument advanced before the High Court and tho argument advanced before us is, however, the same.\n\nIt is that the words \"in the interest of\" mean \"for the benefit of\".\n\nEven assuming that that is the meaning to be given to these words the argument of learned counsel cannot be sustained on the facts of this case.\n\nIt has been found as a fact by the appeal court that Narayana Iyer actually paid Rs. 10,600 by cheque in favour of the General Bank Ltd., to the credit of the appellant.\n\nIt has also been found by the High Court that Narayana Iyer paid off the debt due from the appellant to the Bank at the request of the appellant for discharging the appellant's liability upon the promissory note executed by him in favour of the Bank.\n\nThese findings of the High Court have not been seriously challenged before us and in our opinion quite rightly.\n\nIn view of these findings the contention of learned counsel that the payment was made \"in the interest of the creditor\" cannot be sustained. In the circumstances, therefore, we uphold the decree of the appeal court and dismiss the appeal with costs.\n\nAppeal dismissed.", "total_entities": 40, "entities": [{"text": "K. V. SRINIVASA AYYANGAR", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "K.V. SRINIVASA AYYANGAR", "offset_not_found": false}}, {"text": "P. N. VENKATASUBRAMANIA IYER AND OTHERS", "label": "RESPONDENT", "start_char": 26, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "P. N. VENKATASUBRAMANIA IYER AND OTHERS", "offset_not_found": false}}, {"text": "January 6, 1966", "label": "DATE", "start_char": 67, "end_char": 82, "source": "ner", "metadata": {"in_sentence": "K. V. SRINIVASA AYYANGAR\n\nP. N. VENKATASUBRAMANIA IYER AND OTHERS\n\nJanuary 6, 1966\n\n[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.)"}}, {"text": "A. K. SARKAR, J.", "label": "JUDGE", "start_char": 85, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 102, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 119, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "s. 8", "label": "PROVISION", "start_char": 188, "end_char": 192, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 930, "end_char": 934, "source": "regex", "metadata": {"statute": null}}, {"text": "Re-lief Act, 1938", "label": "STATUTE", "start_char": 968, "end_char": 985, "source": "regex", "metadata": {}}, {"text": "s. 8", "label": "PROVISION", "start_char": 1450, "end_char": 1454, "source": "regex", "metadata": {"linked_statute_text": "Re-lief Act, 1938", "statute": "Re-lief Act, 1938"}}, {"text": "Madras High Court", "label": "COURT", "start_char": 2944, "end_char": 2961, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and decree, dated October 10, 1958 of the Madras High Court in O.S. Appeal No."}}, {"text": "SRINIVASA", "label": "PETITIONER", "start_char": 3001, "end_char": 3010, "source": "ner", "metadata": {"in_sentence": "SRINIVASA V. VENKATASUBRAMANIA (Mudholkar, !.)"}}, {"text": "VENKATASUBRAMANIA", "label": "RESPONDENT", "start_char": 3014, "end_char": 3031, "source": "ner", "metadata": {"in_sentence": "SRINIVASA V. VENKATASUBRAMANIA (Mudholkar, !.)"}}, {"text": "T. V. R. Tatachari", "label": "LAWYER", "start_char": 3055, "end_char": 3073, "source": "ner", "metadata": {"in_sentence": "209\n\nA T. V. R. Tatachari, for the appellant."}}, {"text": "M. Sundaram", "label": "LAWYER", "start_char": 3095, "end_char": 3106, "source": "ner", "metadata": {"in_sentence": "M. Sundaram, K. Jayaram and R. Thiagarajan, for respondent No."}}, {"text": "K. Jayaram", "label": "LAWYER", "start_char": 3108, "end_char": 3118, "source": "ner", "metadata": {"in_sentence": "M. Sundaram, K. Jayaram and R. Thiagarajan, for respondent No."}}, {"text": "R. Thiagarajan", "label": "LAWYER", "start_char": 3123, "end_char": 3137, "source": "ner", "metadata": {"in_sentence": "M. Sundaram, K. Jayaram and R. Thiagarajan, for respondent No."}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 3206, "end_char": 3215, "source": "ner", "metadata": {"in_sentence": "I.\n\nThe Judgment of the Court was delivered by\n\nMudholkar, J.\n\nThis is an appeal from .a judgment of the Madras High Court modifying the decree passed by a single Judge of that High Court in a suit for recovery of money.", "canonical_name": "R. MUDHOLKAR"}}, {"text": "Madras", "label": "GPE", "start_char": 3439, "end_char": 3445, "source": "ner", "metadata": {"in_sentence": "Admittedly the appellant had executed a promissory note at Madras for a sum of Rs."}}, {"text": "Narayana Iyer", "label": "RESPONDENT", "start_char": 3487, "end_char": 3500, "source": "ner", "metadata": {"in_sentence": "10,600 in favour of one Narayana Iyer, since deceased, on January 28, 1946 and agreed to pay interest on that amount at 12% p.a.", "canonical_name": "Narayana Iyer"}}, {"text": "January 11, 1937", "label": "DATE", "start_char": 4230, "end_char": 4246, "source": "ner", "metadata": {"in_sentence": "According to the appellant that promissory note was executed by his brother but was renewed by the appellant himself in the year 1932; that this promissory note was renewed on January 11, 1937 by him and that at that time Narayana Iyer had given an additional amount of Rs."}}, {"text": "Narayana Iyer", "label": "RESPONDENT", "start_char": 4474, "end_char": 4487, "source": "ner", "metadata": {"in_sentence": "Narayana Iyer, however, instead of taking a promissory note in his own name took it in the name of General Bank which is a private limited company which admittedly was under his control.", "canonical_name": "Narayana Iyer"}}, {"text": "January 3, 1940", "label": "DATE", "start_char": 4716, "end_char": 4731, "source": "ner", "metadata": {"in_sentence": "The debt was renewed in favour of the General Bank on January 3, 1940 by executing a fresh promissory note for Rs."}}, {"text": "September 13, 1944", "label": "DATE", "start_char": 4809, "end_char": 4827, "source": "ner", "metadata": {"in_sentence": "5,650 on that date and again on September 13, 1944 when it was renewed by obtaining a promissory note for Rs."}}, {"text": "Madras Agricul-", "label": "ORG", "start_char": 5413, "end_char": 5428, "source": "ner", "metadata": {"in_sentence": "Upon the aforesaid facts and the further fact that the appellant is an agriculturist he claimed that he was entitled to the benefits of the Madras Agricul-\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n[1966] 3 S.C.R.\n\niurists Relief Act IV of 1938."}}, {"text": "Relief Act IV of 1938", "label": "STATUTE", "start_char": 5480, "end_char": 5501, "source": "regex", "metadata": {}}, {"text": "March 22, 1938", "label": "DATE", "start_char": 5829, "end_char": 5843, "source": "ner", "metadata": {"in_sentence": "1,350 together with interest thereon at 6t% from March 22, 1938 up to the date of the decree."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 6236, "end_char": 6240, "source": "regex", "metadata": {"linked_statute_text": "Relief Act IV of 1938", "statute": "Relief Act IV of 1938"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 6309, "end_char": 6318, "source": "regex", "metadata": {"linked_statute_text": "Relief Act IV of 1938", "statute": "Relief Act IV of 1938"}}, {"text": "March 11, 1938", "label": "DATE", "start_char": 6535, "end_char": 6549, "source": "ner", "metadata": {"in_sentence": "The Act received assent of the Governor General on March 11, 1938 and was first published in the Official Gazette on March 22, 1938 and must be deemed to have come into force as from the former date."}}, {"text": "Section 8", "label": "PROVISION", "start_char": 6685, "end_char": 6694, "source": "regex", "metadata": {"statute": null}}, {"text": "December 1, 1932", "label": "DATE", "start_char": 6750, "end_char": 6766, "source": "ner", "metadata": {"in_sentence": "Section 8 provides for the scaling down of debts incurred before December 1, 1932."}}, {"text": "1st of October, 193", "label": "DATE", "start_char": 6835, "end_char": 6854, "source": "ner", "metadata": {"in_sentence": "Sub-section (I) thereof says that all interest outstanding on the 1st of October, 193 7 against an agriculturist shall be deemed to be discharged and only the principal outstanding on that date shall be deemd to be the amount repayable by the agriculturist debtor."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 9276, "end_char": 9280, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 9978, "end_char": 9982, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 10441, "end_char": 10445, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 10804, "end_char": 10808, "source": "regex", "metadata": {"statute": null}}, {"text": "G.'neral Bank", "label": "ORG", "start_char": 11853, "end_char": 11866, "source": "ner", "metadata": {"in_sentence": "arayana Iver but the G.'neral Bank which was the creditor up to January 28, 1946 on which date the promissory note in suit was executed by the appellant in his favour."}}, {"text": "Tatachari", "label": "OTHER_PERSON", "start_char": 12231, "end_char": 12240, "source": "ner", "metadata": {"in_sentence": "Mr. Tatachari, however, contended that it was Narayana Iyer who was the original creditor and that as he had full power of management and control with respect to the General Bank he went on obtaining promissory notes from the appellants."}}, {"text": "General Bank Ltd.", "label": "ORG", "start_char": 13776, "end_char": 13793, "source": "ner", "metadata": {"in_sentence": "10,600 by cheque in favour of the General Bank Ltd., to the credit of the appellant."}}]}
{"document_id": "1966_3_214_218_EN", "year": 1966, "text": "RAM GOPAL REDDY v.\n\nADDITIONAL ClJ~'TODIAN EVACUEE PROPERTY,\n\nHYDERABAD\n\nJanuary 6, 1966\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,\n\nM. HIDAYATULLAH, V. RAMASWAMI, AND P. SATYANARAYANA Ruu, JJ.]\n\nAdministration of Evacuee Propmi Act (31 of 1950) s. 46, and Transfer of Propeiy Act (4 of 18.~2) ,. ;.1 A- Lund purchused in l94f>-- Vendor declared evacuee in 1949 c~1d lt1nd chc/c.red evacuee property- C suit b1 purchaser for declara:ion oj owntisl11p n:h~.-her lies.\n\nThe appellant purchased certilin land from one A in 1946.\n\nAllbough the land was valued at more lhan R-,. 100 no reghtcred deed of sale was\n\ncxecued. In 1949, A was de\"; ared an evacuee and the appellant wa~ given notice by the Deputy Custodian of Evacuee Property to sltow cause why the land should not be declared evacuee property.\n\nNo appearance was put ; n by the appellant in answer to the notice and the land was declared D evacuee property.\n\nThe appellant represented to the departmental authorities that he had become ,,., vncr of the kind before the Evacuee Propcny law came into force. rhe Cu::.1odian did not accept the plea and obscrv~ ed that if the appellant was aggrieved by the dc..-cision he could obtain a declaration of his rights from a compztent court.\n\nThe appellant ther.:· fore filed a suit which was con1ested by the de'!1artment on the ground that s. 46 of the Administration of Evacuee Property Act was a bar. The subordinate Judge held that the court had jurisdiction because of s. 53A E of Transfer of Properry Act.\n\nIn appeal by the Custodian the High Court disagreed with the Subo, dinate Judge and reversed his decision.\n\nThe appellant then came to this Court by special leave.\n\nHELD : The ,.chcme of the Evacuee Property Act clearly IS that when the property admittedly belongs to the evacuee any person claim:ng the property or any interest or ri!_ht trein has, on receip: of a notice under s. 7(1), to appear before the authorities cnti1led to deal w:th the maltcr •. under the Act.\n\nAny person aggrieved by an order of such an au1hority made under s. 7 has the right to appeal under s. 24 arul if necessary to go in revision under s. 27.\n\nThe Act thus provides a complete machinery for a person interested in any properly to put forward his claims before the competent authorities.\n\nHaving provided this machinery the Act by s. 46 bars the jurisdiction of c'vil ; ind revenue coun-; to entertain or adjud:cate upon any question whether any property or any right or interest in any property is or is not evacuee property.\n\nAny transfeec from an evacuee G claiming the property or any right or interct therein has to avail of the remedies under the Act and cannot go to a civil court. The fa<:t that in the present C..!SC the Custodk1n in his order said that the. appellant could go to a competent court couht not confer jurisdiction on 1he Court.\n\nNor could it be said on the facts found that the appellant had become the owner of the proper:y before 1947, for, admittedly the property was worth more than R~. 100 and \\\\'ithout a registered sale deed it \\\\as not II poasible for the title to paSi.\n\nIt may be that ':! A tried to get back the property s. 53-A of the Transfer of Property Act would come to the aid of the appellant in de-\n\n' •\n\n1--,. \\\n\nRAM GOPAL v. CUSTODIAN (Wanchoo, !.) 215\n\nfence But the present suit had been filed to establish tho right of the appeliant as owner of the property and in such a suit the appellant could not take the benefit of s. 53-A. [217 B-218 BJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 885 of 1963.\n\nAppeal from the judgment and decree, dated April 8, 1960 of the Andhra Pradesh High Court in Appeal No. 21/1of1956.\n\nT. V. R. Tatacharl, for the appellant.\n\nN. S. Bindra and R. N. Sachthey, for the respondent.\n\nThe Judgment of the Court was delivered by c Wanchoo, J.\n\nThe only question raised in this appeal on a\n\ncertificate granted by the Andhra Pradesh High Court is whether the suit brought by the appellant is barred under s. 46 of the Administration of Evacuee Property Act, No. 31 of 1950, (hereinafter referred to as the Act).\n\nThe facts are not in dispute and may be briefly narrated.\n\nOn November 15, 1946, the appellant claimed to have purchased certain patta lands from one Abdul Aziz Khan and paid him Rs. 6,127 /8/- in Osmania Sicca. The appellant got possession of the land and thereafter in June 1949 Abdul Aziz Khan applied in the Tahsil office for the transfer of the patta in the name of the appellant. Before, however, any transfer was made, Abdul Aziz Khan seemed to have migrated to Pakistan.\n\nConsequently, the Deputy Custodian took steps to declare Abdul Aziz Khan an evacuee.\n\nIn that connection the appellant received notice from the Deputy Custodian in December 1950 under s. 7 of the Act asking him to sl.iow cause why the land should not be declared evacuee property. Though the appellant's case was that he engaged a counsel to appear on his behalf before the Deputy Custodian, no one seems to have appeared on his behalf, and in consequence, the Deputy Custodian declared the property to be evacuee property.\n\nThereafter the appellant was given a notice requiring him to surrender possession. of the land to the Tahsildar.\n\nThe appellant then made representation before the Deputy Custodian that he had purchased the property from Abdul Aziz Khan in 1946 and was the owner thereof from before the Evacuee Property Law came into force.\n\nThe Deputy Custodian called upon him to produce evidence and thereafter recommended to the Custodian that the property might be declared not to be H evacuee property.\n\nThe Custodian did not accept this recommendation on the ground that there was no registered sale deed duly executed by Abdul Aziz Khan in favour of the appellant and\n\nSUPREME COURT\n\nREPORTS\n\n(1966) 3 S.C.R.\n\nno transfer of property could therefore be said to have taken place in 1946, and ordered that the declaration of the property as evacuee property should stand and further said that if the appellant was aggrieved by this decision he could obtain a declaration of his rights from a competent court.\n\nIn consequence, the appellant filed the suit out of which the present appeal has arisen in the court of the Subordinate Judge, Nizamabad and prayed that a declaration be made that he was the owner of the property and in possession thereof and that the Custodian be ordered to execute and register a sale deed thereof in his favour.\n\nThe suit was resisted by the Custodian and the main contention raised on his behalf was that the suit was barred under s. 46 of the Act.\n\nThe Subordinate Judge however held that the appellant was entitled to the benefit of s. 53-A of the Transfer of Property Act (No. 4 of 1882) and that the civil court had jurisdiction inasmuch as the sale had taken place before 1947.\n\nThe Custodian then went in appeal to the High Court, and the only question raised there was that the suit was barred under s. 46 of the Act.\n\nThe High Court reversed the decision of the Subordinate Judge and held that the appellant had been given notice under s. 7 of the Act in December 1950 and did not appear before the Deputy Custodian with the result that the property was declared as evacuee property. The High Court further held that after this declaration the appellant's remedy was to proceed by way of appeal or revision under the Act and that a suit was barred in view of s. 46 thereof.\n\nThe appellant's contention that as he was a third party he was entitled to maintain the suit was negatived by the High Court.\n\nIn consequence the High Court dismissed the suit but directed the parties to bear their own costs.\n\nThe appellant then obtained a certificate from the High Court to appeal to this Court, and that is how the matter has come up before us.\n\nWe are of opinion that there is no force in this appeal.\n\nIt is unnecessary to consider the cases cited at the bar on behalf of the appellant for whatever may be the position of law where the title of the evacuee himself is in dispute, as to which we express no opinion, there can be no doubt that where the property admittedly belonged to the evacuee and the person filing the suit claims to be a transferee from the evacuee, the suit would certainly be barred in view of s. 46 of the Act.\n\nSection 46 inter a/ia lays down that \"save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction to entertain or adjudicate upon any question whether any property or any right to or\n\n• •\n\n' ,\\ , )\n\nl j\n\n) ....\n\n~ \\\n\nRAM C.vPAL v. CUSTODIAN (Wanchoo, l.) 217\n\nA interest in any property is or is not evacuee property.\" It is admitted that the appellant had received notice from the Deputy Custodian under s. 7 ( 1) of thC' Act but had neglected to appear before him and it was in those circumstances that the Deputy Custodian declared the property to be evacuee property.\n\nThat\n\norder of the Deputy Custodian could be taken in appeal under s. 24 by the appellant to the authorities provided under the Act, and if necessary the appellant could also go in revision to the Custodian General under s. 27.\n\nThe scheme of the Act clearly is that where the property admittedly belongs to the evacuee any person claiming the property or any interest or right therein has on receipt of a notice under s. 7 ( 1) to appear before the authorities entitled to deal with the matter under the Act.\n\nAny person aggrieved by an order of such an authority made under s. 7 has the right to appeal under s. 24 and if necessary to go in revision under s. 27. 'f]le Act thus provides a complete machinery for a person interested in any property to put forward his claims before the authorities competent to deal with the question and to go in appeal and in revision if the person interested feels aggrieved .\n\nHaving provided this complete machinery for adjudication of all claims with respect to evacuee property, the Act, by s. 46, bars the jurisdiction of civil or revenue courts to entertain or adjudicate upon any question whether any property or any right to or interest E in any property is or is not evacuee property. Where therefore\n\nthe property or any right to or interest in any property undoubtedly belonged to the evacuee and any transferee from the evacuee claims the property or any right to or interest therein he has to avail of the remedies provided under the Act. If he fails to do\n\nF so he cannot file a suit in the civil or revenue court to have the question whether any property or any right to or any interest therein is or is not evacuee property decided in view of the clear provision of s. 46 (a) of the Act.\n\nThe fact that the Custodian in his order said that the appellant could go and establish his right in a competent court is of no assistance to the appellant, for if the law bars the jurisdiction of civil and revenue courts the G Custodian's observation that the party before him could go to a competent court to establish his right will not confer jurisdiction on a civil or revenue court.\n\nNor can it be said on the facts found in the present case that the appellant had become tho owner of the property before 194 7, for, admittedly the property was worth H more than Rs. 100 and it is not disputed that a registered sale deed was necessary to pass title from Abdul Aziz Khan to the appellant. No registered sale deed was executed in this case and therefore the property did not pass from Abdul Aziz Khan to", "total_entities": 50, "entities": [{"text": "RAM GOPAL REDDY", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "RAM GOPAL REDDY", "offset_not_found": false}}, {"text": "ADDITIONAL ClJ~'TODIAN EVACUEE PROPERTY,\n\nHYDERABAD", "label": "RESPONDENT", "start_char": 20, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "ADDITIONAL CUSTODIAN EVACUEE PROPERTY, HYDERABAD", "offset_not_found": false}}, {"text": "January 6, 1966", "label": "DATE", "start_char": 73, "end_char": 88, "source": "ner", "metadata": {"in_sentence": "RAM GOPAL REDDY v.\n\nADDITIONAL ClJ~'TODIAN EVACUEE PROPERTY,\n\nHYDERABAD\n\nJanuary 6, 1966\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,\n\nM. HIDAYATULLAH, V. RAMASWAMI, AND P. SATYANARAYANA Ruu, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 91, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 119, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 135, "end_char": 150, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 152, "end_char": 164, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Administration of Evacuee Propmi Act", "label": "STATUTE", "start_char": 198, "end_char": 234, "source": "regex", "metadata": {}}, {"text": "s. 46", "label": "PROVISION", "start_char": 248, "end_char": 253, "source": "regex", "metadata": {"linked_statute_text": "Administration of Evacuee Propmi Act", "statute": "Administration of Evacuee Propmi Act"}}, {"text": "Transfer of Propeiy Act", "label": "STATUTE", "start_char": 259, "end_char": 282, "source": "regex", "metadata": {}}, {"text": "s. 46", "label": "PROVISION", "start_char": 1344, "end_char": 1349, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 53A", "label": "PROVISION", "start_char": 1477, "end_char": 1483, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Properry Act", "label": "STATUTE", "start_char": 1489, "end_char": 1513, "source": "regex", "metadata": {}}, {"text": "s. 7(1)", "label": "PROVISION", "start_char": 1895, "end_char": 1902, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Properry Act", "statute": "Transfer of Properry Act"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 2054, "end_char": 2058, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Properry Act", "statute": "Transfer of Properry Act"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 2089, "end_char": 2094, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Properry Act", "statute": "Transfer of Properry Act"}}, {"text": "s. 27", "label": "PROVISION", "start_char": 2137, "end_char": 2142, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Properry Act", "statute": "Transfer of Properry Act"}}, {"text": "s. 46", "label": "PROVISION", "start_char": 2331, "end_char": 2336, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Properry Act", "statute": "Transfer of Properry Act"}}, {"text": "s. 53", "label": "PROVISION", "start_char": 3156, "end_char": 3161, "source": "regex", "metadata": {"linked_statute_text": "Any transfeec from an evacuee G claiming the property or any right or interct therein has to avail of the remedies under the Act", "statute": "Any transfeec from an evacuee G claiming the property or any right or interct therein has to avail of the remedies under the Act"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 3171, "end_char": 3195, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 53", "label": "PROVISION", "start_char": 3469, "end_char": 3474, "source": "regex", "metadata": {"linked_statute_text": "Any transfeec from an evacuee G claiming the property or any right or interct therein has to avail of the remedies under the Act", "statute": "Any transfeec from an evacuee G claiming the property or any right or interct therein has to avail of the remedies under the Act"}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 3618, "end_char": 3643, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and decree, dated April 8, 1960 of the Andhra Pradesh High Court in Appeal No."}}, {"text": "T. V. R. Tatacharl", "label": "OTHER_PERSON", "start_char": 3671, "end_char": 3689, "source": "ner", "metadata": {"in_sentence": "T. V. R. Tatacharl, for the appellant."}}, {"text": "N. S. Bindra", "label": "OTHER_PERSON", "start_char": 3711, "end_char": 3723, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "OTHER_PERSON", "start_char": 3728, "end_char": 3742, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra and R. N. Sachthey, for the respondent."}}, {"text": "c Wanchoo", "label": "JUDGE", "start_char": 3808, "end_char": 3817, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by c Wanchoo, J.\n\nThe only question raised in this appeal on a\n\ncertificate granted by the Andhra Pradesh High Court is whether the suit brought by the appellant is barred under s. 46 of the Administration of Evacuee Property Act, No."}}, {"text": "s. 46", "label": "PROVISION", "start_char": 3983, "end_char": 3988, "source": "regex", "metadata": {"statute": null}}, {"text": "November 15, 1946", "label": "DATE", "start_char": 4153, "end_char": 4170, "source": "ner", "metadata": {"in_sentence": "On November 15, 1946, the appellant claimed to have purchased certain patta lands from one Abdul Aziz Khan and paid him Rs."}}, {"text": "Abdul Aziz Khan", "label": "OTHER_PERSON", "start_char": 4241, "end_char": 4256, "source": "ner", "metadata": {"in_sentence": "On November 15, 1946, the appellant claimed to have purchased certain patta lands from one Abdul Aziz Khan and paid him Rs."}}, {"text": "Osmania Sicca", "label": "GPE", "start_char": 4288, "end_char": 4301, "source": "ner", "metadata": {"in_sentence": "6,127 /8/- in Osmania Sicca."}}, {"text": "Pakistan", "label": "GPE", "start_char": 4560, "end_char": 4568, "source": "ner", "metadata": {"in_sentence": "Before, however, any transfer was made, Abdul Aziz Khan seemed to have migrated to Pakistan."}}, {"text": "s. 7", "label": "PROVISION", "start_char": 4755, "end_char": 4759, "source": "regex", "metadata": {"statute": null}}, {"text": "Subordinate Judge, Nizamabad", "label": "COURT", "start_char": 6204, "end_char": 6232, "source": "ner", "metadata": {"in_sentence": "In consequence, the appellant filed the suit out of which the present appeal has arisen in the court of the Subordinate Judge, Nizamabad and prayed that a declaration be made that he was the owner of the property and in possession thereof and that the Custodian be ordered to execute and register a sale deed thereof in his favour."}}, {"text": "s. 46", "label": "PROVISION", "start_char": 6548, "end_char": 6553, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 53", "label": "PROVISION", "start_char": 6652, "end_char": 6657, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 6667, "end_char": 6691, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 46", "label": "PROVISION", "start_char": 6924, "end_char": 6929, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 7061, "end_char": 7065, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 46", "label": "PROVISION", "start_char": 7384, "end_char": 7389, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 46", "label": "PROVISION", "start_char": 8238, "end_char": 8243, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 46", "label": "PROVISION", "start_char": 8257, "end_char": 8267, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 8702, "end_char": 8706, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 8937, "end_char": 8942, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27", "label": "PROVISION", "start_char": 9091, "end_char": 9096, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 9289, "end_char": 9293, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 9446, "end_char": 9450, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 9481, "end_char": 9486, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27", "label": "PROVISION", "start_char": 9528, "end_char": 9533, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 46", "label": "PROVISION", "start_char": 9902, "end_char": 9907, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 46", "label": "PROVISION", "start_char": 10589, "end_char": 10594, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_219_223_EN", "year": 1966, "text": "220 SUPREME COURT RBPOllTS\n\n[1966] 3 S.C.R.\n\nAppeal from the judgment and order, dated July 4, 1962 of A the Bombay High Court in IJicome-tax Reference No. 46 of 1960.\n\nA. V. Viswanatha Sastri, N. D. Karkhanis, R.H. Dhebar and R. N. Saclzthey, for the appellant.\n\nBishan Narain, B. R. L. Iyengar, S. K. Mehta and K. L.\n\nB Mehta, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nShah, J. In the account year ending November 6, 1953 Murlidhar Jhawar, Pannalal Lahoti and Govindbai carried on business in groundnut, cotton and cotton-seed.\n\nIn the year C of assessment 1954-55 the Income-tax Officer, Nanded, brought\n\n10 tax a third share in Rs. 51,280 computed as profits from the business in the hands of each of the three parties, and thereafter he called upon Murlidhar to submit a return of the \"income of the joint venture\" on the footing that the parties thereto con- D stiluled an unregistered firm.\n\nMurlidhar complied with the requisition and submitted in November 1957 a return, 1 but later applied 10 withdraw it by application dated December 18, 1957.\n\nThe Income-tax Officer rejected the application for withdrawal of return and completed the assessment of the three parties to the join I venture under s. 23 (3) of the Income-tax Act, t 922 in E !he status of an unregistered firm and computed the income of tl1e join! venture at Rs. 80,925. In appeal to the Appellate Assistant Commissioner the order passed by the Income-tax Officer was confirmed.\n\nIn second appeal, the Income-tax Appellate Tribunal set aside the order of the Appellate Assistant Commissioner. The Tribunal held that the Income-tax Officer had the option to F assess the individual parties to the joint venture, and he having exercised that option it was not open to him there!tfter to reassess the same income colleclively in the hands of the three parties to the joint venture in the status of an unregistered firm.\n\nBui on a concession made by counsel for the three parties, the Tribunal directed that the assessment be \"rectified so as to restore the status G quo ante.\"\n\nThe Tribunal submiued a statement of the case and referred 1he following question to the High Court of Judicature at Bombay:\n\n\"Whether on the facts and in the circumstances of the case the assessment of the unregistered firm was proper and legal, the two partners of this partnefship\n\n' •\n\n\" ).\n\nC. I. T. V. M. J.P. FACTORY (Shah,],) 221\n\nhaving been assessed in respect of their shares of income from this partnership business ? \"\n\nThe High Court recorded an answer in the negative. With certificate granted by the High Court, this appeal has been preferred.\n\nUnder s. 3 of the Indian Income-tax Act, income-tax is charged in respect of the total income of the previous year of every individual, Hindu undivided family, company and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually.\n\nThis Court in Commissioner of Income-tax, U.P. v.\n\nKanpur Coal Syndicate(') observed at p. 228 :\n\n\"The section ( s. 3) expressly treats an association of persons and the individual members of an association as two distinct and different assessable entities. On the terms of the section the tax can be levied on either of the said two entities according to the provisions of the Act.\" The same principle would apply to the cases of assessment of partners individually of an unregistered firm.\n\nThe partners may be assessed individually or they may be assessed collectively in the status of an unregistered firm : the Income-tax Officer cannot E however seek to assess the one income twice--once in the hands of the partners and again in the hands of the unregistered firm.\n\nMr. Viswanatha Sastri for the Department contends that the Income-tax Officer making the first assessment of the three parties to the joint venture was not informed that the three parties con- F stituted an unregistered firm and therefore the Income-tax Officer was in law competent to assess the entity which was in truth liable to be assessed to tax, and in making the earlier order of assessment he cannot be deemed to have exercised an option which precluded him from assessing the income of the three parties as an unregistered firm.\n\nIt is true as pointed out by this Court in a G recent judgment: Income-tax Officer, A-Ward, Lucknow v.\n\nBachulal Kapoor( 2 ) : that in dealiug with a claim made by the Income-tax Officer to assess income into the hand~ of a Hindu undivided family, after assessing it in the hands of the members on the footing that the family was severed, the \"exercise of the option to do one or other of the two alternatives open to an officer H assumes knowledge on his part of the existence of two alternatives\". But on the materials before the Court we are unable\n\n(I) '3 I.T.R. 225 : [1964] 8 S.C.R 85.\n\n\n222 SUPRl!ME COURT REPORTS\n\n\nto accept the plea that the Income-tax Officer wlis not in posses sion of infonnation relying on which, if he desired, he could have assessed the three parties collectively as an unregistered firm.\n\nThere is no warrant for the assumption which counsel for the Department asks us to make, that information about the true state of affairs was not with the Income-tax Officer when. the first assessment was made by him.\n\nThe transactions in various commodities were carried on by Pannalal and Govindbai who were partners of Messrs.\n\nPurna Ginning & Pressing Factory and by Murlidhar. The Income-iax Officer had assessed the income of the three parties separately and added to the individual income of each party his or her share in the profits of the joint venture.\n\nThe Income-tax Officer had information that the three parties, two of whom were members of a registered trading firm had effected transactions in groundnut, couon and cotton-seed.\n\nApparently returns in respect of these trading transactions were separately made and a third share was included in the individual assessment of each of the three parties.\n\nApart from an association of individuals or a firm, the Income-tax Act does not recognize a collection of individuals as an entity capable of being assessed to tax.\n\nThe three patties were not a registered fim1, and they could be assessed to tax collectively as an association of individuals or as an unregistered firm if the relation between them was of partners.\n\nWhen the Income-tax Officer assessed the three parries separately he unquestionably exercised an option knowing that they had entered into a trading transaction in which they were jointly interested.\n\nThe depart mental authorities have not chosen to place before the Court the returns made by the three parties, and even the orders of assessment individually made agaiJist the three parties by the Income; tax Officer are not before this Court.\n\nOnly the final order of the Income-tax Officer which directs : \"Add : Joint venture income\n\nwith Messrs. Puma Ginning and Pressing Factory taken pmvi sionally subject to rectification after the assessment of the joint venture\" is incorporated in the order of the Appellate Assistant (!,) Commissioner.\n\nIt is common ground that the assessment made by the IncometaK Officer was not a \"provisional assessment\" within the meaning of s. 23B.\n\nIt would be reasonable to hold that the income of the three parties was assessed under s. 23 ( 3) of the Income-tax Act, for the income was earned in commercial transactions in different commodities.\n\nThe Income-tax Officer in assessing the income of the joint venture could not have proceeded\n\n• \" ;\n\nr • ,,\n\n~ '\n\n• •\n\nJ • '\n\n• '\n\nC. I. T. v. M J. P. FACTOllY (Shah, }.) 223\n\nwithout scrutinizing the accounts and other relevant documentary evidence and without determining the shares of the three parties to the joint venture. In determining the shares of the three parties, he had also to determine the contractual relation which gave rise to the right to a share in the profit.\n\nAgain the order of the Income-tax Officer clearly indicates that he was cognizant of the fact that the income of he joint venture was taxable collectively, but he thought that he could in law in the first instance make an \"assessment provisionally\" of the three parties separately and then rectify the assessments later. In so holding the Incometax Officer may have committed an error of law, but he does not appear to have laboured under an ignorance of facts. A survey of the contentions raised before the departmental authorities, the Tribunal and the High Court makes that inference irresistible. The Income-tax Officer who made the assessment under challenge did not state that when the first assessment was made, the facts which had a bearing on the true relationship between the three parties were not placed, and it was not even argued before the Appellate Assistant Commissioner and the Tribunal that those facts were not placed before the Income-tax Officer. The Tribunal held, relying upon 1. C. Thakkar v. Commissioner of Income-tax(') and }oti Prasad Agarwal & Others v. Income-tax Officer, B-Ward Mathura(2), that once the option is exercised for assessing the individual partner and including his share of profits in the firm in his assessment, it is not open to the Department to assess the same income as income of the unregistered firm.\n\nThe appeal therefore fails and is dismissed with costs.\n\n(I) \"J:1 I.T.R. 658.\n\n(2) 37 I.T.R. 107.\n\nAppeal dismissed.", "total_entities": 30, "entities": [{"text": "A. V. Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 169, "end_char": 192, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, N. D. Karkhanis, R.H. Dhebar and R. N. Saclzthey, for the appellant."}}, {"text": "N. D. Karkhanis", "label": "OTHER_PERSON", "start_char": 194, "end_char": 209, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, N. D. Karkhanis, R.H. Dhebar and R. N. Saclzthey, for the appellant."}}, {"text": "R.H. Dhebar", "label": "LAWYER", "start_char": 211, "end_char": 222, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, N. D. Karkhanis, R.H. Dhebar and R. N. Saclzthey, for the appellant."}}, {"text": "R. N. Saclzthey", "label": "LAWYER", "start_char": 227, "end_char": 242, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, N. D. Karkhanis, R.H. Dhebar and R. N. Saclzthey, for the appellant."}}, {"text": "Bishan Narain", "label": "LAWYER", "start_char": 264, "end_char": 277, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, B. R. L. Iyengar, S. K. Mehta and K. L.\n\nB Mehta, for the respondent."}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 279, "end_char": 295, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, B. R. L. Iyengar, S. K. Mehta and K. L.\n\nB Mehta, for the respondent."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 297, "end_char": 308, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, B. R. L. Iyengar, S. K. Mehta and K. L.\n\nB Mehta, for the respondent."}}, {"text": "K. L.\n\nB Mehta", "label": "LAWYER", "start_char": 313, "end_char": 327, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, B. R. L. Iyengar, S. K. Mehta and K. L.\n\nB Mehta, for the respondent."}}, {"text": "Shah, J.", "label": "JUDGE", "start_char": 394, "end_char": 402, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Murlidhar Jhawar", "label": "OTHER_PERSON", "start_char": 447, "end_char": 463, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. In the account year ending November 6, 1953 Murlidhar Jhawar, Pannalal Lahoti and Govindbai carried on business in groundnut, cotton and cotton-seed.", "canonical_name": "Murlidhar Jhawar"}}, {"text": "Pannalal Lahoti", "label": "OTHER_PERSON", "start_char": 465, "end_char": 480, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. In the account year ending November 6, 1953 Murlidhar Jhawar, Pannalal Lahoti and Govindbai carried on business in groundnut, cotton and cotton-seed.", "canonical_name": "Pannalal Lahoti"}}, {"text": "Govindbai", "label": "OTHER_PERSON", "start_char": 485, "end_char": 494, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. In the account year ending November 6, 1953 Murlidhar Jhawar, Pannalal Lahoti and Govindbai carried on business in groundnut, cotton and cotton-seed."}}, {"text": "Nanded", "label": "GPE", "start_char": 614, "end_char": 620, "source": "ner", "metadata": {"in_sentence": "In the year C of assessment 1954-55 the Income-tax Officer, Nanded, brought\n\n10 tax a third share in Rs."}}, {"text": "Murlidhar", "label": "OTHER_PERSON", "start_char": 777, "end_char": 786, "source": "ner", "metadata": {"in_sentence": "51,280 computed as profits from the business in the hands of each of the three parties, and thereafter he called upon Murlidhar to submit a return of the \"income of the joint venture\" on the footing that the parties thereto con- D stiluled an unregistered firm.", "canonical_name": "Murlidhar Jhawar"}}, {"text": "December 18, 1957", "label": "DATE", "start_char": 1059, "end_char": 1076, "source": "ner", "metadata": {"in_sentence": "Murlidhar complied with the requisition and submitted in November 1957 a return, 1 but later applied 10 withdraw it by application dated December 18, 1957."}}, {"text": "s. 23", "label": "PROVISION", "start_char": 1230, "end_char": 1235, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 1247, "end_char": 1261, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High Court of Judicature at Bombay", "label": "COURT", "start_char": 2163, "end_char": 2197, "source": "ner", "metadata": {"in_sentence": "The Tribunal submiued a statement of the case and referred 1he following question to the High Court of Judicature at Bombay:\n\n\"Whether on the facts and in the circumstances of the case the assessment of the unregistered firm was proper and legal, the two partners of this partnefship\n\n' •\n\n\" )."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2641, "end_char": 2645, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 2660, "end_char": 2674, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3065, "end_char": 3069, "source": "regex", "metadata": {"statute": null}}, {"text": "Viswanatha Sastri", "label": "OTHER_PERSON", "start_char": 3729, "end_char": 3746, "source": "ner", "metadata": {"in_sentence": "Mr. Viswanatha Sastri for the Department contends that the Income-tax Officer making the first assessment of the three parties to the joint venture was not informed that the three parties con- F stituted an unregistered firm and therefore the Income-tax Officer was in law competent to assess the entity which was in truth liable to be assessed to tax, and in making the earlier order of assessment he cannot be deemed to have exercised an option which precluded him from assessing the income of the three parties as an unregistered firm."}}, {"text": "[1964] 8 S.C.R 85", "label": "CASE_CITATION", "start_char": 4838, "end_char": 4855, "source": "regex", "metadata": {}}, {"text": "Pannalal", "label": "OTHER_PERSON", "start_char": 5365, "end_char": 5373, "source": "ner", "metadata": {"in_sentence": "The transactions in various commodities were carried on by Pannalal and Govindbai who were partners of Messrs.\n\nPurna Ginning & Pressing Factory and by Murlidhar.", "canonical_name": "Pannalal Lahoti"}}, {"text": "Purna Ginning & Pressing Factory", "label": "ORG", "start_char": 5418, "end_char": 5450, "source": "ner", "metadata": {"in_sentence": "The transactions in various commodities were carried on by Pannalal and Govindbai who were partners of Messrs.\n\nPurna Ginning & Pressing Factory and by Murlidhar."}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 6061, "end_char": 6075, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Puma Ginning and Pressing Factory", "label": "ORG", "start_char": 6922, "end_char": 6955, "source": "ner", "metadata": {"in_sentence": "Only the final order of the Income-tax Officer which directs : \"Add : Joint venture income\n\nwith Messrs. Puma Ginning and Pressing Factory taken pmvi sionally subject to rectification after the assessment of the joint venture\" is incorporated in the order of the Appellate Assistant (!,)"}}, {"text": "s. 23B", "label": "PROVISION", "start_char": 7247, "end_char": 7253, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 7343, "end_char": 7348, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7361, "end_char": 7375, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1966_3_224_234_EN", "year": 1966, "text": "GOWLIBUDDANNA A v.\n\nCOMMISSIONER OF INCOME-TAX, MYSORE, ,\n\nBANGALORE .. .\n\nJanuary 10, 1966 B\n\n[K. SUDDA RAO, J. C. SHAH AND S. M. SIER!, JJ.]\n\nlnc<nne Tax Act, 1922 (II o/ 1922), 1. 3-Hlndu undivid1d fom//y- Whether includes ; oint family with one surviving male mtmber and /nna/e member-1. '\n\nB, hill wife, his two unmarried daughters and the appellant who was c B's adop!cd son, were members of a Hindu undi\\'ided family. In respect of the income from dealings of the family, B was assessed during his JifjH, jmc in tho status of a manager of the Hindu undivided family. After ru. death for the ent year 1951-52, the Incom<rtax Ofllcer UICllCd\n\nthe appellant on the basis that tho income waa that of a Hindu undivided family and rejected the latter's contention that he should be assessed as an indhidual. The order of assessment was confirmed by the Appellate Aaalotant Commissioner, the Tribunal and on a reference, by tbo Hi&h D Coun.\n\nIt was contended on behalf of the appellant that tbe expression 'Hindu • undivided family' used in s. 3 of the Income Tax Act, 1922, means a ' Hindu coparcenary and when on the death of one out of two carcCllll'3 the enfjre property devolve.c; upon a single co-parcener, assessment cannot be made of the surviving co-parcener, in the status of a Hindu undivided\n\nf•mily.\n\nAlternatively it wa.• contended that even if the entity 'Hindll E undivided family' in s. 3 is intende<.I to mean a Hindu joint family, a sole survivin~ male member of the family, even if there be widows in\n\nthe family entitled to maintenance, may only be assessed as an indivi dual.\n\nHELD : Propeny of a Joint family does not cease to belong to the family merely because the family is represented by a single co-parcener who poslCS'lCS rights similar to those of an owner of property.\n\nIn the Ji' present case the propeny which yielded the income origmally belonged to a Hindu undivided family. On the cleath of B although the family which included & widow and females born in the family was represented by the appellant alone, the property continued to belong to the undivided family and income received therefrom was taxable as income of the Hindu undivided family.\n\n(234 DI\n\nUnder s. 3 of the Act, it is not a Hindu coparcenary but a Hintlu G undivided family which one of the ass....., ble entities.\n\nA Hindu joiat family consists of all persons lineally descended from a common ancestor , and includeo their wives and unmarried daughters.\n\nA Hindu coparcenary ~- is a much narrower body and includes only those persons who :'itiuire - by binh a status In the joint or co-parcenary propeny.\n\nTherefore I ere may be a Joint Hindu family conaistin2 of & single male member and wido\"\"' of deceased of co-parceners. [227 Al\n\nThere was no force in the alternative plea that there must be at least H two male members to form a Hindu undivided family aa a taxablo entity.\n\nThe expression 'Hindu undivided family' in the Act is used in the aeoae in which a Hindu joint family is understood in Hindu law.\n\nUnder the\n\n-i \" _,\n\nA Hindu system of law a joint family consist of a single male member and widows of deceasecl male membeG and there is nothing in the Act to indicate that a Hindu undivided family as an assessable entity must consist of at least two male members. (231 El\n\nKalyanji Vithaldas & Others v. C.l.T., Bengal, 5 I.T.R. 90 (64 I.A. 28) C.J.T., Bombay v. Gomedal/i Lakshminarayan, 3 LT.R. 367; In re Mooljl Slcka & others, 3 I.T.R. 123; C.I.T. v. A. P. Swamy Gomeda/ll, 5 B I.T.R. 416; Attorney-General of Ceylon v. A. R. Arunachalam Chettiar and others, L.R. [1957] A.C. 540; 34 l.T.R. Supp. 42, discussed.\n\nCiv11. APPELLATE JURISDICTION : Civil Appeal No. 328 of 1965.\n\nAppeal from the judgment and order dated June 20, 1962 of the Mysore High Court in Income-tax Reference Case No. 15 of c 1961.\n\nK. Srinivasan and R. Gopalakrishnan, for the appellant.\n\nA. V. Viswanatha Sastri, R. Ganapathy Iyer and R. N. Sachthey, for the respondent.\n\nD S. T. Desai, R. P. Kapur for I. N. Shroff, for the intervener.\n\nThe Judgment of the <'.:ourt was delivered by Saali, J. One Buddappa, his wife, his two unmarried daughters and his adopted son Buddanna were members of a Hindu undivided family.\n\nBuddappa died on July 9, 1952. In respect of the E business dealings of the family, Buddappa was assessed during his life-time in the status of a manager of the Hindu undivided family.\n\nFor the assessment year 1951-52 the Additional Income-tax Officer, Raichur assessed Buddanna in respect of the income of the previous year which ended on November 8, 1950 as a Hindu undivided family under the title \"Sri Gowli Buddappa (deceased) F represented by his legal successor Sri Gowli Buddanna, Oil Mills\n\nOwner, Raichur\". The order of assessment was confirmed in appeal by the Appellate Assistant Commissioner, subject to the variation that the assessment was made under the title \"Buddanna -a Hindu undivided family\".\n\nThe Income-tax Appellate Tri- G bunal confirmed the order of the Appellate Assistant Commissioner.\n\nThe Tribunal then referred the following questions of law t() High Court of Mysore for opinion under s. 66 ( 1) of the Indian Income-tax Act :\n\n\"(i) Whether the sole male surviving coparcener of the Hindu joint family, his w'dowed mother and sisters constitute a Hindu undivided family within the meaning of the Income-tax Act ?\n\nSUPREME COUllT llEPOl.TS\n\n(1966) 3 S.C.I..\n\n(ii) Whether the assessment of the income in the hands of the Hindu undivided family was correct?\n\n(iii) Whether the Appellate Assistant Commissioner was entitled to correct the status ?\"\n\nThe High Court recorded answers in the affirmative on all the B ( questions.\n\nWith certificate granted by the High Court undu s. 66-A of the Indian Income-tax Act, Buddanna has appealed to this Court.\n\nBefore the Appellate Assistant Commissioner it was contended by Buddanna that he could in law have only been assessed as C an individual and that the Income-tax Officer was precluded by virtue of the proviso to s. 26(2} to pass the order for assessment for the year 1951-52 against him.\n\nThe Appellate Assistant Commissioner and the Appellate Tribunal rejected that contention.\n\nBuddappa was a resident of and carried on business at Raichur which before January 26, 1950, formed part of the territory\n\n-Of H.E.H. the Nizam.\n\nThe joint family of Buddappa and Buddanna was governed by the Mlrakshara School of Hindu law, and there was at the material time no legislation in force in the territory by which on the death of a male member in a joint Hindu E family interest in the family estate devolved upon his widow.\n\nSuch a widow had therefore only a right to receive maintenance from the estate.\n\nCounsel for the appellant urged that the expression \"Hindu undivided family\" used in s. 3 of the Income-tax Act means a F Hindu coparcenary and when on the death of one out of two\n\nt'lparccners the entire property devolves upon a single coparcener, assessment cannot be made on the surviving coparcener in the status of a Hindu undivided family.\n\nAlternatively, it waa contended that even if the entity Hindu undivided family in the charging section of the Income-tax Act is intended to mean a G Hindu joint family, there must be at least two male membm in the family, and where there are not two such members the sole surviving male member of the family, even if there be widows entitled to maintenance out of the estate, mav be assessed in the status of an individual, and not of a Hindu undivided family, unlea the widows of deceased male members are entitled to the benefit H cl the Hindu Women's Rights to Property Act, 1937, or the IDndu Succession Act, 1956.\n\n' '\n\n\"\" '\\\n\nA The first contention is plainly unsustainable. Under s. 3 of the Income-tax Act not a Hindu coparcenary but a Hindu undivided family is one of the assessable entities. A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint B family : it includes only those persons who acquire by birth an interest fo the joint or coparcenary property, these being the sons, grandsons and great-grandsons of the holder of the joint property for the time being. Therefore there may be a joint Hindu family consisting of a single male member and widows of deceased copar- . ceners.\n\nIn Kalyanji Vithaldas & Others v. Commissioner of C Income-tax, Bengal(1 ), delivering the judgment of the Judicial\n\nCommittee, Sir George Rankin observed :\n\n\"The phrase \"Hindu undivided family\" is used in the statute with reference not to one school only of Hindu law but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words \"Hindu coparcenary\", all the more that it is not possible to say on the face of the Act that no female can be a member.\"\n\nE The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity alro has no force. The expression \"Hindu undivided family\" in the Income-tax Act is used in the sense in which a Hindu joint family is understood under the personal law of Hindus. Under the Hindu system of law a joint family may consist of a single male member and F widows of deceased male. members, and apparently the Incometax Act does not indicate that a Hindu undivided family as an assessable entity must consist of at least two male members.\n\nCounsel for the appellant said that there are certain intrinsic indications in the annual Finance Acts which support the contea- G tion that the income received or arising from property in the hands of a sole surviving male member in a joint Hindu family, even if there be females having a right to maintenance out of that property, is taxable as income of an individual, and not of the family.\n\nHe relied by way of illustration upon the Finance Act, 1951, which in the First Schedule sets out the rates of income-tax H payable by individuals, Hindu undivided family, unregistered firm\n\n(I) 5 1.T.R. 90=L.R. 64 I.A. 28.\n\n228 SUPREME COURT REPOllTS\n\n[1966) 3 S.C.R.\n\nand other association of per5ons. The relevant part of the Schedule prescribing rates of tax is as follows :\n\n\"Provided that- ( i) no income-tax shall be payable on a total income\n\nwhich, before deduction of the allowance, if any, for earned income, does not exceed the limit specified below;\n\nThe limit referred to in the above proviso shall be-\n\n( i) Rs. 7,200 in the case of every Hindu undividH\n\nfamily which satisfies as at the end of the previous year either of the following conditions, nam•ly:\n\n(a) that it has at least two members entitled to claim partition who are not less than I 8 yea rs of age; or ( b) that it has at least two members entitled to claim partition neither of whom is a lineal descendant of the other and both of whom are not lineally descended from any otller living member of the family; and\n\n(ii) Rs. 3,600 in every other case.\"\n\nFif5t\n\nBut the Schedule sets out the limits of exempted income: it lk>es net state or imply that a Hindu undivided family must consist of at least tw• 111cmbcrs entitled to claim partition. The text Qf the cla11s11 furni51!es a clear indication to the contrary.\n\nReliance was also places upon the form of \"Rwturn\" prescrib- F ell u1tiu the lfoles, whicil. by s. 5'!1 of the Income-tax Act, l '22 have 11ffect as if enacted in the Act. Part IIIA of the Form prescribes certain particulars to be incorporated in the case ef a Hinti11 untlividce family, viz. names of members of the family at the end of the previous year who were entitled to claim partition, relatienship, age at the end of the previous year and remarks, wt G thereby it is not intended that a Hindu undivided family as an ass.ssable entity does not exist so long as there are not at least twe or more members entitled to claim partition. The information is required to be given in Part illA of the Form merely to enable the Income-tax Officer to consider which of the two parts of the proviso in the First Schedule to the relevant Finance Act II prescribing the limit of exemption in respect of the Hindu undivided family applies.\n\n\"' ....\n\n/ 4:\n\n. _, •\n\nA Sub-section ( 1) of s. 25-A on which reliance was placed also does not imply that a Hindu undivided family must consist of more male members than ene. The sub-section only prescribes the procedure wher.::by the memb6rs of a family which has llitherto looen assessed in the status of a Hindu undivided family may obtain an ordtr that they may, because of partition of the joint B status, be assesstd as stparated members. The clause is purely procedural: it dees not en.act either expressly or by implicatfom that a Hindu undivided family assessed as a unit must consist of at least two male members who are capable of demanding a partition. c Counsel for the appellant placed strong reliance upon certain observations of the Judieial Committee in the judgment in Kalyanji Vlthaldas's case(') in which they disapproved of the view expressed by the Bern.bay High Court in Commissioner 0f lncumetax, Bombay v. Gomedalli Lakshminarayan('). In the case D decided by the l'l0mbay High Court a joint family c0nsisted of a father and a son and their respective wives. The father died, and in the year of assessment th.~ joint family consisted of the son, his mother and his wife.\n\nIn dealing with the question referred by the Commissioner of Income-tax whether the income received by the son should be regarded as his individual income or as the E income of a Hindu undivided family for the purpose of assessment\n\nto super-tax under the Indian Incom-e-tax Act, the B0mbay High Court held that the expression \"Hindu undivided family\" as used in the Income-tax Act includes families consisting of a sole surviving male member and female members emtitled to mainten&nce, and the ineome of the assessee should therefore be treated u the F income of a Hindu undivided family.\n\nIn Kalyanji Vithaldas's case(') which dealt with a group of appeals from the judgment of the Calcutta High C\"iurt in In re Mlji Sicka & Others(•) the Judicial Committee o9served :\n\n\"Tile High Cowrt ( ef Calcutta) approached the cases by considering first whether the assessee's famiiy was a Hindu uadivialei family, and in the end left unanswered the questil'>n whetlter the inc0me under assessment was the inc•me of that family.\n\nThis is due no doubt to the way iu. which the Commissio11er haci stated\n\nthe questions. But, after all if the relevant Hindu law had been that the income belonged, not to the assessee\n\n(I)~ I.T.R. 90=L.R. 64 I.A. 28.\n\n(2) 3 I.T.R. 367.\n\n(3) 3 I.T.R. 123.\n\n230 SUPllBME COU.T REPORTS\n\n(1966)3 S.C.R.\n\nhimself, but to the assessce, his wife and daughter joint ly, it is difficult to sec how that association of indivi\n\nduals could have been refused the description \"Hindu joint family\".\n\nTho Bombay High Court, on the other hand, in Laxmi naraya11°s case having held that the assesscc, his wife and mother were a Hindu undivided family, arrived too readily at the conclusion that the income was the income of the family.\"'\n\nThe Judicial Committee further observed :\n\n\"Under Section 3 or Section 55 income is not to be attributed to any one of the five classes of persons mentioned by any loose or extended interpretation of the words, but only where the application of the words is warranted by their ordinary legal meaning . . . • In an extra legal sense, and even for sonic purposes of legal theory, ancestral property may perhaps be described, and usefully described, as family property; but it does not follow that in the eye of th.e Hindu law it belongs, save in cel1ain circumstances, to the family as distinct from the individual. By reason of its origin a man's property may be liable to be divested wholly or in part on the happening of a particular event, or may be answerable for particular obligations, or may pass at his death in a particular way; but if, in spite of all such facts, his personal law regards him as the owner, t'ie propel1y as his prope11y and the income therefrom as his income, it is chargeable to income-tax as his, i.e. as the income of an individual. In their Lordships' view it would not be in consonance with ordinary notions or with a correct interpretation of the law of the Mitakshara, to hold that property which a man has obtained from his father belongs to a Hindu undivided family by reason of his having a wife and daughters.\"\n\nThe facts of the cases which were decided by the Judicial Committee need to be scrutinized carefully. Before the Judicial Committee there were six appeals by six partners of the firm Moolji Sicka: they were Moolji, Purshottam, Kalyanji, Chaturbhuj, Kanji and Sewdas. Moolji, Purshottam and Kalyanji had H each a son or sons from whom he was not divided. But the income of the firm, which had to be a!sessed to super-tax was the separate\n\nt . ,\n\n-•\n\n...... •\n\nA income. of each of these partners. Chaturbhuj had a wife and daughter but no son, and the income was bis separate property.\n\nKanji and Sewdas, sons of Moolji, were marrie~ me~, but neier had a son : they received by gift from Mool11 their respective interests in the firm, and for the purpose of the case it was ass\\Jmed that the interest of each was ancestral property in which if he Il had a son the son would have taken an interest by birth. But no son having been born, the interest of Kanji and Sewdas in the property was not diminished or qualified. The Judicial Committee held that the wife and the daughters of a Hindu had right to maintenance out of his separate property as well as out of his c coparcenary interest, but the mere existence of a wife or daughter did not make ancestral property in his hands joint. They observed:\n\n\" 'Interest' is a word of wide and vague significance, and no doubt it might be used of a wife's or daughter's right to be maintained which right accrues in the D daughter's case on birth; but if the father's obligations are increased, his ownership is not divested, divided or impaired by marriage or the birth of a daughter. This is equally true of ancestral property belonging to himself alone as of self-acquired property.\"\n\nE The Judicial Committee accordingly held that in none of the six appeals before them could the income falling to the shares of the partners of a registered firm be treated as income of a Hindu undivided family and assessed on that footing.\n\nIn the view of the Judicial Committee, income received by four out of the six partners was their separate income: in the case of the remaining F two partners the income was from sources which were ancestral.\n\nBut merely because the source was held by a member who had received it from his father and was on that account ancestral, the income could not be deemed for purposes of assessment to be income of a Hindu undivided family, even though Kanji had a wife and a daughter, and Sewdas had a wife who had rights to be G maintained under the Hindu law .\n\nIn Gomeda/li Lakshminarayan's cas.e(') the property was ancestral in the hands of the father, and the son had acquired by birth an interest therein.\n\nThere was a subsisting Hindu undivided family during the life-time of the father and that family did H not come to an end on bis death. On these facts the High Court of Bombay held that the income received from the property wa<>\n\n(I) 5 I.T.R. :167.\n\nLt OSupCJ /66-2\n\nSUP.REME\n\nCOURT REPORTS\n\n[1966] 3 S.C.R.\n\nliable to super-tax in the hands of the son who was the surviving A male member of the Hindu undivided family in the year of assess- ment. This distinction in the facts in the case then under discussion and the facts in Gomedalli Lakshminarayan's case(') was\n\nnot adverted to and the Board observed in Kalyanji Vithaldas's case( 2 ) that the Bombay High Coun \"arrived too readily at the conclusion that the income was the income of the family.\" When 8 Gomeda//i Lakshminarayan's case(') was carried in appeal to the Judicial Committee, the Board regarded themselves as bound by the interpretation of the words \"Hindu undivided family\" employed in the Indian Income-tax Act in the case of Ka/yanji Vithaldas(Z), and observed that since the facts of the case were not in any material respect different from the facts in the car!i.cr case, C the answer to the question referred should be that \"th.e income received by right of survivorship by the sole surviving male member of a Hindu undivided family can be taxed in the hands of such male member as his own individual income for the purpose of assessment to super-tax under s. 55 of the Indian Income-tax D Act, 1922.\": Commissioner of Income-tax v. A. P. Swamy G<>- medalli(').\n\nIt may however be recalled that in Kalyanji Vithaldas's case(') income assessed to tax belonged separately to four out of six partners : of the remaining two it was from an ancestral source but the fact that each such partner had a wife or daughter did J: not make that income from an ancestral source income of the undivided family of the panner, his wife and daughter. In Gomedalli Lakshminarayan's case(') the propeny from which income accrued belonged to a Hindu undivided family and the effect of the death of the father who was a manager was merely to invest the rights of a manager upon the son. The income from the pro- ¥ perty was and continued to remain the income of the undivided family. This distinction which had a vital bearing on the issue falling to be determined was not given effect to by the Judicial Committee in A. P. Swamy Gomedal/i's case(').\n\nA recent judgment of the Judicial Committee in a ca5e aris- G ing from Ceylon-Attorney-General of Ceylon v. A. R. Arunachalam Chetiar and Others(') is in point. One Arunachalam -a Nattukottai Chettiar-and his son constituted a joint family governed by the Mitakshara School of Hindu law. The father aad the son were domiciled in India and had trading and other interests\n\nin India, Ceylon and Far Eastern Countries [Vide Attorney- H\n\n5 l.T.ll. 367.\n\n(3) ! l.T.R. 416.\n\n(2) S 1.T.R. 90-L.R. 641.A. 28.\n\n(4) L.R. [19$7) A.C. 540 : 341.T.R. Suppl. 42.\n\n- >\n\n' •\n\nA General v. A. R. Arunachalam Chettiar (No. 1)-(L.R.[1957] A. C. 513). The undivided son died in 1934 and Arunachalam became the sole surviving coparcener in a Hindu undivided family to which a number of female members belonged.\n\nArunachalam died in 1938 shortly after the Estate Duty Ordinance No. 1 of 1938 came into operation in Ceylon. By s. 73 of the Ordi- B nance it was provided that property passing on the death of a member of a Hindu undivided family was exempt from payment of estate duty. At all material times, the female members of the family had the right of maintenance and other rights which belonged to them as such members. The widows in the family including the widow of the predeceased son had also the power c to introduce coparceners in the family by adoption, and that power\n\nwas exercised after the death of Arunachalam. On a claim to estate duty in respect of Arunachalam's estate in Ceylon, it was held that Arunachalam was at his death a member of a Hindu undivi(oJed family, the same undivided family of which his son, D when alive was a member, and of which the continuity was preserved after Arunachalam's death by adoptions by the widows of the family. The Judicial Committee observed at p. 543 :\n\n\" ...... though it may be correct to speak of him (the sole surviving coparcener) as the \"owner\", yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality : it is such too, that femule members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it.\n\nAnd these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property . . it would not appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners.\"\n\nDealing with the question whether a single coparcener can alienate the property in a manner not open to one of several coparceners, they observed that it was,\n\n\"an irrelevant consideration.\n\nLet it be assumed that his power of alienation is unassailable: that means no more than that he has in the circumstances the power to alienate joint family property.\n\nThat is what it is\n\n2J4\n\nSUPREME COURT\n\nREPORTS\n\n[1966] .1 S.C.R.\n\n•mtil he alienates it, and, if he does not alienate it, that is what it remains.\n\nThe fatal flaw in the argument of the appellant appeared to be that, having labelled the ;•1rviving coparcener \"owner\", he then attributed to his ownership such a congeries of rights that the property could no longer be called \"joint family property\". 1be family, a body fluctuating in numbers and comprised of male and female members, may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the coparceners.\n\nThere is in fact nothing to be gained by the use of the word \"owner\" in this connexion. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family prope11y can properly be described as \"joint property\" of the undivided family.\"\n\nProperty of a joint family therefore dlles not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess.\n\nIn the case in hand the property which yielded the income originally belonged to a Hindu undivided family.\n\nOn the death of Buddappa the family which included a widow and females born in the family was represented by Buddanna alone but the property still conlinucd to belong to that undivided family and income received therefrom was taxable as income of the Hindu undivided family.\n\nThe Hi!!h Coll\"t was therefore right in recording their\n\nan., wers referred for opinion.\n\nWe may observe that in this case we ellpress no opinion on the question whether a Hindu undivided family may for the purpose of the Indian Income-tax Act be treated as a taxable entity when it consists of a single member-male or female.\n\nThe appeal is dismissed with costs.\n\nAppeal dismissed.\n\n' ,", "total_entities": 81, "entities": [{"text": "GOWLIBUDDANNA", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "GOWLI BUDDANNA", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, MYSORE, ,\n\nBANGALORE", "label": "RESPONDENT", "start_char": 20, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, MYSORE, BANGALORE", "offset_not_found": false}}, {"text": "January 10, 1966", "label": "DATE", "start_char": 75, "end_char": 91, "source": "ner", "metadata": {"in_sentence": "January 10, 1966 B\n\n[K. SUDDA RAO, J. C. SHAH AND S. M. SIER!,"}}, {"text": "K. SUDDA RAO, J.", "label": "JUDGE", "start_char": 96, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 113, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Tax Act, 1922", "label": "STATUTE", "start_char": 152, "end_char": 165, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1041, "end_char": 1045, "source": "regex", "metadata": {"linked_statute_text": "Tax Act, 1922", "statute": "Tax Act, 1922"}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 1053, "end_char": 1073, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1401, "end_char": 1405, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2199, "end_char": 2203, "source": "regex", "metadata": {"statute": null}}, {"text": "K. Srinivasan", "label": "LAWYER", "start_char": 3826, "end_char": 3839, "source": "ner", "metadata": {"in_sentence": "K. Srinivasan and R. Gopalakrishnan, for the appellant."}}, {"text": "R. Gopalakrishnan", "label": "LAWYER", "start_char": 3844, "end_char": 3861, "source": "ner", "metadata": {"in_sentence": "K. Srinivasan and R. Gopalakrishnan, for the appellant."}}, {"text": "A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 3883, "end_char": 3906, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, R. Ganapathy Iyer and R. N. Sachthey, for the respondent."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 3908, "end_char": 3925, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, R. Ganapathy Iyer and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3930, "end_char": 3944, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, R. Ganapathy Iyer and R. N. Sachthey, for the respondent."}}, {"text": "D S. T. Desai", "label": "LAWYER", "start_char": 3967, "end_char": 3980, "source": "ner", "metadata": {"in_sentence": "D S. T. Desai, R. P. Kapur for I. N. Shroff, for the intervener."}}, {"text": "R. P. Kapur", "label": "LAWYER", "start_char": 3982, "end_char": 3993, "source": "ner", "metadata": {"in_sentence": "D S. T. Desai, R. P. Kapur for I. N. Shroff, for the intervener."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 3998, "end_char": 4010, "source": "ner", "metadata": {"in_sentence": "D S. T. Desai, R. P. Kapur for I. N. Shroff, for the intervener."}}, {"text": "Saali", "label": "JUDGE", "start_char": 4079, "end_char": 4084, "source": "ner", "metadata": {"in_sentence": "The Judgment of the <'.:ourt was delivered by Saali, J. One Buddappa, his wife, his two unmarried daughters and his adopted son Buddanna were members of a Hindu undivided family."}}, {"text": "Buddappa", "label": "JUDGE", "start_char": 4093, "end_char": 4101, "source": "ner", "metadata": {"in_sentence": "The Judgment of the <'.:ourt was delivered by Saali, J. One Buddappa, his wife, his two unmarried daughters and his adopted son Buddanna were members of a Hindu undivided family.", "canonical_name": "Buddappa"}}, {"text": "Buddanna", "label": "JUDGE", "start_char": 4161, "end_char": 4169, "source": "ner", "metadata": {"in_sentence": "The Judgment of the <'.:ourt was delivered by Saali, J. One Buddappa, his wife, his two unmarried daughters and his adopted son Buddanna were members of a Hindu undivided family.", "canonical_name": "Buddappa"}}, {"text": "Buddappa", "label": "JUDGE", "start_char": 4213, "end_char": 4221, "source": "ner", "metadata": {"in_sentence": "Buddappa died on July 9, 1952.", "canonical_name": "Buddappa"}}, {"text": "Raichur", "label": "GPE", "start_char": 4466, "end_char": 4473, "source": "ner", "metadata": {"in_sentence": "For the assessment year 1951-52 the Additional Income-tax Officer, Raichur assessed Buddanna in respect of the income of the previous year which ended on November 8, 1950 as a Hindu undivided family under the title \"Sri Gowli Buddappa (deceased) F represented by his legal successor Sri Gowli Buddanna, Oil Mills\n\nOwner, Raichur\"."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 5129, "end_char": 5134, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 5154, "end_char": 5168, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hindu undivided family within the meaning of the Income-tax Act", "label": "STATUTE", "start_char": 5291, "end_char": 5354, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 66", "label": "PROVISION", "start_char": 5717, "end_char": 5722, "source": "regex", "metadata": {"linked_statute_text": "Hindu undivided family within the meaning of the Income-tax Act", "statute": "Hindu undivided family within the meaning of the Income-tax Act"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 5739, "end_char": 5753, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Buddappa", "label": "PETITIONER", "start_char": 6172, "end_char": 6180, "source": "ner", "metadata": {"in_sentence": "Buddappa was a resident of and carried on business at Raichur which before January 26, 1950, formed part of the territory\nOf H.E.H. the Nizam.", "canonical_name": "Buddappa"}}, {"text": "January 26, 1950", "label": "DATE", "start_char": 6247, "end_char": 6263, "source": "ner", "metadata": {"in_sentence": "Buddappa was a resident of and carried on business at Raichur which before January 26, 1950, formed part of the territory\nOf H.E.H. the Nizam."}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 6787, "end_char": 6801, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7147, "end_char": 7161, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7736, "end_char": 7750, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "George Rankin", "label": "OTHER_PERSON", "start_char": 8509, "end_char": 8522, "source": "ner", "metadata": {"in_sentence": "In Kalyanji Vithaldas & Others v. Commissioner of C Income-tax, Bengal(1 ), delivering the judgment of the Judicial\n\nCommittee, Sir George Rankin observed :\n\n\"The phrase \"Hindu undivided family\" is used in the statute with reference not to one school only of Hindu law but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words \"Hindu coparcenary\", all the more that it is not possible to say on the face of the Act that no female can be a member.\""}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 9075, "end_char": 9089, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "relied by way of illustration upon the Finance Act, 1951", "label": "STATUTE", "start_char": 9858, "end_char": 9914, "source": "regex", "metadata": {}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 9929, "end_char": 9943, "source": "regex", "metadata": {"linked_statute_text": "He relied by way of illustration upon the Finance Act, 1951", "statute": "He relied by way of illustration upon the Finance Act, 1951"}}, {"text": "L.R. 64 I.A. 28", "label": "CASE_CITATION", "start_char": 10062, "end_char": 10077, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 11346, "end_char": 11350, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 11361, "end_char": 11375, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 12053, "end_char": 12067, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 12230, "end_char": 12235, "source": "regex", "metadata": {"statute": null}}, {"text": "Kalyanji Vlthaldas", "label": "OTHER_PERSON", "start_char": 12973, "end_char": 12991, "source": "ner", "metadata": {"in_sentence": "c Counsel for the appellant placed strong reliance upon certain observations of the Judieial Committee in the judgment in Kalyanji Vlthaldas's case(') in which they disapproved of the view expressed by the Bern.bay High Court in Commissioner 0f lncumetax, Bombay v. Gomedalli Lakshminarayan(').", "canonical_name": "Ka/yanji Vithaldas(Z"}}, {"text": "Bern.bay High Court", "label": "COURT", "start_char": 13057, "end_char": 13076, "source": "ner", "metadata": {"in_sentence": "c Counsel for the appellant placed strong reliance upon certain observations of the Judieial Committee in the judgment in Kalyanji Vlthaldas's case(') in which they disapproved of the view expressed by the Bern.bay High Court in Commissioner 0f lncumetax, Bombay v. Gomedalli Lakshminarayan(')."}}, {"text": "B0mbay High Court", "label": "COURT", "start_char": 13667, "end_char": 13684, "source": "ner", "metadata": {"in_sentence": "In dealing with the question referred by the Commissioner of Income-tax whether the income received by the son should be regarded as his individual income or as the E income of a Hindu undivided family for the purpose of assessment\n\nto super-tax under the Indian Incom-e-tax Act, the B0mbay High Court held that the expression \"Hindu undivided family\" as used in the Income-tax Act includes families consisting of a sole surviving male member and female members emtitled to mainten&nce, and the ineome of the assessee should therefore be treated u the F income of a Hindu undivided family."}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 13750, "end_char": 13764, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Kalyanji Vithaldas", "label": "OTHER_PERSON", "start_char": 13977, "end_char": 13995, "source": "ner", "metadata": {"in_sentence": "In Kalyanji Vithaldas's case(') which dealt with a group of appeals from the judgment of the Calcutta High C\"iurt in In re Mlji Sicka & Others(•) the Judicial Committee o9served :\n\n\"Tile High Cowrt ( ef Calcutta) approached the cases by considering first whether the assessee's famiiy was a Hindu uadivialei family, and in the end left unanswered the questil'>n whetlter the inc0me under assessment was the inc•me of that family.", "canonical_name": "Ka/yanji Vithaldas(Z"}}, {"text": "Calcutta High C\"iurt", "label": "COURT", "start_char": 14067, "end_char": 14087, "source": "ner", "metadata": {"in_sentence": "In Kalyanji Vithaldas's case(') which dealt with a group of appeals from the judgment of the Calcutta High C\"iurt in In re Mlji Sicka & Others(•) the Judicial Committee o9served :\n\n\"Tile High Cowrt ( ef Calcutta) approached the cases by considering first whether the assessee's famiiy was a Hindu uadivialei family, and in the end left unanswered the questil'>n whetlter the inc0me under assessment was the inc•me of that family."}}, {"text": "Mlji Sicka", "label": "OTHER_PERSON", "start_char": 14097, "end_char": 14107, "source": "ner", "metadata": {"in_sentence": "In Kalyanji Vithaldas's case(') which dealt with a group of appeals from the judgment of the Calcutta High C\"iurt in In re Mlji Sicka & Others(•) the Judicial Committee o9served :\n\n\"Tile High Cowrt ( ef Calcutta) approached the cases by considering first whether the assessee's famiiy was a Hindu uadivialei family, and in the end left unanswered the questil'>n whetlter the inc0me under assessment was the inc•me of that family.", "canonical_name": "Moolji Sicka"}}, {"text": "L.R. 64 I.A. 28", "label": "CASE_CITATION", "start_char": 14605, "end_char": 14620, "source": "regex", "metadata": {}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 14895, "end_char": 14912, "source": "ner", "metadata": {"in_sentence": "Tho Bombay High Court, on the other hand, in Laxmi naraya11°s case having held that the assesscc, his wife and mother were a Hindu undivided family, arrived too readily at the conclusion that the income was the income of the family.\"'"}}, {"text": "Laxmi naraya11", "label": "OTHER_PERSON", "start_char": 14936, "end_char": 14950, "source": "ner", "metadata": {"in_sentence": "Tho Bombay High Court, on the other hand, in Laxmi naraya11°s case having held that the assesscc, his wife and mother were a Hindu undivided family, arrived too readily at the conclusion that the income was the income of the family.\"'"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 15177, "end_char": 15186, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 55", "label": "PROVISION", "start_char": 15190, "end_char": 15200, "source": "regex", "metadata": {"statute": null}}, {"text": "Moolji Sicka", "label": "OTHER_PERSON", "start_char": 16659, "end_char": 16671, "source": "ner", "metadata": {"in_sentence": "Before the Judicial Committee there were six appeals by six partners of the firm Moolji Sicka: they were Moolji, Purshottam, Kalyanji, Chaturbhuj, Kanji and Sewdas.", "canonical_name": "Moolji Sicka"}}, {"text": "Purshottam", "label": "PETITIONER", "start_char": 16691, "end_char": 16701, "source": "ner", "metadata": {"in_sentence": "Before the Judicial Committee there were six appeals by six partners of the firm Moolji Sicka: they were Moolji, Purshottam, Kalyanji, Chaturbhuj, Kanji and Sewdas.", "canonical_name": "Purshottam"}}, {"text": "Kalyanji", "label": "PETITIONER", "start_char": 16703, "end_char": 16711, "source": "ner", "metadata": {"in_sentence": "Before the Judicial Committee there were six appeals by six partners of the firm Moolji Sicka: they were Moolji, Purshottam, Kalyanji, Chaturbhuj, Kanji and Sewdas.", "canonical_name": "Kalyanji"}}, {"text": "Chaturbhuj", "label": "OTHER_PERSON", "start_char": 16713, "end_char": 16723, "source": "ner", "metadata": {"in_sentence": "Before the Judicial Committee there were six appeals by six partners of the firm Moolji Sicka: they were Moolji, Purshottam, Kalyanji, Chaturbhuj, Kanji and Sewdas."}}, {"text": "Kanji", "label": "PETITIONER", "start_char": 16725, "end_char": 16730, "source": "ner", "metadata": {"in_sentence": "Before the Judicial Committee there were six appeals by six partners of the firm Moolji Sicka: they were Moolji, Purshottam, Kalyanji, Chaturbhuj, Kanji and Sewdas.", "canonical_name": "Kalyanji"}}, {"text": "Sewdas", "label": "PETITIONER", "start_char": 16735, "end_char": 16741, "source": "ner", "metadata": {"in_sentence": "Before the Judicial Committee there were six appeals by six partners of the firm Moolji Sicka: they were Moolji, Purshottam, Kalyanji, Chaturbhuj, Kanji and Sewdas.", "canonical_name": "Sewdas"}}, {"text": "Purshottam", "label": "PETITIONER", "start_char": 16751, "end_char": 16761, "source": "ner", "metadata": {"in_sentence": "Moolji, Purshottam and Kalyanji had H each a son or sons from whom he was not divided.", "canonical_name": "Purshottam"}}, {"text": "Kanji", "label": "PETITIONER", "start_char": 17062, "end_char": 17067, "source": "ner", "metadata": {"in_sentence": "Kanji and Sewdas, sons of Moolji, were marrie~ me~, but neier had a son : they received by gift from Mool11 their respective interests in the firm, and for the purpose of the case it was ass\\Jmed that the interest of each was ancestral property in which if he Il had a son the son would have taken an interest by birth.", "canonical_name": "Kalyanji"}}, {"text": "Sewdas", "label": "PETITIONER", "start_char": 17072, "end_char": 17078, "source": "ner", "metadata": {"in_sentence": "Kanji and Sewdas, sons of Moolji, were marrie~ me~, but neier had a son : they received by gift from Mool11 their respective interests in the firm, and for the purpose of the case it was ass\\Jmed that the interest of each was ancestral property in which if he Il had a son the son would have taken an interest by birth.", "canonical_name": "Sewdas"}}, {"text": "Gomeda", "label": "OTHER_PERSON", "start_char": 19006, "end_char": 19012, "source": "ner", "metadata": {"in_sentence": "In Gomeda/li Lakshminarayan's cas.e(') the property was ancestral in the hands of the father, and the son had acquired by birth an interest therein."}}, {"text": "Lakshminarayan", "label": "OTHER_PERSON", "start_char": 19016, "end_char": 19030, "source": "ner", "metadata": {"in_sentence": "In Gomeda/li Lakshminarayan's cas.e(') the property was ancestral in the hands of the father, and the son had acquired by birth an interest therein."}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 19308, "end_char": 19328, "source": "ner", "metadata": {"in_sentence": "On these facts the High Court of Bombay held that the income received from the property wa<>\n\n(I) 5 I.T.R. :167."}}, {"text": "Gomedalli Lakshminarayan", "label": "OTHER_PERSON", "start_char": 19682, "end_char": 19706, "source": "ner", "metadata": {"in_sentence": "This distinction in the facts in the case then under discussion and the facts in Gomedalli Lakshminarayan's case(') was\n\nnot adverted to and the Board observed in Kalyanji Vithaldas's case( 2 ) that the Bombay High Coun \"arrived too readily at the conclusion that the income was the income of the family.\"", "canonical_name": "Gomedalli Lakshminarayan"}}, {"text": "Bombay High Coun", "label": "COURT", "start_char": 19804, "end_char": 19820, "source": "ner", "metadata": {"in_sentence": "This distinction in the facts in the case then under discussion and the facts in Gomedalli Lakshminarayan's case(') was\n\nnot adverted to and the Board observed in Kalyanji Vithaldas's case( 2 ) that the Bombay High Coun \"arrived too readily at the conclusion that the income was the income of the family.\""}}, {"text": "Gomeda//i Lakshminarayan", "label": "OTHER_PERSON", "start_char": 19914, "end_char": 19938, "source": "ner", "metadata": {"in_sentence": "When 8 Gomeda//i Lakshminarayan's case(') was carried in appeal to the Judicial Committee, the Board regarded themselves as bound by the interpretation of the words \"Hindu undivided family\" employed in the Indian Income-tax Act in the case of Ka/yanji Vithaldas(Z), and observed that since the facts of the case were not in any material respect different from the facts in the car!i.cr case, C the answer to the question referred should be that \"th.e income received by right of survivorship by the sole surviving male member of a Hindu undivided family can be taxed in the hands of such male member as his own individual income for the purpose of assessment to super-tax under s. 55 of the Indian Income-tax D Act, 1922.\":", "canonical_name": "Gomedalli Lakshminarayan"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 20120, "end_char": 20134, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ka/yanji Vithaldas(Z", "label": "OTHER_PERSON", "start_char": 20150, "end_char": 20170, "source": "ner", "metadata": {"in_sentence": "When 8 Gomeda//i Lakshminarayan's case(') was carried in appeal to the Judicial Committee, the Board regarded themselves as bound by the interpretation of the words \"Hindu undivided family\" employed in the Indian Income-tax Act in the case of Ka/yanji Vithaldas(Z), and observed that since the facts of the case were not in any material respect different from the facts in the car!i.cr case, C the answer to the question referred should be that \"th.e income received by right of survivorship by the sole surviving male member of a Hindu undivided family can be taxed in the hands of such male member as his own individual income for the purpose of assessment to super-tax under s. 55 of the Indian Income-tax D Act, 1922.\":", "canonical_name": "Ka/yanji Vithaldas(Z"}}, {"text": "s. 55", "label": "PROVISION", "start_char": 20585, "end_char": 20590, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax D Act, 1922", "label": "STATUTE", "start_char": 20598, "end_char": 20627, "source": "regex", "metadata": {}}, {"text": "A. P. Swamy Gomedal", "label": "OTHER_PERSON", "start_char": 21525, "end_char": 21544, "source": "ner", "metadata": {"in_sentence": "This distinction which had a vital bearing on the issue falling to be determined was not given effect to by the Judicial Committee in A. P. Swamy Gomedal/i's case(')."}}, {"text": "Arunachalam", "label": "PETITIONER", "start_char": 21724, "end_char": 21735, "source": "ner", "metadata": {"in_sentence": "One Arunachalam -a Nattukottai Chettiar-and his son constituted a joint family governed by the Mitakshara School of Hindu law.", "canonical_name": "Arunachalam"}}, {"text": "India", "label": "GPE", "start_char": 21888, "end_char": 21893, "source": "ner", "metadata": {"in_sentence": "The father aad the son were domiciled in India and had trading and other interests\n\nin India, Ceylon and Far Eastern Countries [Vide Attorney- H\n\n5 l.T.ll."}}, {"text": "S 1", "label": "PROVISION", "start_char": 22032, "end_char": 22035, "source": "regex", "metadata": {"statute": null}}, {"text": "Arunachalam", "label": "PETITIONER", "start_char": 22226, "end_char": 22237, "source": "ner", "metadata": {"in_sentence": "The undivided son died in 1934 and Arunachalam became the sole surviving coparcener in a Hindu undivided family to which a number of female members belonged.", "canonical_name": "Arunachalam"}}, {"text": "s. 73", "label": "PROVISION", "start_char": 22463, "end_char": 22468, "source": "regex", "metadata": {"statute": null}}, {"text": "Ceylon", "label": "GPE", "start_char": 23030, "end_char": 23036, "source": "ner", "metadata": {"in_sentence": "On a claim to estate duty in respect of Arunachalam's estate in Ceylon, it was held that Arunachalam was at his death a member of a Hindu undivi(oJed family, the same undivided family of which his son, D when alive was a member, and of which the continuity was preserved after Arunachalam's death by adoptions by the widows of the family."}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 26343, "end_char": 26357, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1966_3_235_241_EN", "year": 1966, "text": "\\ H\n\nCOMMISSIONER OF lNCOME-TAtX, BOMBAY CITY v.\n\nTATA LOCOMOTIVE & ENGINEERING CO., LTD.\n\nJqnuary 13, 1966\n\n[K. SUBBA RAO, J.C. SHAH ANDS. M. SIKRI, JJ.J\n\nIncome Tux-Conimission received in U.S.A.-Kept in U.S.A. for buying capital goods with sanction of Reserve Bank-Amount later repacr; attd-Surplus in rupees due to devaluation-If capital or rtv,, nue receipt.\n\nThe assessee was a limited company with its registered office _at Bombay.\n\nIts main business was the manufacture of locomotive boilers and locomotives, and for that purpose the assessee had to make purchases of plant and machinery, in various countries including the U.S.A.\n\nThe .. sessee appointed M/s. Tata Inc., New York, as its purchasing agent in the U.S.A.\n\nThe assessee was also the selling agent of Baldwin Locomotive Works, U.S.A., for the sale of their products in India, and the commission payable to the assessee as their sole selling agent was made over to the assessee's purchasing agent in Now York with the sanction of the Reserve Bank and for the purchase of capital goods. This amount was taxed in the relevant assessment years on the accrual basis and the tax was paid. On 16th September 1949, the pound &terlinJI waa devalued and the rate of exchange between rupee and dollar which was Rs. 3.33 per dollar before devaluation, became Rs. 4.775 per dollar thereafter.\n\nOn that date, there was in the as.sessee's account with the purchasing agent a sum of $ 36,123.02 representing the commission received from Baldwin Locomotive Works. With the permission of the Reserve Bank this sum Vias repatriated to India in 1950 and the change in the exchange rate gave rise to a surplus in rupees. The Income-tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal held that this surplus amount was liable to tax.\n\nThe High Court, on a reference, held that the sum was not taxable in the hands of the assessee.\n\nIn appeal to this Court, it was contended that the assessee was liable to tax because; (i) if the commission had been ano, ved to remain in the U.S.A. up to 16th September 1949 anc1 had been repatriated on 17th September, the assessee would have been Hable to tax and therefore the permission of the Reserve Bank and the decision of the assessee to hold it to buy capital goods did not make any difference; and (ii) the fact that the assessee credited the rupee equivalent of the sum in his books and pa:id tax on the basis of accrual did not also make any difference to the\n\nassesee's liabi1ity.\n\nHELD : The High Court was right in deciding in favour of the\n\nassesee. !\n\nThe assessee's liability to tax would depend on whether the act of keeping the money for capital purposes after obtaining the sanction of the Reserve Bank was part of or a trading transaction. The amount no doubt. was a revenue receipt in the assessee's business of commission agency.\n\nBut instead of repatriating it immediately, the assessee obtained the sanction of the Reserve Bank to utilize the commission for buying capital good<;, and that was an independent transaction.\n\nIt was not a\n\nSUP.REMB COURT REPORTS\n\n(1966] 3 S.C . .R.\n\ntrading transaction but was a transaction of accumulating dollars to pay A. for capital goods, the first step to the acquisition of capital goods. If tho assessee had repatriated the amount and then, after obtaining the sanction of the Reserve Bank, remitted it to the U.S.A. any profit made on devaluation would only be a capital profit.\n\nTherefore, the fact that the assesscc kept the money in the U.S.A. did not make any difference under !be circumstances. [241 B-F]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 236 of - B 1965.\n\nAppeal from the judgment and order dated August 30, 1961 of the Bombay High Court in Income-tax Reference No. 12 of 1959.\n\nA. V. Viswanatha Sastri, N. D. Karkhanis, R. H. Dhebar and C R. N. Sachthey, for the appellant.\n\nN. A. Palkiva/a, T. A. Ramaclzandran, J. B. Dadachanji,\n\n0. C. Mathur and Ravinder Narain, for the respondent.\n\nThe Judgment of the Court was delivered by Sikri, J, This appeal hy certificate granted by the High Court of Judicature at Bombay under s. 66-A ( 2) of the Indian Income Tax Act, 1922, hereinafter referred to as the Act, is directed against its judgment in a reference made to it by the Income-Tax Appellate Tribunal. The following two questions were referred :\n\n( l ) Whether on the facts and in the circumstances • of the case, the surplus or difference arising as a result of devaluation in the process of converting dollar currency in regard to the sum of $36,123/02 repatriated to India was profit which was taxable in the hands of the assessee ?\n\n(2) Whether the said sum of $36,123/02 having been taxed in the relevant earlier years, the surplus or difference in dollar exchange account arising by reason of the repatriation thereof as a result of devaluation was rightly taken as profit taxable ?\n\nThe relevant facts and circumstances, as stated in the Statement G\n\nh ' . ,\n\nof the Case, are as follows : The respondent, Tata Locomotive , • and Engineering Co. Ltd., hereinafter referred to as the assessee, is a limited company registered under the Indian Companies Act (VII of 1913), and has it' registered office at Bombay. The main business of the assessee is the manufacture of locomotive. boilers and locomotives. For the purpose of this manufacturing H activity the assessee had to make purchases of plant and machinery, etc., in various countries including the U.S.A.\n\nThe assessee\n\nA appointed M/s Tata Inc., New York, as its purchasing agent in the U.S.A. With the sanction of the Exchange Control Authorities a remittance of $33,830 was made in 1949 to Messrs. Tata Inc., New York for the purpose of purchasing capital goods from the U.S.A. and meeting other expenses connected therewith.\n\nB The assessee was also the selling agent of Baldwin Locomotive Works, for the sale of their products in India, and in connection with the sale of the products of Baldwin Locomotive Works in India the assessee had to incur expenses on their behalf in India. These expenses were re-irnbursed to the assessee by Baldwin Locomotive Works in the U.S.A. by paying the amount c due to Messrs. Tata Inc., New York. The amount so paid to Tata Inc. was retained in the assessee's account with Messrs. Tata Inc. for purchase of capital goods.\n\nAs the sole selling agent the assessee was entitled to commission from Baldwin Locomotive Works. The commission payable to the assessee in dollars was not actually sent from. the D U.S.A. to India, but with the sanction of the Exchange Control Authorities was made over to the assessee's purchasing agents, Messrs. Tata Inc., New York. The reason why this was done was explained in the assessee's letter dated October 26, 1948, to the\n\n. Reserve Bank of India.\n\nIn it the assessee stated, inter alia, as follows:\n\n\"It would be more convenient if the amount of commission payable to us periodically be deposited into our account with our representative, Messrs. Tata Ii.c .. New York, opened with reference to your letter PC.BY. 7031/74/46 dated 2nd October, 1946, as the same would go to reduce the amount of remittance to be made from here in recoupment of that amount from time to time.\n\nThese amounts will be utilised solely for the purposes detailed in our letter to you TC-679 dated 15th August, 1946.\" G The purposes referred to in the said letter of August 15, 1946, were purchase of capital goods.\n\nThe amount received as commission was taxed in the relevant assessment years on the accrual basis and tax has been paid,\n\nOn September 16, 1949, there was a balance of $48,572/30 in the assessee's account with Messrs. Tata Inc. made up as under :\n\nH (I) Remittances from Bombay $33,850·00 Less : Dollars spent in the U.S.A. for capital $30,282 96 purposes\n\n$ 3,567·04\n\nSUPREME COURT\n\nREPORTS\n\n(2) Amount reimbursed by Baldwin Lc:ieo..\n\nmotive Works against funds made ava:Ja. blc to its representatives in India\n\n(3) Commission actually received fron1 Baldwin Locomotive.~ Works and retai.D.-\n\n<d in the U.S.A.\n\nTOTAL\n\n[1966] 3 S €R\n\n$8,882 l4\n\n136,123 02\n\n$48, S12 30\n\nOn September 16, 1949, the pound sterling was devalued. Prior to the devaluation the rate of exchange between rupee and dollar was Rs. 3.330 per dollar and on devaluation the rate became Rs. 4.775 per dollar.\n\nThe result was that the assessee found it more expensive to buy American goods and as the Government of India also imposed some restrictions on imports from the U.S.A., the assessee decided to repatriate the dollars and for the purpose applied to the Reserve Bank of India on December 17,\n\n1949. The Reserve Bank of India gave permission and a sum of $4-0,000 was repatriated to India. Under similar circullllltanccs in October, 1950, a sum of $9,500 was repatriated to India. Though the two remittances from the U.S.A. to India of $40,000 and $9,500 fell into different accounting years, the case proceeded before the Income-tax authorities as well as before the Tribunal on the footing that the two remittances be considered as falling in the accounting year ended March 31, 1950 for the purpose of the appeal before the Tribunal.\n\nThe remittances of $49,500 includes the sum of $48,572/30 that was held by the assessee on September 16, I 949. 11tis repatriation of the sum of $48,572/30 gave rise to a sum of Rs. 70,147 as surplus in the process of converting dollar currency into rupee currency.\n\nThe Income-tax Officer assessed the amount of Rs. 70,147 on the ground that it represented profits that arose to the asseilliec\n\n\"incidentally to its carrying on the business\".\n\nThe Income-tax Officer observed :\n\n\"°\\Wiether the funds were sent to America with the object pf purchasing of capital equipment or for the purchase of stores, or for reimbursement of revenue expenditure there need not be distinction that only such portion of the profits arising on funds remitted for revenue expenditure only has to be treated as revenue and the balance should be treated as capital.\"\n\nThe Appellate Assistant Commissioner substantially affirmed the odrer of the Income-tax Officer except that he reduced\n\n' B\n\nD r\n\n• ••\n\nI H\n\nC. I. T. v. TATA 1.0COMOTIVE CO. (Sikri, J.) 239\n\nA the amount by Rs. 6,894. He was of the view that the permission of the Reserve Bank by itself did not convert the true nature of the amount lying there. He was further of the view that the amounts available for remittance consisting of the commission and the reimbursement of expenses by Baldwin Locomotive Works were acquired in the ordinary course of business of the B sole selling agency of Baldwin Locomotive Works, and, therefore, any exchange profit on such amounts which formed part of the assets employed as circulating capital in trade did arise directly in the course of business and formed part of the trading receipts.\n\nThe Tribunal held that the sums of $3,567 /04 and $8,882/24 C included in the sum of $48,572/30 were held by the assessee for capital purposes and hence any profit that arose to it as a result of its conversion into rupee currency on account of appreciation of the dollar, in relation to the rupee, must be held on capital account and, accordingly, the Tribunal excluded profits attribut- D able to these amounts. But regarding the sum of $36,123/02 the Tribunal held that it would not be justified in coming to the conclusion that there was any constructive remittance, first in the direction the U.S.A. to India and then of an equivalent sum from India to the U.S.A. It further held that \"the amount wrui earned as commission. It was received in dollars and was retained E in that form for the changed purpose under the authority of the Reserve Bank of India. When the Company found that the purpose for which it was to be used failed, viz .• acquisition of capital equipment etc., it requested the Reserve Bank of India to permit it to bring to India, vide assessee's letter dated 17-12-1949 where it sought Reserve Bank's permission to bring $40,000 to India F and referred to in paragraph above. This permission was granted by the Reserve Bank. Dollars were changed into rupees and money received here. Hence before there was actual remittance of $40,000 from the U.S.A. to India, there was reconversion, the purpose having failed, of the sum if there was initial conversion as contended by Mr. Chokshi.\" In the alternative, the Tribunal G held that \"as and when the commission was earned in dollars, the Company did bring it into its account books in the rupee currency at the then prevailing rate of exchange but the commission amount physically remained in the U.S.A. and when occasion arose to bring it physically to India it had to be converted into rupee H currency and this conversion was necessarily incidental to the assessee's business as selling agents of the foreign entity the Baldwins.\n\nHence whatever the profit the Company made on such exchange of the commission earned by it in the course of il•\n\nSUPREME\n\nCOURT REPOllH\n\n[1966] 3 S.C.R.\n\nselling agency bu, iness must be brought to tax as a trading profit A made by it incidentally in the course of that business.\"\n\nThe High Court answered the two questions in the negative.\n\nIt held that although the character of the commission earned was at the inception that of income, but when the assesee appropriated that sum for the specific purpose of purchasing capital goods B with the pem1ission of the Reserve Bank of India, the initial character of this sum underwent a change and it assumed the character of fixed capital of the Company. This character was retained right up to September 16, 1949 when the pound sterling was devalued, and it did not undergo any change till the benefit accrued on this amount to the asscssee company as a result of C change in the exchange rate.\n\nThe High Court further held that \"there is no evidence in this case nor a finding recorded by the Tribunal that the assessee-company had at any time decided not to utilise these amounts for the purpose of purchasing capital goods, and, therefore, repatriated these amounts to India.\" The High Court further held that the sum of $36, 123.02 was \"part of D its fixed capital and remained so till the date it was repatriated to India.\n\nThe surplus or difference arising as a result of dovaluation in the process of converting these dollars into rupee currency in repatriating them to India was an accretion to its fixed capital and was not. therefore, liable to tax.\" The High Court felt that E the ratio of the decision in Davies v. The Shell Company of China(') supported the view it had taken.\n\nThe learned counsel for the revenue, Mr. A. V. Viswanatha Sastri, contends that if the commission had been allowed to remain in the U.S.A. up to September 16, 1949, and it had been F repatriated on September 17, 1949. the assessee would have been liable to tax on the profits received as a result of devaluation.\n\nHe says that if this is so, the permission of the Reserve Bank and the decision of the Company to hold it to buy capital goods does not make any difference.\n\nHe further says that the fact that the assessee credited the rupee equivalent of this sum in his books G and paid tax on the basis of accrual does not also make any difference. The learned counsel for t!t.e assesee, Mr. Palkhiwala, on the other hand contends that the assesseo is not a dealer in foreign exchange and it had not acquired or held foreign exchange for revenue purposes or for purposes incidental to trading operations.\n\nHe says that \"when foreign currency is kept or used. on H capital account e.g. to acquire capital assets, and not as circulat\n\n(I) 221.T.R. Sup. t.\n\nA ing capital, the profit made on realisation is capital appreciation, even though the foreign currency may have been originally acquired as a revenue receipt.\"\n\nA number of cases have been cited before us, but it seems to us that the answer to the questions depends on whether the act of B keeping the money, i.e. $36,123.02 for capital purposes after @btaining the sanction of the Reserve Bank was part of or a trading transaction. If it was part of or a trading transaction then an)' profit that would accrue would be revenue receipt; if it was not part of or a trading transaction then the profit made would be a capital profit and not taxable. There is no doubt that C the amount of $36,123.02 was a revenue receipt in the assessee's business of commission agency. Instead of repatriating it immediately the assessee obtained the sanction of the Reserve Bank to utilise the commission in its business of manufacture of locomotive boilers and locomotives for buying capital goods.\n\nThat wits quite an independent transaction and it is the nature of this D tra_nsaction which has to be determined. In our view it was not a trading transaction in the business of manufacture of locomotive boilers and locomotives; it was clearly a transaction of accumulating dollars to pay for capital goods, the first step to the acquisition of capital goods. If the assessee had repatriated $36,123.02 E and then after obtaining the sanction of the Reserve Bank remitted $36,123.02 to the U.S.A., Mr. Sastri does not contest that any profit made on devaluation would have been a capital profit.\n\nBut, in our opinion, the fact that the assessee kept the money there does not make any difference especially, as we have pointed out, that it was a new transaction which the assessee entered into, F the transaction being the first step to acquisition of capital goods.\n\nIn the view we have taken it is really not necessary to discuss cases cited at the Bar because none of the cases are exactly in point. In our view the High Court was right in answering the questions in the negative. In the result the appeal fails and is G dismissed with costs.\n\nAppeal dismissed.", "total_entities": 52, "entities": [{"text": "H\n\nCOMMISSIONER OF lNCOME-TAtX, BOMBAY CITY", "label": "PETITIONER", "start_char": 2, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF lNCOME-TAX, BOMBAY CITY", "offset_not_found": false}}, {"text": "TATA LOCOMOTIVE & ENGINEERING CO., LTD", "label": "RESPONDENT", "start_char": 50, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "Tata Locomotive , • and Engineering Co. Ltd.", "offset_not_found": false}}, {"text": "K. SUBBA RAO, J", "label": "JUDGE", "start_char": 110, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH ANDS. M. SIKRI, JJ", "label": "JUDGE", "start_char": 126, "end_char": 152, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Bombay", "label": "GPE", "start_char": 431, "end_char": 437, "source": "ner", "metadata": {"in_sentence": "The assessee was a limited company with its registered office _at Bombay."}}, {"text": "U.S.A.", "label": "GPE", "start_char": 632, "end_char": 638, "source": "ner", "metadata": {"in_sentence": "Its main business was the manufacture of locomotive boilers and locomotives, and for that purpose the assessee had to make purchases of plant and machinery, in various countries including the U.S.A.\n\nThe .. sessee appointed M/s. Tata Inc., New York, as its purchasing agent in the U.S.A.\n\nThe assessee was also the selling agent of Baldwin Locomotive Works, U.S.A., for the sale of their products in India, and the commission payable to the assessee as their sole selling agent was made over to the assessee's purchasing agent in Now York with the sanction of the Reserve Bank and for the purchase of capital goods."}}, {"text": "Tata Inc., New York", "label": "ORG", "start_char": 669, "end_char": 688, "source": "ner", "metadata": {"in_sentence": "Its main business was the manufacture of locomotive boilers and locomotives, and for that purpose the assessee had to make purchases of plant and machinery, in various countries including the U.S.A.\n\nThe .. sessee appointed M/s. Tata Inc., New York, as its purchasing agent in the U.S.A.\n\nThe assessee was also the selling agent of Baldwin Locomotive Works, U.S.A., for the sale of their products in India, and the commission payable to the assessee as their sole selling agent was made over to the assessee's purchasing agent in Now York with the sanction of the Reserve Bank and for the purchase of capital goods."}}, {"text": "Baldwin Locomotive Works, U.S.A.", "label": "ORG", "start_char": 772, "end_char": 804, "source": "ner", "metadata": {"in_sentence": "Its main business was the manufacture of locomotive boilers and locomotives, and for that purpose the assessee had to make purchases of plant and machinery, in various countries including the U.S.A.\n\nThe .. sessee appointed M/s. Tata Inc., New York, as its purchasing agent in the U.S.A.\n\nThe assessee was also the selling agent of Baldwin Locomotive Works, U.S.A., for the sale of their products in India, and the commission payable to the assessee as their sole selling agent was made over to the assessee's purchasing agent in Now York with the sanction of the Reserve Bank and for the purchase of capital goods."}}, {"text": "India", "label": "GPE", "start_char": 840, "end_char": 845, "source": "ner", "metadata": {"in_sentence": "Its main business was the manufacture of locomotive boilers and locomotives, and for that purpose the assessee had to make purchases of plant and machinery, in various countries including the U.S.A.\n\nThe .. sessee appointed M/s. Tata Inc., New York, as its purchasing agent in the U.S.A.\n\nThe assessee was also the selling agent of Baldwin Locomotive Works, U.S.A., for the sale of their products in India, and the commission payable to the assessee as their sole selling agent was made over to the assessee's purchasing agent in Now York with the sanction of the Reserve Bank and for the purchase of capital goods."}}, {"text": "Now York", "label": "GPE", "start_char": 970, "end_char": 978, "source": "ner", "metadata": {"in_sentence": "Its main business was the manufacture of locomotive boilers and locomotives, and for that purpose the assessee had to make purchases of plant and machinery, in various countries including the U.S.A.\n\nThe .. sessee appointed M/s. Tata Inc., New York, as its purchasing agent in the U.S.A.\n\nThe assessee was also the selling agent of Baldwin Locomotive Works, U.S.A., for the sale of their products in India, and the commission payable to the assessee as their sole selling agent was made over to the assessee's purchasing agent in Now York with the sanction of the Reserve Bank and for the purchase of capital goods."}}, {"text": "16th September 1949", "label": "DATE", "start_char": 1157, "end_char": 1176, "source": "ner", "metadata": {"in_sentence": "On 16th September 1949, the pound &terlinJI waa devalued and the rate of exchange between rupee and dollar which was Rs."}}, {"text": "Baldwin Locomotive Works", "label": "ORG", "start_char": 1492, "end_char": 1516, "source": "ner", "metadata": {"in_sentence": "On that date, there was in the as.sessee's account with the purchasing agent a sum of $ 36,123.02 representing the commission received from Baldwin Locomotive Works."}}, {"text": "assesee", "label": "JUDGE", "start_char": 2482, "end_char": 2489, "source": "ner", "metadata": {"in_sentence": "In appeal to this Court, it was contended that the assessee was liable to tax because; (i) if the commission had been ano, ved to remain in the U.S.A. up to 16th September 1949 anc1 had been repatriated on 17th September, the assessee would have been Hable to tax and therefore the permission of the Reserve Bank and the decision of the assessee to hold it to buy capital goods did not make any difference; and (ii) the fact that the assessee credited the rupee equivalent of the sum in his books and pa:id tax on the basis of accrual did not also make any difference to the\n\nassesee's liabi1ity."}}, {"text": "U.S.A.", "label": "ORG", "start_char": 3385, "end_char": 3391, "source": "ner", "metadata": {"in_sentence": "If tho assessee had repatriated the amount and then, after obtaining the sanction of the Reserve Bank, remitted it to the U.S.A. any profit made on devaluation would only be a capital profit."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 3716, "end_char": 3733, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and order dated August 30, 1961 of the Bombay High Court in Income-tax Reference No."}}, {"text": "A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 3775, "end_char": 3798, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, N. D. Karkhanis, R. H. Dhebar and C R. N. Sachthey, for the appellant.", "canonical_name": "A. V. Viswanatha Sastri"}}, {"text": "N. D. Karkhanis", "label": "LAWYER", "start_char": 3800, "end_char": 3815, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, N. D. Karkhanis, R. H. Dhebar and C R. N. Sachthey, for the appellant."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 3817, "end_char": 3829, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, N. D. Karkhanis, R. H. Dhebar and C R. N. Sachthey, for the appellant."}}, {"text": "C R. N. Sachthey", "label": "LAWYER", "start_char": 3834, "end_char": 3850, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, N. D. Karkhanis, R. H. Dhebar and C R. N. Sachthey, for the appellant."}}, {"text": "N. A. Palkiva", "label": "OTHER_PERSON", "start_char": 3872, "end_char": 3885, "source": "ner", "metadata": {"in_sentence": "N. A. Palkiva/a, T. A. Ramaclzandran, J. B. Dadachanji,\n\n0."}}, {"text": "T. A. Ramaclzandran", "label": "JUDGE", "start_char": 3889, "end_char": 3908, "source": "ner", "metadata": {"in_sentence": "N. A. Palkiva/a, T. A. Ramaclzandran, J. B. Dadachanji,\n\n0."}}, {"text": "B. Dadachanji", "label": "JUDGE", "start_char": 3913, "end_char": 3926, "source": "ner", "metadata": {"in_sentence": "N. A. Palkiva/a, T. A. Ramaclzandran, J. B. Dadachanji,\n\n0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 3932, "end_char": 3941, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the respondent."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 3946, "end_char": 3961, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the respondent."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 4027, "end_char": 4032, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sikri, J, This appeal hy certificate granted by the High Court of Judicature at Bombay under s. 66-A ( 2) of the Indian Income Tax Act, 1922, hereinafter referred to as the Act, is directed against its judgment in a reference made to it by the Income-Tax Appellate Tribunal."}}, {"text": "High Court of Judicature at Bombay", "label": "COURT", "start_char": 4079, "end_char": 4113, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sikri, J, This appeal hy certificate granted by the High Court of Judicature at Bombay under s. 66-A ( 2) of the Indian Income Tax Act, 1922, hereinafter referred to as the Act, is directed against its judgment in a reference made to it by the Income-Tax Appellate Tribunal."}}, {"text": "s. 66", "label": "PROVISION", "start_char": 4120, "end_char": 4125, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 4140, "end_char": 4167, "source": "regex", "metadata": {}}, {"text": "Tata Locomotive , • and Engineering Co. Ltd.", "label": "RESPONDENT", "start_char": 5013, "end_char": 5057, "source": "ner", "metadata": {"in_sentence": "of the Case, are as follows : The respondent, Tata Locomotive , • and Engineering Co. Ltd., hereinafter referred to as the assessee, is a limited company registered under the Indian Companies Act (VII of 1913), and has it' registered office at Bombay.", "canonical_name": "Tata Locomotive , • and Engineering Co. Ltd."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 5149, "end_char": 5162, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Tata Inc.", "label": "ORG", "start_char": 5499, "end_char": 5508, "source": "ner", "metadata": {"in_sentence": "in various countries including the U.S.A.\n\nThe assessee\n\nA appointed M/s Tata Inc., New York, as its purchasing agent in the U.S.A. With the sanction of the Exchange Control Authorities a remittance of $33,830 was made in 1949 to Messrs. Tata Inc., New York for the purpose of purchasing capital goods from the U.S.A. and meeting other expenses connected therewith."}}, {"text": "New York", "label": "GPE", "start_char": 5510, "end_char": 5518, "source": "ner", "metadata": {"in_sentence": "in various countries including the U.S.A.\n\nThe assessee\n\nA appointed M/s Tata Inc., New York, as its purchasing agent in the U.S.A. With the sanction of the Exchange Control Authorities a remittance of $33,830 was made in 1949 to Messrs. Tata Inc., New York for the purpose of purchasing capital goods from the U.S.A. and meeting other expenses connected therewith."}}, {"text": "October 26, 1948", "label": "DATE", "start_char": 6737, "end_char": 6753, "source": "ner", "metadata": {"in_sentence": "The reason why this was done was explained in the assessee's letter dated October 26, 1948, to the\n\n."}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 6765, "end_char": 6786, "source": "ner", "metadata": {"in_sentence": "Reserve Bank of India."}}, {"text": "Tata Ii.c .. New York", "label": "ORG", "start_char": 6988, "end_char": 7009, "source": "ner", "metadata": {"in_sentence": "In it the assessee stated, inter alia, as follows:\n\n\"It would be more convenient if the amount of commission payable to us periodically be deposited into our account with our representative, Messrs. Tata Ii.c .. New York, opened with reference to your letter PC.BY."}}, {"text": "2nd October, 1946", "label": "DATE", "start_char": 7072, "end_char": 7089, "source": "ner", "metadata": {"in_sentence": "7031/74/46 dated 2nd October, 1946, as the same would go to reduce the amount of remittance to be made from here in recoupment of that amount from time to time."}}, {"text": "15th August, 1946", "label": "DATE", "start_char": 7315, "end_char": 7332, "source": "ner", "metadata": {"in_sentence": "These amounts will be utilised solely for the purposes detailed in our letter to you TC-679 dated 15th August, 1946.\""}}, {"text": "August 15, 1946", "label": "DATE", "start_char": 7384, "end_char": 7399, "source": "ner", "metadata": {"in_sentence": "G The purposes referred to in the said letter of August 15, 1946, were purchase of capital goods."}}, {"text": "September 16, 1949", "label": "DATE", "start_char": 7559, "end_char": 7577, "source": "ner", "metadata": {"in_sentence": "The amount received as commission was taxed in the relevant assessment years on the accrual basis and tax has been paid,\n\nOn September 16, 1949, there was a balance of $48,572/30 in the assessee's account with Messrs. Tata Inc. made up as under :\n\nH (I) Remittances from Bombay $33,850·00 Less : Dollars spent in the U.S.A. for capital $30,282 96 purposes\n\n$ 3,567·04\n\nSUPREME COURT\n\nREPORTS\n\n(2) Amount reimbursed by Baldwin Lc:ieo..\n\nmotive Works against funds made ava:Ja."}}, {"text": "S12", "label": "PROVISION", "start_char": 8096, "end_char": 8099, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India", "label": "ORG", "start_char": 8404, "end_char": 8423, "source": "ner", "metadata": {"in_sentence": "The result was that the assessee found it more expensive to buy American goods and as the Government of India also imposed some restrictions on imports from the U.S.A., the assessee decided to repatriate the dollars and for the purpose applied to the Reserve Bank of India on December 17,\n\n1949."}}, {"text": "December 17,\n\n1949", "label": "DATE", "start_char": 8590, "end_char": 8608, "source": "ner", "metadata": {"in_sentence": "The result was that the assessee found it more expensive to buy American goods and as the Government of India also imposed some restrictions on imports from the U.S.A., the assessee decided to repatriate the dollars and for the purpose applied to the Reserve Bank of India on December 17,\n\n1949."}}, {"text": "March 31, 1950", "label": "DATE", "start_char": 9081, "end_char": 9095, "source": "ner", "metadata": {"in_sentence": "Though the two remittances from the U.S.A. to India of $40,000 and $9,500 fell into different accounting years, the case proceeded before the Income-tax authorities as well as before the Tribunal on the footing that the two remittances be considered as falling in the accounting year ended March 31, 1950 for the purpose of the appeal before the Tribunal."}}, {"text": "September 16, I 949", "label": "DATE", "start_char": 9239, "end_char": 9258, "source": "ner", "metadata": {"in_sentence": "The remittances of $49,500 includes the sum of $48,572/30 that was held by the assessee on September 16, I 949."}}, {"text": "America", "label": "GPE", "start_char": 9662, "end_char": 9669, "source": "ner", "metadata": {"in_sentence": "The Income-tax Officer observed :\n\n\"°\\Wiether the funds were sent to America with the object pf purchasing of capital equipment or for the purchase of stores, or for reimbursement of revenue expenditure there need not be distinction that only such portion of the profits arising on funds remitted for revenue expenditure only has to be treated as revenue and the balance should be treated as capital.\""}}, {"text": "17-12-1949", "label": "DATE", "start_char": 11905, "end_char": 11915, "source": "ner", "metadata": {"in_sentence": "it requested the Reserve Bank of India to permit it to bring to India, vide assessee's letter dated 17-12-1949 where it sought Reserve Bank's permission to bring $40,000 to India F and referred to in paragraph above."}}, {"text": "Reserve Bank", "label": "ORG", "start_char": 11932, "end_char": 11944, "source": "ner", "metadata": {"in_sentence": "it requested the Reserve Bank of India to permit it to bring to India, vide assessee's letter dated 17-12-1949 where it sought Reserve Bank's permission to bring $40,000 to India F and referred to in paragraph above."}}, {"text": "Chokshi", "label": "OTHER_PERSON", "start_char": 12321, "end_char": 12328, "source": "ner", "metadata": {"in_sentence": "Hence before there was actual remittance of $40,000 from the U.S.A. to India, there was reconversion, the purpose having failed, of the sum if there was initial conversion as contended by Mr. Chokshi.\""}}, {"text": "A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 14608, "end_char": 14631, "source": "ner", "metadata": {"in_sentence": "The learned counsel for the revenue, Mr. A. V. Viswanatha Sastri, contends that if the commission had been allowed to remain in the U.S.A. up to September 16, 1949, and it had been F repatriated on September 17, 1949.", "canonical_name": "A. V. Viswanatha Sastri"}}, {"text": "September 17, 1949", "label": "DATE", "start_char": 14765, "end_char": 14783, "source": "ner", "metadata": {"in_sentence": "The learned counsel for the revenue, Mr. A. V. Viswanatha Sastri, contends that if the commission had been allowed to remain in the U.S.A. up to September 16, 1949, and it had been F repatriated on September 17, 1949."}}, {"text": "Palkhiwala", "label": "OTHER_PERSON", "start_char": 15259, "end_char": 15269, "source": "ner", "metadata": {"in_sentence": "The learned counsel for t!t.e assesee, Mr. Palkhiwala, on the other hand contends that the assesseo is not a dealer in foreign exchange and it had not acquired or held foreign exchange for revenue purposes or for purposes incidental to trading operations."}}, {"text": "Sastri", "label": "OTHER_PERSON", "start_char": 17111, "end_char": 17117, "source": "ner", "metadata": {"in_sentence": "If the assessee had repatriated $36,123.02 E and then after obtaining the sanction of the Reserve Bank remitted $36,123.02 to the U.S.A., Mr. Sastri does not contest that any profit made on devaluation would have been a capital profit."}}]}
{"document_id": "1966_3_242_274_EN", "year": 1966, "text": "SASTRI Y AGNAPURUSHADJI AND OTHERS v.\n\nMULDAS BHUDARDAS V AISllY A AND AN0111ER\n\nJanuary 14, 1966\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,\n\nM. HIDAYATULLAH, V. RAMASWAMI AND\n\nP. SATYANARAYANA RAJU, JJ.)\n\nBon1bay Jlb1du Places of l'ublic lVorsliip (Entry A11rhorisa1io11) Act (31 of 1956), s._ 3-Valldity.\n\nHindu-Who is.\n\nl'racticL\"--VakalaJrhw1a in fa\\'Ollr of lln Advocate-J>rr.cnf(Jtion of apptal by another ad1ocare working in his clzambers-Jf \\'a/id presentation.\n\n'The appellants, who are the followers of the Swaminarayan sect and known at Satsanjlis, filed a repre\\Cntative suit: (i) for a d.claiallon that the relevant provisions of the Bombay Harijan Temple Entry Act, 1947, as amended by Act 77 of 1948, did not apply to their tcn1plcs. because, the religion of the Swaminarayan sect was dLStinct and different from Hindu religion and becaue. ihc relevant provisions of the Act, \\l..'Cre ultru , irer; and (ii) for an injunc1ion restraining the Isl respondent and other non- Satsangi Harijan~ from entering the S\\vaminarayan temple.\n\nThe Trial Court decreed the suit.\n\nPending the !st respondent's appeal in tho Hi&h Court, the Bombay Hindu Places of Public Worship (Entry Au:hori•ation)\n\nAct, 1956, was passed, and since theh 1947 Act gave place to the 1956 Act, it became necessary 10 con!iider whether the 1956 Act \\\\'as intra \\lirts.\n\nThe High Court allowed the appeal and dismi<Sed the suit holding that\n\nthe followers of the Sv.aminarayan sect pro(es!-'.ed Hindu relig:on and thal\n\nthe Act or 1956 \\\\.'3S constitutionally vatto.\n\nJn appeal to thi> Court it was contended that: (i) the Hih Court erred in treating the lsi respondent's appeal as competent 1,1, hen the \\akaiatnama filed on his behalf \\Vas invalid (ii) s. 3 of the 1956 Act v.as ultra vires as it cont:avened Art. 26(b) of the Con .. titu'ion; and (iii) the religion of the Swaminarayan sect was distinct and separate from Hindu religion and that therefore the temples belonging to that sect did not fall within the ambit of the 1956 Act.\n\nHELD: (i) The appeal to the High Court was properly pre-cnted.\n\nTechnically the memorandum of appeal presented by the Assistant Go.,., mmcnt Pleader on behalf of the !st respondent suffered from ao infirmity, because, the 1st respondent signed the vakalatnama in favour of the Government Pleader. But. since tho Registry had not returned the appeal for correcfing the irregularity, and since r. 95 of the A\\ll'ellate Side Rules of the High Court authorises an advocate to appear even without initially filing a vakalatnama. the High Court was right in allowing the Government Pleader to sign the memorandum of appeal and the vaka- Iatnama, in order to remove the irregularity. (251 E-G; 252 A-CJ\n\n(ii) There is no substance in the contention that s. 3 contra\\'Cnes Art. 26(h) or the Constitution and i• therefore ultra vi\"'\n\n.. ..\n\n.. . •\n\n' B\n\nYAGNAPURUSHADJI V. MULDAS 243\n\nThe right to enter temples which bas been vouchsafed to the H.arijans by the impugned Ac_t. in substance symbolises he. nt of Han1ans to enjoy all social ame01t1!\"' and nghts, for, social .Justice IS the. main foundation of the democratic way of hfe eoshnned m the prov1S1ons of the Indian CorISlitution. Aft.er the Constitution came into force, the whole social and religious outlook of the Hindu community has undergone a fundamental change as a result of the message of social. eq':'\"lity and justice proclaimed by the .CorIStitution; and the solem~ prolllise m Art. 17, abolishing untouchab1hty has been gradually, but mes1stibly enforced by tho proceiss of law assisted by enlightened public conscience. All that s. 3 of the 1956 Act purports to do is to give the Harijans the same right to enter tho temple for darshan of the deity as can be claimed by the other Hindus.\n\nThe act of actual worship of the diety is allowed to be performed onl)'. by the authorised poojaris of the temple and by no other devotee entering the temple for darslum.\n\nTherefore, it was nont int.entled to invade the tradition and conventional manner of performing the actual worship of the idol.\n\n(iii) The High O>urt was right in coming to the conclusion that the religion of the Swaminarayan sect is not distinct and separate from Hindu religion. and corISequently, tho temples belonging to the sect did fall within the ambit of s. 2 of the Act.\n\nThe Indian mind has consistently through the ages, been exercised over the problem of the nature of godhead, the problem that faces the spirit at the end of life, and the interrelation between the individual and the universal soul. According to Hindu religion the ultimato eoal of humanity is release and freedom from the unceasing cycle of births and rebirths and a state of absorption and assimilation of the individual soul with the infinite. On the meal!S to attain this end there is a great divergence of views; some emphasise the importance of Gyana, while others extol the virtue of Bhakti or devotion, and yet others insist upon the paramount importance of the performance of duties with a heart full ol devotion and in mind irISpired by knowledge.\n\nNaturally it was realised by Hindu religion from the very beginning of its career that truth was many-sided and different views contained different aspects of truth which no one could fully express.\n\nThis know1edge inevitably bred a spirit of tolerance and willingnc<;; s to understand and appreciate the opponent's point of view.\n\nBecause of this broad sweep of Hindu philosophic concepts under Hindu philosophy, there is no scope for excommunicating any notion or principle as heretical and rejecting it as such.\n\nThe development of Hindu religion and philosophy shows that from time to time saints and religious reformers attempted to remove from Hindu thought and practices, elements of corruption and superstition, and revolted against the dominance of rituals and the power of the priestly class with which it came to be associated; and that led to the formation of different sects. In the teaching of these saintns and religious reformers is noticeable a certain amount of divergence in their respective views; but underneath that divergence lie certain broad concepts which can bo treated as basic, and there is a kind of subtle indescribable unity which keeps them within the sweep of broad and progressive Hindu religion.\n\nThe first among these basic concepts is the acceptance of the Vedas as the highest authority in refigious and philosophic matters. This concept necessarily implies that all the systems claim to have drawn their principles from a common reservoir of thought enshrined in the Vedas. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not wor.; hip any one God; it does not subscribe to any one dogma; it do':S\n\nnot believe in any one philosophic concept; it doe~ not follow any one act ol. rclrgious rites or performances; in fact, it does not atisfy the traditional features of a religion or creed. It is a way of life and nothing more.\n\nThe Conslitution-makers were fully conscious of the broad and comprehensive character of Hindu religion; an<l \\\\'hilc guaran1ecing the fundan1cntal right to freedom of religion n1adc it clear that reference to Hindus sbaJl be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion.\n\nPhilosophically, Swaminarayan was a follower of Ramanuja and the essence of his teachings.is acceptance of the Vedas \\Vith reverence, recognition of the fact that the path of Blwkti or devotion leads to Mohlza. insistence or demtion to Lord Krishna and a determination to remove corrupt practice3 and restore Hindu Religion to its original glory and purity.\n\nThis shows unambiguously and unequivocally that Swaminarayan\n\nwas a Hindu saint. Further, the facts that initiation is necessary to become a Satsangi, that persons of other religions could join the sect by initia- C tion without any process of proselylisiog on such occasions, and that Swaminarayan himself is treated as a God, are not inconsistent with the basic Hindu religious and philosophic theory.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. s 17 of 1964.\n\nAppeal from the judgment and decree, dated October 3, 1958 of the Bombay High Court in First Appeal No. 107 of 52.\n\nVasant I. Desai, M. L. Bha/ja and A.G. Ratnaparkhi, for the appellants.\n\nC. K. Daphtary, Attorney-Genera/, Atiqur Rehman and K. L.\n\nHathi, for respondent No. I.\n\nC. K. Daphtary, Attorney-Genera/, N. S. Bindra and B. R. G. K.\n\nAchar, for respondent No. 2.\n\nS. V. Gupte, Solicitor-General, and B. R. G. K. Achar, for the intervener.\n\nThe Judgment of the Court was delivered by\n\nGajendrnJ!lldkar, C.J. The principal question which arises\n\nin this appeal is whether the Bombay High Court was right in holding that the Swaminarayan Sampradaya (sect) to which the appellants belong, is not a religion distinct and separate from the G Hindu religion, and that the temples belonging to the said sect do come within the ambit of the provisions of the Bombay Hindu Places of Public Worship (Entry-Authorisation) Act, 1956 (No. 31 of 1956) (hereinafter called 'the Act'). The suit from which the present appeal arises was instituted by the appellants on the 12th January, 1948, in the Court of the Joint Civil Judge, H Senior Division, Ahmedabad.\n\nBefore the suit was instituted, the Bombay Harijan Temple Entry Act, 1947 (No. 35 of 1947)\n\n• .\n\n(Hereinafter called 'the former Act') had come into force on the 23rd November, 1947.\n\nThe appellants are the followers of the Swaminarayan sect, and are known as Satsangis.\n\nThey have filed the present suit on behalf of themselves and on behalf of the Satsangis of the Northern Diocese of the sect at Ahmedabad.\n\nThey apprehended that respondent No. 1, Muldas Bhudardas B Vaishya, who is the President of the Maha Gujarat Dalit Sangh\n\nat Ahmedabad, intended to assert the rights of the non-Satsangi Harijans to enter the temples of the Swaminarayan sect situated in the Northern Diocese at Ahmedabad in exercise of the legal rights conferred on them by s. 3 of the former Act of 1947. c\n\nSection 3 of the said Act had provided, inter alia, that every temple to which the Act applied shall be open to Harijans for worship in the same manner and to the same extent as other Hindus in general.\n\nTo this suit the appellants had impleaded five other respondents, amongst whom was included the Province of Bombay as respondent No. 4, under the order of the Court at a later stage of the proceedings on the 18th July, 1949.\n\nIn their plaint, the appellants had alleged that the Swaminarayan temple of Sree Nar Narayan Dev of Ahmedabad and all the temples subordinate thereto are not temples within the meaning of the former Act.\n\nTheir case was that the Swaminarayan sect represents a distinct and separate religious sect unconnected with the Hindus and Hindu religion, and as such, their temples were • outside the purview of the said Act.\n\nOn the basis of this main allegation, the appellants claimed a declaration to the effect that the relevant provisions of the said Act did not apply to their temples.\n\nIn the alternative, it 'ltas urged that the said Act was ultra vires.\n\nAs a consequence of these two declarations, the appellants asked for an injunction restraining respondent No. 1 and other non-Satsangi Harijans from entering the Swaminarayan temple of the Northern Diocese of the Swaminarayan sect; and they prayed that an appropriate injunction should be issued directing respondents 2 and 3 who are the Mahants of the said temples to take steps to prevent respondent No. 1 and the other non-Satsangi Harijans from entering and worshipping in the said temples.\n\nPending these proceedings between the parties, the former Act was amended by Bombay Act No. 77 of 1948; and later, the Constitution of India came into force on the 26th January, 1950.\n\nH As a result of these events, the appellants applied for an amendment of the plaint on the 30th November, 1950, and the said application was granted by the learned trial Judge.\n\nIn consequence of\n\n24 f; St \"PRD1E COURT\n\nREPORTS\n\n[1966] 3 SC R\n\nthis amendment, the appellants took the plea that their temples were not temples within the meaning of the former Act as amended by Act No. 77 of 1948; and they urged that the former Act was ultra vires the powers of the State of Bombav inasmuch as it was inconsistent with the Constitution and the fndamental rights guaranteed therein.\n\nIt was contended by them that the Swaminarayan sect was an institution distinct and different from Hindu religion, and, therefore, the former Act as amended could not apply to or affect the temples of the said sect.\n\nOn this additional ground, the appellants supported the original claim for declarations and injunctions made by them in their plaint a> it was originally filed.\n\nThis suit was resisted by respondent No. 1.\n\nIt was urged on his behalf that the suit was not tenable at law, on the ground that the Court had no jurisdiction to entertain the suit under s. 5 of the fonncr Act.\n\nRespondent No. I disputed the appellants right to represent the Satsangis of the Swaminarayan sect, and he averred that many Satsangis were in favour of the Harijans' entry into the Swaminarayan temples, even though such Harijans\n\nwere not the followers of the Swaminarayan sect.\n\nAccording to him, the suit temples were temptcs within the meaning of the former Act as amended and that non-Satsangi Harijans had a legal right of entry and worship in the said temples. The appelants' case that the fom1er Act was ultra virs. was also challenged by respondent No. !.\n\nRespondents 2 and 3, the Mahants of the temples, filed purshis that they did not object to the appellants' claim, while respondent No. 4. the State of Bombay, and respondents 5 and 6 filed no written stafements.\n\nOn these pleadings, the learned trial Judge framed several issues, and parties led voluminous documentary and oral evidence in support of their respective contentions.\n\nAfter considering this evidence, the learned trial Judge held that the suit was maintainable and was not barred under s. 5 of the former Act.\n\nHe found that the fonner Act was intra vires the legislative powers of the Bombay State and did not infringe any fundamental rights of the appellants.\n\nAccording to him, the Swarninarayan sect was not distinct and different from Hindu religion and as such, the suit temples were temples which were used as places of religious worship by the congregation of the Satsang which formed a section of the Hindu community. 111e learned trial Judge, however, came to the conclusion that it had not been established that the suit temples were used by non-Satsangi Hindus as places of religious worship by custom, usage or otherwise, and consequently, they did not\n\n•11 \\ l\n\ncome within the meaning of the word \"temple\" as defined by the former Act.\n\nThus, the conclusion of the learned trial Judge on this part of the appellants' case decided the fate of the suit in their favour, though findings were recorded by the trial Judge in favour of respondent No. 1 on the other issues.\n\nIn the result, the trial court passed a decree in favour of the appellants giving them declarations and injunctions as claimed by them.\n\nThis judgment was pronounced on the 24th September, 1951.\n\nThe proceedings in the trial court were protracted and lasted for nearly three years, because interim proceedings which Jed to certain interlocutory orders, were contested between the parties and were taken to the High Court on two occasions before the suit was finally determined.\n\nThe decision of the trial court on the merits was challenged by Respondent No. 4 and respondent No. 1 who joined in filing the appeal.\n\nThe appeal thus presented by the two respondents was heard by the High Court on the 8th March, 1957. At this D hearing, two preliminary objections were raised by the appellants against the. competence and maintainability of the appeal itself.\n\nIt was urged that the appeal preferred by respondent No. 4 was not competent inasmuch as respondent No. 4 had no locus standi to prefer the appeal in view of the fact that the former Act in the validity of which respondent No. 4 was vitally interested had E been held to be valid. This objection was upheld and the appeal preferred by respondent No. 4 was dismissed.\n\nIn regard to the appeal preferred by respondent No. l, the appellants contended that the Vakalatnama filed on his behalf was invalid and as such, the appeal purported to have been pre- F ferred on his behalf was incompetent. It appears that respondent No. 1 had authorised the Government Pleader to file an appeal on his behalf, whereas the appeal had actually been filed by Mr.\n\nDaundkar who was then the Assistant Government Pleader. The High Court rejected this objection and held that the technical irregularity on which the objection was founded could be cured G by allowing the Government Pleader to sign the memorandum of appeal presented on behalf of respondent No. 1 and endorse acceptance of his Vakalatnama.\n\nHaving thus held that the appeal preferred by respondent No. 1 was competent, the High Court proceeded to consider the merits H of the said appeal.\n\nIt was urged before the High Court by respondent No. 1 that the declarations and injunctions granted to the appellants could not be allowed to stand in view of the Untouch- IOSup.Cl/63-3\n\nSUPRBM! COURT\n\nREPORTS\n\n[1966) 3 S.C.R.\n\nability (Offences) Act, 1955 (Central Act 22 of 1955) which had come into force on the 8th May, 1955 and which had repealed the former Act.\n\nThis contention did not find favour with the High Court, because it took the view that the decl:irations and injunctions granted by the trial court were not based en the provisions of the former Act, but were based on the view that the rights of the appellants were not affected by the said Act.\n\nThe High Court observed that in dealing with the objections raised by respondent No. 1, it was unnecessary to consider whether on the merits, the view taken by the trial court was right or not.\n\nThe only point which was relevant for disposing of the said objectiol! was to consider whether any relief had been granted to the appellants under the provisions of the former Act or not; and since the reliefs granted to the appellants were not under any of the said provisions, but were in fact based on the view that the provisions of the said Act did not apply to the temples in suit, it could not be said that the said reliefs could not survive the passing of the Untouchability (Offences) Act, 1955. The Higb Ccurt, however, noticed that after the trial court pronounced its judgments, the Bombay Legislature had passed the Act (No. 31 of 1956) and respondent No. 1 naturally relied upon the material provisions of this Act contained in s. 3.\n\nThus, though the substance of the controversy between the parties remained the same, the field of the dispute was radically altered.\n\nTh former Act had given place to the Act and it now became necessary to consider whether the Act was intra vires, and if yes, whether it applied to the temples in suit.\n\nHavi1,1g regard to this altered position, the High Court took the view that it was necessary to issue a notice to the Advocate-General under 0.27 A of the Code of Civil Procedure.\n\nAccordingly, a notice was issued to the Advocate- General and the appeal was placed before the High Court on the 25th March, 1957 again.\n\nAt this hearing, the High Court sent the case back to the trial court for recording a finding on the issue\n\n\"whether the Swaminarayan temple at Ahmedabad and the temples subordinate thereto are Hindu religious institutions within the meaning of Art. 25(2) (b) of the Constitution\".\n\nBoth parties were allowed liberty to lead additional evidence on this issue.\n\nAfter remand, the appellants did not lead any oral evidence, but respondent No. 1 examined two witnesses Venibhai and Kcshavlal.\n\nKeshavlal failed to appear for his final cross examination despite adjournments even thougb the trial court had appointed a Commission to record his evidence. Nothing, however, turned upon this oral evidence. In the remand proceedings,\n\n' .\n\nYAGNAPURUSHADJI V. MULDAS (Ga; endragadkar, C.l.) 249\n\nA it was not disputed before the trial court that the temples in suit were public religious institutions.\n\nThe only question which was argued before the court was whether they could be regarded as Hindu temples or not.\n\nThe appellants contended that the suit temples were meant exclusively for the followers of the Swaminarayan sect; and these followers, it was urged, did not profess B the Hindu religion. The learned trial Judge, however, adhered to the view already expressed by hls predecessor before remand that the congregation of Satsang constituted a section of the Hindu community; and so he found that it was not open to the appellants to contend before rum that the followers of the Swaminarayan sect c were not a section of the Hindu community.\n\nIn regard to the nature of the temples, the learned trial Judge considered the evidence adduced on the record by both the parties and came to the conclusion that the Swaminarayan temples at Ahmedabad and the temples subordinate thereto were Hindu religious institutions within the meaning of Art. 25(2) (b) of the Constitution. This D finding was recorded by the trial Judge on the 24th March 1958.\n\nAfter this finding was Sl)bmitted by th\" learned trial Judge to the High Court, the Appeal was taken up for final disposal.\n\nOn this occasion, it was urged before the High Court on behalf of the appellants that the members belonging to the Swaminarayan E sect did not profess the Hindu religion and, therefore, their temples could not be said to be Hindu temples.\n\nIt was, however, conceded on their behalf that in case the High Court came to the conclusion that the Swaminarayan sect was not a different religion from Hinduism, the conclusion could not be resisted that the temples in suit would be Hindu religious institutions and also F places of public worship within the me-aning of s. 2 of the Act.\n\nThat is how the main question which was elaborately argued before the High Court was whether the followers of the Swaminarayan sect could be said to profess Hindu religion and be regarded as Hindus or not.\n\nIt was urged by the appellants that the Satsangis who worship at the Swaminarayan temple may be (; Hindus for cultural and social purposes, but they are not persons professing Hindu religion, and as such they do not form a section, class or sect or denomination of Hindu religion. Broadly stated, the case for the appellants was placed before the High Court on four grounds.\n\nIt was argued that Swaminarayan, the founder of the sect, considered himself as the Supreme God, and as such, the H sect that believes in the divinity of Swaminarayan cannot be assimilated to the followers of Hindu religion.\n\nIt was also urged that the temples in snit had been established for the worship of\n\nSwaminarayan himself and not for the worship of the traditional A Hindu idols, and that again showed that the Satsangi sect was\n\ndtinct and separate from Hindu religion.\n\nIt was funher contonded that the sect propagated the ideal that worship of any God other than Swaminarayan would be a betrayal of his faith, and lastly, that the Acharyas who had ben appointed by Swaminarayan adopted a procedure of \"Initiation\" ( diksha) which B showed that on initiation, the devotee became a Satsangi and\n\naumed a distinct and separate character as a follower of the sect.\n\nThe High Coun has carefully examined these contentions in the light of the teachings of Swaminarayan, and has come to the C conclusion that it was impossible to hold that the followers of the Swaminarayan sect did not profess Hindu religion and did not form a pan of the Hindu community.\n\nIn coming to this conclusion, the High Court has also examined the oral evidence on which the parties relied.\n\nWhile considering this aspect of the matter, the High Court took into account the fact that in their D plaint itself, the appellants had described themselves as Hindus and that on the occasion of previous censuses prior to 1951 when religion and community used to be indicated in distinct columns in the treatment of census data, the followers of the sect raised no objection to their being described as belonging to a sect pro- E fessing Hindu religion.\n\nHaving thus rejected the main contention raised by the appellants in challenging their status as Hindus, the High Court examined the alternative argument which was urged on their behalf in regard to the constitutional validity of the Act.\n\nThe argument was that the material provision of the Act was inconsistent with the fundamental rights guaranteed by Articles 25 and 26 of the Constitution and as such was invalid.\n\nThe High Court did not feel impressed by this argument and felt no difficulty in rejecting it.\n\nIn the result, the finding recorded by the trial Judge\n\nin favour of the appellants in regard to their status and character G as followers of the Swaminarayan sect was upheld; inevitably the decree passed by the trial Judge was vacated and the suit instituted by the appellants was ordered to be dismised. It is against this decree that the present appeal has been brought to this Court on a certificate issued by the High Court.\n\nBefore dealing with the principal point which has been posed 11 at the commencement of this Judgment, it is necessary to dispose of two minor contentions raised by Mr. V. J. Desai who appeared\n\nA for the appellants before us.\n\nMr.· Desai contends that the High Court was in error in treating as competent the appeal preferred by respondent No. 1.\n\nHis case is that since the said appeal had not been duly and validly filed by an Advocate authorised by respondent No. 1 in that behalf, the High Court should have dismissed the said appeal as being incompetent.\n\nIt will be recalled B that the appeal memo as well as the Vakalatnama filed along with it were signed by Mr. Daundkar who was then the Asst!. Government Pleader; and the argument is that since the Vakalatnama had been signed by respondent No. 1 in favour of the Government Pleader, its acceptance by the Assistant Government Pleader was invalid and that rendered the presentation of the appeal by the C Assistant Government Pleader on behalf of respondent No. 1 incompetent. 0.41, r. 1 of the Code of Civil Procedure requires, inter alia, that every appeal shall be preferred in the form of a memorandum signed by the appellant or his Pleader and presented to the Court or to such officer as it appoints in that behalf.\n\n0. 3, r. 4 of the Code relates to the appointment of a Pleader.\n\nSub-r. (I) of the said Rule provides, inter alia that no Pleader shall act for any person in any court unless he has been appointed for the purpose by such person by a document in writing signed by such person.\n\nSub-r. (2) adds that every such appointment shall be filed in court and shall be deemed to be in force until\n\ndetermined with the leave of the Court in the manner indicated by it.\n\nTechnically, it may be conceded that the memorandum of appeal presented by Mr. Daundkar suffered from the infirmity that respondent No. I had signed his Vakalatnama in favour of the Government Pleader and Mr. Daundkar could not have accepted it, though he was working in the Government Pleader's office as an Assistant Government Pleader.\n\nEven so, the said memo was accepted by the office of the Registrar of the Appellate Side of the High Court, because the Registry regarded the presentation of the appeal to be proper, the appeal was in due course admitted and it finally came up for hearing before the High Court.\n\nThe failure of the Registry to invite the attention of the Assistant Government .Pleader to the irregularity committed in the presentation of the said appeal cannot be said to be irrelevant in dealing with the validity of the contention raised by the appellants. If the Registry had returned the appeal to Mr. Daundkar as irregularly presented, the irregularity could have been immediately corrected and the Government Pleader would have signed both the memo of appeal and the Vakalatnama.\n\nIt is an elementary rule of justice that no party should suffer for the mistake of the court or its office.\n\nBesides, one of the rules fq1med by the High Court\n\non its Appellate Side-Rule 95-seems to authorise an Advocate A practising on the Appellate Side of the High Court to appear even\n\nwithout initially filing a Vakalatnama in that behalf. If an appeal is presented by an Advocate without a Vakalatnama duly signed by the appellant, he is required to produce the Vakalatnama authorising him to present the appeal or to file a statement signed B by himself that such V akalatnama has been duly signed by the appellant in time.\n\nIn this case, the Vakalatnama had evidently been signed by respondent No. 1 in favour of the Government Pleader in time; and so, the High Court was plainly right in allowing the Government Pleader to sign the memo of appeal and the Vakalatnama in order to remove the irregularity committed in the presentation of the appeal.\n\nWe do not think that Mr. Desai is justified in contending that the High Court was in error in overruling the objection raised by the appellants before it that the appeal preferred by respondent No. 1 was incompetent. ..\n\nThe next contention which Mr. Desai has urged before us is D that s. 3 of the Act is ultra vires. Before dealing with this contention, it is relevant to refer to the series of Acts which have been passed by the Bombay Legislature with a view to remove the disabilities from which the Harijans suffered.\n\nA brief resume of the legislative history on this topic would be of interest not only in dealing with the contention raised by Mr. Desai about the E invalidity of s. 3, but in appreciating the sustained and deliberate efforts which the Legislature has been making to meet the challenge of untouchability.\n\nIn 1958, the Bombay Harijans Temple Worship (Removal of Disabilities) Act (No. 11 of 193 8) was passed.\n\nThis Act represented a somewhat cautious measure adopted by the Bombay Legislature to deal with the problem of untouchability.\n\nIt made an effort to feel the pulse of the Hindu community in general and to watch its reactions to the efforts which the Legislature may make, to break through the citadel of orthodoxy, and conquer traditional prejudices against Harijans.\n\nThis Act did not purport to create any statutory right which Harijans could enforce by claiming an entry into Hindu temples; it only purported to make some enabling provisions which would encourage the progressive element~ in the Hindu community to help the Legislature in combating the evil of untouchability.\n\nThe basic scheme of this Act was contained in sections 3, 4 & 5.\n\nThe substance of the provisions contained in these sections was that in regard to temples, the trustees could by a majority make a declaration that\n\nYAGNAPURUSHADJI v. MULDAS ( Gaiendragadkar, C.J.) 2 5 3\n\ntheir temples would be open to Harijans notwithstanding the terms of instrument of trust, the terms of dedication or decree or order of any competent court or any custom, usage or law for the time being in force to the contrary.\n\nSection 3 dealt with making of these declarations.\n\nSection 4 required the publication of the said declarations in the manner indicated by it, and section 5 authorised B persons interested in the temple in respect of which a declaration had been published under s. 4 to apply to the court to set aside the said declaration. If such an application is received, the jurisdiction has been conferred on the court to deal with the said application.\n\nSection 5 ( 5) provides that if the court is satisfied c that the applicant was a person interested in the temple and that the impugned declaration was shown not to have been validly made, it shall set aside the declaration; if the court is not so satisfied, it shall dismiss the application.\n\nSection 5(7) provides that the decision of the Court under sub-s. ( 5) shall be final and conclusive for $e purposes of this Act.\n\nThe court specially D empowered to deal with these applications means the court of a District Judge and includes the High Court in exercise of its ordinary Original Civil jurisdiction. . The jurisdiction thus conferred on the court is exclusive with the result that s. 6 bars any Civil Court to entertain any complaint in respect of the matters\n\nE decided by the court of exclusive jurisdiction purporting to act under the provisions of this Act.\n\nThis Act can be regarded as the first step taken by the Bombay Legislatilre to remove the disability of untouchability from which Harijans had been suffering.\n\nThe object of this Act obviously was to invite cooperation from the majority of trustees in the respective Hindu temples in making it possible for the Harijans to enter the said temples and offer F prayers in them.\n\nThen followed Act No. 10 of 1947 which was passed by the Bombay Legislature to provide for the removal of social disabilities of Harijans.\n\nThis Act was passed with the object of removing the several disabilities from which Harijans suffered in regard to G the enjoyment of social, secular amenities of life.\n\nSection 3 of this Act declared that notwithstanding anything contained in any instrument or any law, custom or usage to the contrary, no Harijan shall merely on the ground that he is a Harijan, be ineligible for office under any authority constituted under any law or be prevented from enjoying the amenities described by H clauses (b) (i) to (vii).\n\nThe other sections of this Act made suitable provisions to enforce the statutory right conferred on the Harijans by s. 3.\n\nNext we come to the former Act-No. 35 of 1947. We have already seen that when the present plaint was filed by the appellants, they challenged the right of the non-satsangi Harijans to enter the temples under s. 3 of this Act, and alternatively, they challenged its validity.\n\nThis Act was passed to entitle the Harijans to enter and perfonn worship in the temples in the Province of Bombay.\n\nSection 2(a) of this Act defines a \"Harijan\" as meaning a member of a caste, race or tribe deemed to be a Scheduled caste under the Government of India (Scheduled Castes) Order, 1936.\n\nSection 2(b) defines \"Hindus\" as including Jains; s. 2(c) defines \"temples\" as meaning a place by whatever designation known which is used as of right by, dedicated to or for the benefit of the Hindus in general other than Harijans C as a place of public religious worship; and s. 2(b) defines \"Worship\" as including attendance at a temple for the purpose of 'darshan' of a deity or deities installed in or within the precincts thereof.\n\nSection 3 which contains the main operative provision of this Act reads thus :-\n\n\"Notwithstanding anything contained in the terms of any instruments of trust, the terms of dedication, the tenns of a sanad or a decree or order of a competent court or any custom, usage or law, for the time being in force to the contrary evefl' temple shall be open to Harijans for worship in the same manner and to the same extent as to any member of the Hindu community or any section thereof and the Harijans shall be entitled to bathe in, or use the waters of any sacred tank, well, spring or water-course in the same manner and to the same extent as any member of the Hindu Community or any section thereof.\"\n\nSection 4 provides for penalties. Section 5 excludes the jurisdiction of Civil Courts to deal with any suit or proceeding if it involves\n\na claim which if granted would in any way be inconsistent with the provisions of this Act.\n\nSection 6 authorises the police officer not below the rank of Sub-Inspector to arrest without warrant any person who is reasonably suspected of having committed an offence punishable under this Act.\n\nSection 2 ( c) of the fonner Act was later amended by Act 77 of 1948.\n\nThe definition of the word \"temple\" which was thus\n\ninserted by the amending Act reads thus :- II \"Temple\" means a place by whatever name known and to whomsoever belonging, which is used as a place\n\nof religious worship by custom, usage or otherwise by the members of the Hindu community or any section thereof and includes all land appurtenant thereto and subsidiary shrines attached to any such place.\" It will be recalled that after this amended definition was introduced in the former Act, the appellants asked for and obtained permission to amend their plaint, and it is the claim made in the amended plaint by relation to the new definition of the word \"temple\" that parties led evidence before the trial court. This act shows that the Bombay Legislature took the next step in 1947 and made a positive contribution to the satisfactory solution of c the problem of untouchability. It conferred on the Harijans a right to enter temples to which the Act applied and to offer worship in them; and we have already seen that worship includes attendance at the temple for the purpose of darshan of a deity or deities in the precincts thereof.\n\nOn the 26th January, 1950 the Constitution of India came D into force, and Art. 17 of the Constitution categorically provided that untouchability is abolished and its practice in any form is forbidden.\n\nThe enforcement of any disability arising out of \"Untouchability\" shall be an offence punishable in accordance with law.\n\nIn a sense, the fundamental right declared by Art. 17 E afforded full justification for the policy underlying the provisions of the former Act.\n\nAfter the Constitution was thus adopted, the Central Legislature passed the Untouchability (Offences) Act, 1955 (No. 22 of 1955). This Act makes a comprehensive provision for giving effect to the solemn declaration made by Art. 17 of the Constitu- F tion.\n\nIt extends not only to places of public worship, but to hotels, places of public entertainment. and shops as defined by s. 2(a), (b), (c) and (e). Section 2(d) of this Act defines a \"place of public worship\" as meaning a place by whatever name known which is used as a place of public religious worship or which is dedicated generally to, or is used generally by, persons professing any religion or belonging to any religious denomination or any section thereof, for the performance of any religious service, or for offering prayers therein; and includes all lands and subsidiary shrines appurtenant or attached to any such place.\n\nThe sweep of the definitions prescribed by section 2 indicates the very broad field of socio-religious activities over which the manda-\n\nH tory provisions of this Act are intended to operate. It is not necessary for our purpose to refer to the provisions of this Act in detail.\n\nIt is enough to state that ss. 3 to 7 of this Act provide\n\n256 SUPRl!MI! COURT\n\nREPORTS\n\n(1966] 3 S.C.R.\n\ndifferent punishments for contravention of the constitutional A guarantee for the removal of untouchability in any shape or form.\n\nHaving thus prescribed a comprehensive statutory code for the removal of untouchability, s. 17 of this Act repealed twentyone State Acts which had been passed by the several State Legislatures with the same object.\n\nAmongst the Acts thus repealed are Bombay Acts IO of 1947 and 35 of 1947.\n\nThat takes us to the Act No. 31 of 1956-with which we are directly concerned in the present appeal.\n\nAfter the Central Act 22 of 1955 was passed and the relevant Bombay statutes of 1947 had been repealed by s. 17 of that Act, the Bombay Legislature passed the Act.\n\nThe Act is intended to make better provision for the throwing open of places of public worship to all classes and sections of Hindus.\n\nIt is a short Act containing 8 sections.\n\nSection 2 which is the definition section is very important; it reads thus :-\n\n\"2. In this Act, unless the context otherwise requires,- ( a) \"place of public worship\" means a place, whether a temple or by any other name called, to whomsoever belonging which is dedicated to, or for the benefit of, or is used generally by, Hindus, Jains, Sikhs or Buddhists or any section or class thereof, for the performance of any religious service or for offering prayers therein; and includes all lands and subsidiary shrines appurtenant or attached to any such place, and also any sacred tanks, walls, springs, and water courses the waters of which are worshipped, or are used for bathing or for worship;\n\n(b) \"section\" or \"class\" of Hindus includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever of Hindus.\" Section 3 is the operative provision of the Act and it is necessary\n\nto read it also : \"3. Notwithstanding any custom, usage or law for the time being in force, or the decree or order of a court, or anything contained in any instrument, to the contrary, every place of public worship which is open to Hindus generally, or to any section or class thereof, shall be open to all sections and classes or Hindus; and no Hindu of whatsoever section or class, shall in any manner be prevented, obstructed or discouraged from entering such place of public worship, or from worshipc\n\n...\n\n-..\n\n... 1\n\nping or offering prayers threat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform.\" Section 4 (1) provides for penalties for the contravention of the provisions of the Act and s. 4(2) lays down that nothing in this section shall be taken to relate to offences relating to the practice of \"untouchability\".\n\nSection 5 deals with the abetment of offences prescribed by s. 4(1). Section 6 provides, inter alia, that no Civil Court shall pass any decree or order which in substance would in any way be contrary to the provisions of this Act.\n\nSectiou 7 makes offences prescribed by s. 4( 1) cognisable, and compoundable with the permission of the Court; and s. 8 provides that the provisions of this Act shall not be taken to be in derogation of any of the provisions of the Untouchability\n\n(Offences) Act-22 of 1955-or any other law for the time being in force relating to any of the matters dealt with in this Act.\n\nThat in brief is the outline of the history of the Legislative efforu to combat and meet the problem of untouchability and to help Harijans to secure the full enjoyment of all rights guaranteed to them by Art. 17 of the Constitution.\n\nLet us now revert to Mr. Desai's argument that s. 3 of the Act is invalid inasmuch as it contravenes the appellants' fundamental rights guaranteed by Art. 26 of the Constitution. Section 3 throws open the Hindu temples to all classes and sections of Hindus and it puts an end to any effort to prevent or obstruct or discourage Harijans from entering a place of public worship or from worshipping or offering prayers threat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform.\n\nThe object of the section and its meaning are absolutely clear.\n\nIn the matter of entering the Hindu temple or worshipping, praying or performing any religious service therein, there shall be no discrimination between any classes or sections of Hindus, and others.\n\nIn other words, no Hindu temple shall obstruct a Harijan for entering the temple or worshipping in the temple or praying in it or performing any religious service therein in the same manner and to the same extent as any other Hindu would be permitted to do.\n\nMr. Desai contends that in the temples, in suit, even the Satsangi Hindus are not permitted to enter the innermost sacred part of the temple where the idols are installed.\n\nIt is only the Poojaris who are authorised to enter the said sacred portion of the\n\ntemples and do the actual worship of the idols by touching the idols for the purpose of giving a bath to the idols, dressing the idols, offering garlands to the idols and doing all other ceremonial rites prescribed by the Swaminarayan tradition and convention; and his grievance is that the words used in s. 3 are so wide that even this part of actual worship of the idols which is reserved for the Poojaris and specially authorised class of worshippers, may be claimed by respondent No. I and his followers; and in so far as such a claim appears to be justified by s. 3 of the Act, it contravenes the provisions of Art. 26(b) of the Constitution.\n\nArt. 26(b) provides that subject to public order, morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion, and so, the contention is that the traditional conventional manner of performing the. actual worship of the idols would be invaded if the broad words of s. 3 are construed to confer on non-Satsangi Harijans a right to enter the innermost sanctuary of the temples and seek to perform that part of worship which even Satsangi Hindus arc not permitted to do.\n\nIn our opinion, this contention is misconceived.\n\nIn the lint place it is significant that no such plea was made or could have been made in the plaint, because s. 3 of the former Act which was initially challenged by the appellants had expressly defined \"worship\" as including a right to attend a temple for the purpose Qf darshan of a deity or deities in or within the precincts thereof, and the cause of action set out by the appellants in their plaint was that they apprehended that respondent No. I and his followers would enter the temple and seek to obtain darshan of the deity installed in it.\n\nTherefore, it would not be legitimate for the appellants to raise this new contention for the first time when they find that the words used in s. 3 of the Act are somewhat wider than the words used in the corresponding section of the former Act.\n\nBesides, on the merits, we do not think that by enacting s. 3,\n\nthe Bombay Legislature intended to invade the traditional and G conventional manner in which the act of actual worship of the deity is allowed to be performed only by the authorised Poojaris of the temple and by no other devotee entering the temple for darshan.\n\nIn many Hindu temples, the act of actual worship is entrusted to the authorised Poojaris and all the devotees are allowed to enter the temple up to a limit beyond which entry H is barred to them, the innermost portion of the temple being reserved only for the authorised Poojaris of the temple. If that\n\n...., ' r\n\nA is so, then all that s. 3 purports to do is to give the Harijans the\n\nsame right to enter the temple for 'darshan' of the. deity as can be claimed by the other Hindus.\n\nIt would be noticed that the right to enter the temple, to worship in the temple, to pray in it or to perform any religious service therein which has been co~ ferred by s. 3, is specifically qualified by the clause tha.t the said B right will be enjoyed in the like manner and to the hke extent as any other Hindu of whatsoever section or class may do. The main object of the section is to establish complete social equality between all sections of the Hindus in the matter of worship specified by s. 3; and so, the apprehension on which Mr. Desai's argument is based must be held to be misconceived.\n\nWe are, C therefore, satisfied that there is no substance in the contention that s. 3 of the Act is ultra vires.\n\nThat takes us to the main cm; itroversy between the parties.\n\nAre the appellants justified in contending that the Swaminarayan sect is a religion distinct and separate from the Hindu religion, and consequently, the temples belonging to the said sect do not fall within the ainbit of s. 3 of the Act ? In attempting to answer this question, we must inevitably enquire what are the distinctive . features of Hindu religion? The consideration of this question, prima facie, appears to be somewhat inappropriate within the limits of judicial enquiry in a court of law.\n\nIt is true that the appellants seek for reliefs in the present litigation on the ground that their civil rights to manage their temples according to the religious tenets are contravened; and so, the Court is bound to deal with the controversy as best as it can.\n\nThe issue raised between the parties is undoubtedly justiciable and has to be considered as such; but in doing so, we cannot ignore the fact F that the problem posed by the issue, though secular in character, is very complex to determine; its decision would depend on social, sociological, historical, religious and philosophical considerations; and when it is remembered that the development and growth of Hindu religion spreads over a large period nearly 4,000 years,\n\nG the complexity of the problem would at once become patent.\n\nWho are Hindus and what are the broad features of Hindu religion, that must be the first part of our enquiry in dealing with the present controversy between the parties.\n\nThe historical and etymological genesis of the word \"Hindu\" has given rise to a controversy ainongst indologists; but the view generally accepted H by ocholars appears to be that the word \"Hindu\" is derived from the river Sindhu otherwise known as Indus which flows from the Punjab. 'That part of the great Aryan race\", says Monier\n\nWilliams, \"which immigrated from Central Asia, through the A mountain passes into India, settled first in the districts near the river Sindhu (now called the .Indus). The Persians pronounced this word Hindu and named their Aryan brethcrn Hindus.\n\nThe Greeks, who probably gained their first ideas of India from the Persians, dropped the hard aspirate, and called the Hindus \"lndoi\".( 1).\" B\n\nThe Encyclopaedia of Religion and Ethics, Vol. VI, has described \"Hinduism\" as the title applied to that form of religion which prevails among the vast majority of the present population of the Indian Empire (p. 686). As Dr.\n\nRadhakrishnan has observed; \"The Hindu civilization is so called, since its original c founders or earliest followers occupied the territory drained by the Sindhu (the Indus) river system corresponding to the North West Frontier Province and the Punjab.\n\nThis is recorded in the Rig Veda, the oldest of the Vedas, the Hindu scriptures which give their name to this period Indian history.\n\nThe people on the Indian side of the Sindhu were called Hindu by the Persian and D the later western invaders\".(') That is the genesis of the word ·\"Hindu\".\n\nWhen we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately ilescribe it.\n\nUnlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed.\n\nIt may broadly be described as a way of life and nothing more.\n\nConfronted by this difficulty, Dr. Radhakrishnan realised thRI \"to many Hinduism seems to be a name without any content.\n\nit a museum of beliefs, a medley of rites, or a mere map, a geographical expression?\"(') Having posed these questions which disturbed foreigners when they think of Hinduism, Dr.\n\nG Radhakrishnan has explained how Hinduism has steadily absorbed the customs and ideas of peoples with whom it has come into contact and has thus been able to maintain its supremacy and it~ youth.\n\nThe term 'Hindu', according to Dr. Radhakrishnan, had originally a territorial and not a credal significance. It implied -residence in a well-defined geographical area.\n\nAboriginal tribea,\n\n(I) \"Hinduism\"' by Monier Williams, p. I. .(2) \"Tho Hindu View of Life\" by Dr. Raclhakr15hnan, p. tl.\n\n(3) Ibid p. 11.\n\n4 .\n\nr--\n\n• ... '\n\n....\n\nA savage and half-civilized people,. the cultured Dravidians and the Vedic Aryans were all Hindus as they were the sons of the same mother.\n\nThe Hindu thinkers reckoned with the striking fact that the men and women dwelling in India belonged to different communities, worshipped different gods, and practised different rites\n\n(Kurma Purana)(').\n\nMonier Williams has observed that \"it must be borne in mind that Hinduism is far more than a mere form of theism resting on Brahmanism.\n\nIt presents for our investigation a complex congeries of creeds and doctrines which in its gradual accumulation may be compared to the gathering together of the mighty volume of the Ganges, swollen by a continual influx of tributary rivers and rivulets, spreading itself over an ever-increasing area of country and finally resolving itself into an intricate Delta of tortuous steams and jungly marshes ........ The Hindu religion is a reflection of the composite character of the Hindus, who are not one people but many. It is based on the idea of universal receptivity.\n\nIt has ever aimed at accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years.\n\nIt has first borne with and then, so to speak, swallowed, digested, and assimilated something from all creeds.\" (2)\n\nWe have already indicated that the usual tests which can be applied in relation to any recognised religion or religious creed in the world tum out to be inadequate in dealing with the problem of Hindu religion.\n\nNormally, any recognised religion or religious creed subscribes to a body of set philosophic concepts and theological beliefs.\n\nDoes this test apply to the Hindu religion ? In answering this question, we would base ourselves mainly on the exposition of the problem by Dr. Radhakrishnan in his work on Indian Philosophy. (3 ) Unlike other countries, India can claim that philosophy in ancient India was not an auxiliary to any other science or art, but always held a prominent position of independence.\n\nThe Mundaka Upanisad speaks of Brahma-vidya or the science of the eternal as the basis of all sciences, 'sarva-vidyapratishtha'. According to Kautilya, \"Philosophy\" is the lamp of all the sciences, the means of performing all the works, and the support of all the duties. \"In all the fleeting centuries of history'', says Dr. Radhakrishnan, \"in all the vicissitudes through which India has passed, a certain marked identity is visible.\n\nIt has held fast to certain psychological traits which constitute its special\n\n(I) Ibid p. 12. (2} \"Religious Thought & L!feln India\" by Monier Williams, p. 57. (3} \"Indian Philosophy\" by Dr. Radhakrlshnan, Vol. I, pp. 2X23.\n\nheritage, and they will be the characteristic marks of the Indian people so long as they are privileged to have a separate existence\".\n\nThe history of Indian thought emphatically brings out the fact that the development of Hindu religion has always been inspired by an endless quest of the mind for truth based on the consciousness that truth has many facets.\n\nTruth is one, but wise men describe it differently.(') The Indian mind has, consistently through the ages, been exercised over the problem of the nature of godhead the problem that faces the spirit at the end of life, and the interrelation between the individual and the universal soul. \"If we can abstract from tho variety of opinion\", says Dr.\n\nRadhakrishnan, \"and observe the general spirit of Indian thought, we shall find that it has a disposition to interpret life and nature in the way of monistic idealism, though this tendency is so plastic, living and manifold that it takes many forms and expresses itself in even mutually hostile teachings\".(2 }\n\nThe monistic idealism which can be said to be the general distinguishing feature of Hindu Philosophy has been expressed in four different forms : ( 1) Non-dualism or Advitism; (2) Pure monism: (3) Modified monism; and ( 4) Implicit monism.\n\nIt is remarkable that these different forms of monistic idealism purport to derive support from the same vedic and Upanishadic texts.\n\nShankar, Ramanuja, Vallabha and Madhva all based their philosophic concepts on what they regarded to be the synthesis between the Upanishads, the Brahmasutras and the Bhagavad Gita.\n\nThough philosophic concepts and principles evolved by different Hindu thinkers and philosophers varied in many ways and even appeared to conflict with each other in some particulars, they all had reverence for the past and accepted the Vedas as the sole foundation of the Hindu philosophy.\n\nNaturally enough, it was realised by Hindu religion from the very beginning of its career that truth was many-sided and different views contained different aspects of truth which no one could fully express. This knowledge inevitably bred a spirit of tolerance and willingness to understand and appreciate the opponents point of view.\n\nThat is how \"the several views set forth in India in regard to the vital philosophic concepts are considered to be the branches of the self-same tree.\n\nThe short cuts and blind alleys are somehow reconciled with the main road of advance to the truth.\"(') When we consider this broad sweep of the Hindu philosophic concepts, it would be realised that under Hindu philosophy, there is no scope for ex-\n\n( I) !{iii mifSIT m' 'flef'a' I\n\n(l) Ibid, p. 32.\n\n(3) Ibid p. 48.\n\n• • ,;·,\n\nYAGNAPUllUSHADJI v. MULDAS (Ga; endragadkar, C.J.) 263\n\ncommunicating any notion or principle as heretical and rejectint it as such.\n\nMax Muller who was a great oriental scholar of his time was impressed by this comprehensive and all-pervasive aspect of the sweep of Hindu philosophy. Referring to the six systems known to Hindu philosophy, Max Muller observed : \"The longer I have 8 studied the various systems, the more have I become impressed with the truth of the view taken by Vijnanabhiksu and others that there is behind the variety of the six systems a common fund of what may be called national or popular philosophy, a large manasa (lake) of philosophical thought and language far away c in the distant North and in the distant past, from which each thinker was allowed to draw for his own purposes\".(1)\n\nBeneath the diversity of philosophic thoughts, concepts and ideas expressed by Hindu philosophers who started different philosophic schools, lie certain broad concepts which can be\n\ntreated as basic.\n\nThe first amongst these basic concepts is the acceptance of the Veda as the highest authority in religious and philosophic matters. This concept necessarily implies that all the systems claim to have drawn their principles from a common reservoir of thought enshrined in the Veda. The Hindu teacher& were thus obliged to use the heritage they received from the past in order to make their views readily understood.\n\nThe other basic concept which is common to the six systems of Hindu philosophy is that \"all of them accept the view of the great world rhythm.\n\nVast periods of creation, maintenance and dissolution follow each other in endless succession. This theory is not inconsistent with belief in progress; for it is not a question of the movement of the world reaching its goal times without number, and being again forced back to its starting point. . . . . . It means that the race of man enters upon and retravels its ascending path of realisation.\n\nThis interminable succession of world ages has no beginning\". (2 ) It may also be said that all the systems of Hindu philosophy believe in rebirth and pre-existence. \"Our life is a step on a road, the direction and goal of which are lost in the infinite.\n\nOn this road, death is never an end of an obstacle but at most the beginning of new steps\". (1) Thus, it is clear that unlike other religions and religious creeds, Hindu religion is not tied to any definite set of philosophic concepts as such.\n\nDo the Hindus worship at their temples the same set or number of gods ? That is another question which can be asked in this\n\nCl) \"Six S:rstems of Indian Philosophy\" by Max Muller, p. xvii.\n\n(l) \"Indian Philosophy\" by Dr. Radhakriabnan, Vol. II., p. 26 LIO Sup. C.1./66--4\n\n(3) 1611/.\n\n-connection; and the answer to this question again has to be in the negative.\n\nIndeed, there are certain sections of the Hindu -community which do not believe in the worship of idols; and as regards those sections of the Hindu community which believe in the worship of idols, their idols differ from community to community and it cannot be said that one definite idol or a definite number of idols are worshipped by all the Hindus in general.\n\nIn the Hindu Pantheon the first gods that were worshipp.ed in Vedic times were mainly Indra, Varuna, Vayu and Agni.\n\nLater, Brahma, Vishnu and ahesh came to be worshipped.\n\nIn course\n\nof time, Rama and Krishna secured a place of pride in lhe Hindu\n\nPantheon, and gradually as different philosophic concepts held c sway in different sects and in different sections of the Hindu -community, a large number of gods were added, with the result that today, the Hindu Pantheon presents the spectacle of a very large number of gods who are worshipped by different sections of the Hindus.\n\nThe development of Hindu religion and philosophy hows that from time to time saints and religious reformers attempted to remove from the Hindu thought and practices elements of corruption and superstition and that led to the formation of different sects.\n\nBuddha started Buddhism; Mahavir founded Jainism; Basava bepame the founder of Lingayat religion, Dnvaneshwar and Tukaram initiated the Varakari cult; Guru Nank inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bbakti cult; and as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion flowered into its most atlractive, progressive and dynamic form. If we study the teachings of these saints and religious reformers, we would notice an amont of divergence in their respective views; but underneath that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive Hindu religion.\n\nThere are some remarkable features of the teachings of these sain:s and religious reformers.\n\nAll of them revolted against the dominance of rituals and the power of the priestly class with which it came to be associated; and all of them proclaimed their teachings not in Sanskrit which was the monopoly of the priestly class, but in the languages spoken by the ordinary mass of people in their respective regions.\n\nWhilst we are dealing with this broad and comprehensive aspect of Hindu religion, it may be permissible to enquire what, according to this religion, is the ultimate goal of humanity? It\n\n• '\n\n.,.\n\n,,,\n\n• '\n\nis the release and freedom from the unceasing cycle of births and rebirths; Moksha or Nirvana, which is the ultimate aim of Hindu religion and philosophy, represents the state of absolute absorption and assimilation of the individual soul with the infinite.\n\nWhat are the means to attain this end ? On this vital issue, there is great divergence of views; some emphasise the importance of Gyan or knowledge, while others extol the virtues of Bhakti or devotion; and yet others insist upon the paramount importance of the performance of duties with a heart full of devotion and mind inspired by true knowledge.\n\nIn this sphere again, there is diversity of opinion, though all are agreed about the ultimate goal.\n\nTherefore, it would be inappropriate to apply the traditional tests in determining the extent of the jurisdiction of Hindu religion.\n\nIt can be safely described as a way of life based on certain basic concepts to which we have already referred.\n\nTilak faced this complex and difficult problem of defining or at least describing adequately Hindu religion and he evolved a working formula which may be regarded as fairly adequate and satisfactory.\n\nSaid Tilak : \"Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion\" (1). This definition brings out succinctly the broad distinctive features of Hindu religion.\n\nIt is somewhat remarkable that this broad sweep of Hindu religion has been eloquently described by Toynbee.\n\nSays Toynbee : \"When we pass from the plane of social practice to the plane of intellectual outlook, Hinduism too comes out well by comparison with the religions and ideologies of the South-West Asian group.\n\nIn contrast to these Hinduism has the same outlook as the pre-Christian and pre-Muslim religions and philosophies of the Western half of the old world.\n\nLike them, Hinduism takes it for granted that there is more than one valid approach to truth and to salvation and that these different approaches are not only compatible with each other, but are complementary''(').\n\nThe Constitution-makers were fully conscious of this broad and comprehensive character of Hindu religion; and so, while guaranteeing the fundamental right to freedom of rdigion, Explanation Il to Art. 25 has made it clear that in sub-clause (b) of clause (2), the reference to Hindus shall be construed as\n\n(1) l'il\"'l'J, fo<i~~ <lltli•O'lil'f.trl I \"\"\"\"\"\"'\"'\"\"\" ' . '3q1fqil~1; i'll'~Q,.d'il'ifll\n\n\\'I'~ 11 (B. O. Tilak'a \"Gilarabasya'')\n\n(2) \"The Present-Day llxpcrlmcnt ln Western Civilisation\" by Toynbee, pp, 48-4~.\n\n266 SuPREMB COURT\n\nJU.PORTS\n\n[1966) 3 S.C.R.\n\nincluding a reference to persons professing the Sikh, 1 aina or A Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.\n\nConsistently with this constitutional provision, the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoptio1111 B. and Maintenance Act, 1956 have extended the application of these Acts to all persons who can be regarded as Hindus in this broad and comprehensive sense.\n\nSection 2 of the Hindu Marriage Act, for instance, provides that this Act applies-\n\n( a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,\n\n(b) to any person who is a Buddhist, Jaina, or Sikh by religion, and ( c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.\n\nThe same provision is made in the other three Acts to which we have just referred.\n\nIt is in the light of this position that we must now proceed to consider whether the philosophy and theology of Swaminarayan F show that the school of Swaminarayan constitutes a distinct and separate religion which is not a part of Hindu religion. Do the followers of the said sect fall outside the Hindu brotherhood, that is the crux of the problem which we have to face in the present appeal. In deciding this question, it is necessary to consider broadly the philosophic and theological tenets of Swaminarayan G and the characteristics which marked the followers of Swami narayan who are otherwise known as Satsangis.\n\nIn dealing with this aspect of the problem, it would be safe to rely upon the data furnished by Monier Williams in his book \"Roligious thought and life in India\" (1883). It is hardly necessary to emphasise that Monier Williams played a very 11 important role in explaining the religious thought and life in India to the English-speaking world outside India. \"Having been a\n\n• •\n\n. .. ~\n\nstudent of Indian sacred literature for more than forty years,\" observed Monier Williams \"and having twice travelled over every part of India, from Bombay to Calcutta, from Cashmere to Ceylon, I may possibly hope to make a dry subject fairly attractive without any serious sacrifice of scientific accuracy, while at the same time it will be my earnest endeavour to hold the scales impartially between antagonistic religious systems and as far as possible to do justice to the amount of truth that each may contain\" (P. 1).\n\nIt is remarkable tribute to the scholarship of Monier Williams and of his devotion to the mission which he had undertaken that though his book was written as early as 1883, it is still regarded as a valuable source of information in dealing with problems connected with the religious thought and life in India.\n\nLet us then refer briefly to the life story of Swaminarayan for that would help us to understand and appreciate the significance of his philosophic and religious teachings.\n\nThe original name of Swaminarayan was Sahajananda. By birth, he was a high- D caste Brahaman. He was born at Chapai, a village 120 miles to the North-west of Lucknow, about the year 1780. He was born to V aishnava parents, but early in his career he was \"disgusted\n\nwith the manner of life of the so-called followers of Vallabhacharya, whose precepts and practice were utterly at variance, and especially with the licentious habits of the Bombay Maharajas.\" E He was then determined to denounce these irregularities and expose the vices that had crept into the lives of the Bombay Maharajas.\n\nSwaminarayan was a celibate and he \"lived an ascetical, yet withal a large-hearted and philanthropic, life\" and the showed a great aptitude for learning. In 1800, he left his home\n\nand placed himself under the protection of the chief Guru, named Ramananda Swami at a village within the jurisdiction of the Junagarh Nawab.\n\nWhen Ramananda Swami removed to Ahmedabad in 1804, Sahajananda followed him.\n\nSoon Sahajananda collected around him a little band of disciples, which rapidly grew \"into an army of devoted adherents\". That naturally provoked the wrath of the orthodox Brahmans and magnates of Ahmedabad who began to persecute him.\n\nThat drove Sahajananda to Jetalpur, 12 miles south of Ahmedabad, which became the focus of a great religious gathering. Thousands of people were attracted by this young religious teacher who now took the name of Swaminarayan. Swaminarayan then retired to the H secluded village of Wartal, where he erected a temple to Narayana (otherwise Krishna, or Vishnu, as the Supreme Being) associated with the goddess Lakshmi.\n\nFrom this Central scene of his religious activities, Swaminarayan mounted a strong crusade\n\nagainst the licentious habits of the gurus of the V allabhacharya A sect.\n\nHis watchword was \"devotion to Krishna with observance of duty and purity of life\".\n\nThe two principal temples of the Swaminarayan sect are at Wartal, which is about four miles to the We.!it of the Baroda railway station, and at Ahmedabad.\n\nIn about 1826-27, a formal constitution of the sect appears B to have been prepared; it is known as the 'lekh' or the document for the apportionment of territory (Deshvibhaga Lekh). By this document, Swaminarayan divided India into two parts by a national line running. from Calcutta to Navangar and established dioceses, the northern one with the temple of Nar Narayan at Ahmedabad, and the southern one which included the temple of C Lakshminarayan at Wartal.\n\nTo preside over these two dioceses Swaminarayan adopted his two nephews Ayodhyaprasad and Raghuvir respectively. Subordinate to these Gadis and the principal temples, two score large temples and over a thousand smaller temples scattered all over the country came to be built in due course.\n\nThe Constitution of the Swaminarayan sect and its tenets and practices are collected in four different scriptures of the faith viz.,\n\n(I) the \"Lekh\" to which we have just referred;\n\n(2) the \"Shikahapatri\" which was originally written by Swaminarayan himself in about 1826 A.D.; the original manuscript docs not E appear to be available, but the Shikshapatri was subsequently rendered into Sanskrit verses by Shatanandswami under the direc tions of Swaminarayan himself.\n\nThis Sanskrit translation is treated by the followers of Swaminarayan as authentic.\n\nThis book was later translated into Gujarati by another disciple named Nityanand.\n\nThis Shikshapatri is held in high reverence by the F followers of the faith as a prayer book and it contains summary of Swaminarayan's instructions and principles which have to be followed by his disciples in their lives; (3) the \"Satsangijiwan\" which consists of five parts and is written in Sanskrit by Shathnand during the lifetime of Swaminarayan. This work gives an account of the life and teachings of Swaminarayan.\n\nIt appears to have G been completed in about 1829. Shikshapatri has been bodily incorporated in this work; ( 4) the \"Vachanamrit\" which is a collection of Swaminarayan's sermons in Gujarati.\n\nThis appears to have been prepared between I 828 and 1830. Swaminarayan died in 1830.\n\nIt is necessary at this stage to indicate broadly the principles which Swaminarayan preached and which he wanted his followers to adopt in life.\n\nThese principles have been suscinctly sum-\n\n.. ..\n\n• •\n\n. YA(iNAPURUSHADJI v. MULDAS (Gajendragadkar, C.I.) 26~\n\nDll!rised by Monier Williams.\n\nIt is interesting to recall that before Monier Williams wrote his Chapter on Swaminarayan sect, he visited the Wartal temple in company with the Collector of Kaira on the day of the Purnima, or full moon of the month of Karttik which is regarded as the most popular festival of the whole year by the Swaminarayan sect.\n\nOn the occasion of this visit, Monier Williams had long discussions with the followers of Swaminarayan and he did his best to ascertain the way Swaminarayan's principles were preached and taught and the way they were\n\npractied by the followers of the sect.\n\nWe will now briefly reproduce some of the principles enunciated by Swaminarayan.\n\n\"The killing of any animal for the purpose of sacrifice to the gods is forbidden by me.\n\nAbstaining from injury is the highest of all duties. No flesh meat must ever be eaten, no spirituous or vinous liquor must ever be drunk, not even as medicine. My\n\nmale followers should make the vertical mark ( emblematical of the footprint of Vishnu or Krishna) with the round spot inside it (symbolical of Lakshmi) on their foreheads.\n\nTheir wives should only make the circular mark with red powder or saffron.\n\nThose who are initiated into the proper worship of Krishna should always D wear on their necks two rosaries made of Tutsi wood, one for Krishna and the other for Radha.\n\nAfter engaging in mental worship, let them reverently bow down before the pictures of Radha and Krishna, and repeat the eight-syllabled prayer to Krishna (Sri Krishnan saranam mama, 'Great Krishna is my soul's refuge') as many times as possible.\n\nThen let them apply them-\n\nE selves to secular affairs.\n\nDuty (Dharma) is that good practice which is enjoined both by the Veda (Sruti) and by the law (Smriti) founded on the Veda.\n\nDevotion (Bhakti) is intense love for Krishna accompanied with a due sense of his glory. Every day all my followers should go to the Temple of God, and there repeat the names of Krishna.\n\nThe story of his life should be listened to with the great reverence, and hymns in his praise should F be sung on festive days.\n\nVishnu, Siva, Ganapati (or Ganesa).\n\nParvati, and the Sun; these five deities should be honoured with worship.\n\nNarayana and Siva should be equally regarded as part of one and same Supreme Spirit, since both have been declared in the Vedas to be forms of Brahma. On no account let it be supposed that difference in forms (or names) makes any difference in the identity of the deity.\n\nThat Being, known by various namCi ---such as the glorious Krishna, Param Brahma, Bhagavan, Purushottama-the cause of all manifestations, is to be adored by us as our one chosen deity.\n\nThe philosophical doctrine approved by me is the Visishtadvaita (of Ramanuja), and the desired heavenly\n\nabode is Goloka. There to worship Krishna and be united with A him u the Supreme Soul is to be considered salvation.\n\nThe twioobom should perform at the proper seasons, and according to their means, he twelve purificatory rites (sanskara), the (six) daily duties, and the Sradha offerings to the spirits of departed ancea- 1ors. A pilgrimage to the Tirthas, or holy places, of which Dwarika\n\n(Krishna's city in Gujarat) is the chief, should be performed B according to rule.\n\nAlmsgiving and kind acts towards the poor llhould always be performed by all. A tithe of one's income should be assigned to Krishna; the poor should give a twentieth\n\npart.\n\nThose males and females of my followers who will act according to these directions 5hall certainly obtain the four great objects of all human desires-religious merit, wealth, pleasure, c and beatitude\" ( 1).\n\nThe Gazetteer of the Bombay Presidency has summarised the teachings embodied in the Shikshapatri in this way :-\n\n'The book of precept5 strictly prohibits the destruction of animal life; promiscuous intercourse with the other sex; use of animal food and intoxicant liquors and drugs on any occasion, suicide, theft and robbery; false accusation against a fellow-man, blasphemy; partaking of food with low caste people; caste pollution; company of atheists and heretics and other practices which might counteract the effect of the founder's teachings\". (2)\n\nIt is interesting to notice how a person is initiated into the sect of Satsangis.\n\nThe ceremony of initiation is thus described in the Gazetteer of the Bombay Presidency :-\n\n'The ceremony of initiation begin! with the novice offering a palmful of water which he throws on the ground at the feet of the Acharya saying : I give over to Swami Sahajanand my mind, body, wealth, and sins of (all) births, 'Man', tan, dhan, and janmana pap.\n\nHe is then given the sacred formula 'Sri Krishnastwam gatirmama, Shri Krishna thou art my refuge.\n\nThe novice then pays at least half a rupee to the Acharya.\n\nSometimes the Acharya delegates his authority to admit followers as candidates for regular discipleship, giving them the Panch Vartaman, formula forbiding lying, theft, adultery, intoxication and animal food.\n\nBut a\n\n(I) \"Reli1ious thoulht and life in India\" By Monier Williams pp. 155-58.\n\n(2) Gazetteer of the Bombay Preaidcncy, Vol. IX, Part I, Gujarat Population,\n\n1901, p, 537.\n\n. '\n\n;.l\n\n....\n\n...;,\n\n_,.\n\nYA(iNAPURUSHADJI V. MULDAS (Gajendragadkar, C.J.) 271\n\nperfect disciple can be made only after receiving the final formula from one of the two Acharyas.\n\nThe distinguishing mark, which the disciple is then allowed to make on his forehead, is a vertical streak of Gopi chandan clay or sandal with a round redpowder mark in the middle and a necklet of sweet basil beads\". ( 1)\n\nNow that we have seen the main events in the life and career of Swaminarayan and have examined the broad features of his teachings, it becomes very easy to decide the question as to whether the Swaminarayan sect constitutes a distinct and separate religion and cannot be regarded as a part of Hindu religion. In our opinion, the plea raised by the appellants that the Satsangis who follow the Swaminarayan sect form a separate and distinct oommunity different from the Hindu community and their religion\n\nis a distinct and separate religion different from Hindu religion, is entirely misconceived.\n\nPhilosophically, Swaminarayan is a follower of Ramanuja, and the essence of his teachings is that D every individual should follow the main Vedic injunctions of a good, pious and religious life and should attempt to attain salvation by the path of devotion to Lord Krishna.\n\nThe essence of the initiation lies in giving the person initiated the secret 'Mantra' which is : \"Lord Krishna, thou art my refuge : Lord Krishna, I dedicate myself to thee\". Acceptance of the Vedas with reverence E recognition of the fact that the path of Bhakti or devotion leads to Moksha, and insistence on devotion to Lord Krishna unambiguously and unequivocally proclaim that Swaminarayan was a lfmdu saint who was determined to remove the corrupt practices which had crept into the lives of the preachers and followers of F Vallabhacharya, and who wanted to restore the Hindu religion to its original glory and purity.\n\nConsidering the work done by Swaminarayan, history will not hesitate to accord him the place ol honour in the galaxy of Hindu saints and religious reformers who by their teachings, have contributed to make Hindu religion ever alive, youthful and vigorous.\n\nG It is, however, urged that there are certain features of the Satsangi followers of Swaminarayan which indicate that the sect is a different community by itself and its religion is not a part of Hindu religion. It is argued that no person becomes a Satsangi by birth and it is only by initiation that the status of Satsangi is H conferred on a person.\n\nPersons of other religions and Harijans can join the Satsangi sect by initiation. Swaminarayan himself is\n\n(I) Oazetteer of the Bombay Presidency, Vol. IX, Part !, Oujarat Population, pp, 538-39.\n\n272 SUl'REME COURT REPORTS\n\n[ 1966] 3 S.C.R.\n\ntreated as a God and in the main temple, worship is offered to A Swaminarayan pre-eminently; and that, it is argued, is not consistent with the accepted notions of Hindu religion.\n\nWomen can take Diksha and become followers of Swaminarayan though Diksha to women is given by the wife of the Acharya.\n\nFive vows have to be taken by the followers of the Satsang, such as abstinence from drinking, from non-vegetarian diet, from illegal sexual relationship, from theft and from inter-pollution. Separate arrangements are niade for Darshan for women, special scriptures\n\nare honoured and special teachers are appointed to worship in the temples.\n\nMr. Desai contends that having regard to all these distinctive features of the Swaminarayan sect, it would be difficult to hold that they are members of the Hindu community and their temples are places of public worship within the meaning of s. 2 of the Act.\n\nWe are not impressed by this argument.\n\nEven a cursory study of the growth and development of Hindu religion through the agea shows that whenever a saint or a religious reformer attempted the task of reforming Hindu religion and fighting irrational or corrupt practices which had crept into it, a sect was born which was governed by its own tenets, but which basically subscribed to the fundamental notions of Hindu religion and Hindu philosophy.\n\nE It has never been suggested that these sects are outside the Hindu brotherhood and the temples which they honour are not Hindu temples, such as are contemplated by s. 3 of the Act.\n\nThe fact that Swaminarayan himself i~ worshipped in these temples is not inconsistent with the belief which the teachings of Bhagvad-Gita have traditionally created in all Hindu minds.\n\nAccording to the Bhagvad-G:ta, whenever religion is on the decline and irreligion is F in the ascendance, God is born to restore the balance of religion and guide the destiny of the human race towards salvation. ( 1) The birth of every saint and religious reformer is taken as an illustration of the principle thus enunciated by Bhagvad-Gita; and so, in course of time, these saints themselves are honoured, beca111e the presence of divinity in their lives inevitably places them on the high pedestal of divinity itself.\n\nTherefore, we are satisfied that none of the reasons on which Mr. Desai relies, justifies his contention that the view taken by the High Court is not right.\n\nIt is true that the Swaminarayan sect gives Diksha to the II followers of other religions and as a result of such initiation, they\n\n( I ) !ffl iro !ilf~ l'l'IW!tilffu 1lrnr I\n\notP!\"ll~Hlfflf roro; f f(Jfli4ij'.'( II Gita 4.7.\n\n. -\n\nbecome Satsangis without losing their character as the followers of their own individual religions.\n\nTitls fact, however, merely shows that the Satsang philosophy preached by Swaminarayan allows followers of other religions to receive the blessings of his teachings without insisting upon their forsaking their own religions.\n\nThe fact that outsiders are willing to accept Diksha or initiation is taken as an indication of their sincere desire to absorb and practice the philosophy of Swaminarayan and that alone is held to enough to confer on them the benefit of Swaminarayan's teachings.\n\nThe fact that the sect does not insist upon the actual process of proselytising on such occaiQns has really no relevance in deciding the question as to whether the sect itself is a Hindu sect or not.\n\nIn a sense, this attitude of the Satsang sect is consistent with the basic Hindu religious and philosophic theory that many roads lead to God. Didn't the Bhagavad-Gita say : \"even those who profess other religions and worship their gods in the manner prescribed by their religion, ultimately worship me and reach me.\"(') Therefore, we have no hesitation in holding that the High Court was right in coming to the conclusion that the Swaminarayan sect to which the appellants belong is not a religion distinct and separate from Hindu religion, and consequently, the temples belonging to the said sect do fall within the ambit of s. 2 of the Act.\n\nThe present suit began its career in 1948 and it was the result of the appellapts' apprehension that the proclaimed and publicised entry of the non-Satsangi Harijans would constitute a violent trespass on the religious tenets and beliefs of the Swaminarayan sect.\n\nThe appellants must no doubt, have realised that if non- Satsangi Hindus including Harijans enter the temple quietly F without making any public announcement in advance, it would be difficult, if not impossible, to bar their entry; but since respondent No. 1 publicly proclain!ed that he and his followers would assert their right of entering the temples, the appellants thought occasion had arisen to bolt the doors of the temples against them; and so, they came to the Court in the present proceedings to ask for the Court's command to prevent the entry of respondent No. I and his followers.\n\nIt may be conceded that the genesis of the suit is the genuine apprehension entertained by the appellants; but as often happens in these matters, the said apprehension is founded on superstition,.\n\nH ignorance and complete misunderstanding of the trne teachings ( I) if ~~ 'lffilT ~\n\n~'111': I ; i srfll' >rrihf om'<f'I irof'<'lf'fflf\"\"l: II Oita 9.21.\n\nSIJPREME COURT REPORTS f 1966] 3 S.C.R.\n\n-Of Hindu religion and of the real significance of the tenets and A philosophy taught by Swaminarayan himself.\n\nWhile this litigation was slowly moving from Court to Court, mighty events of a revolutionary character took place on the national scene.\n\nThe Constitution came into force on the 26th January, 1950 and since then, the whole social and religious out- B look of the Hindu community has undergone a fundamental change\n\n-35 a result of the message of social equality and justice proclaimed by the Indian Constitution. We have seen how the solemn promise enshrined in Art. 17 has been gradually, 'liut irresistibly, enforced by the process of law assisted by enlightened public conscience.\n\nAs a consequence, the controversy raised before us in the present c appeal has today become a matter of mere academic interest. We feel confident that the view which we are taking on the meri!s of the dispute between the parties in the present appeal not only accords with the true legal position in the matter, but it will receive the spontaneous approval and response even from the traditionally conservative elements of the Satsang community D whom the appellants represent in the present litigation.\n\nIn conclusion, we would like to emphasise that the right to enter temple.~ which has been vouchsafed to the Harijans by the impugned Act in substance symbolises the right of Harijans to enjoy all social amenities and rights, for, let it always be remembered that social justice is the main foundation of the democratic way of life E enshrined in the provisions of the Indian Constitution.\n\nThe result is, the appeal fails and is dismissed with costs .\n\n.App11a/ dl•missed.\n\n....", "total_entities": 239, "entities": [{"text": "SASTRI Y AGNAPURUSHADJI AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "SASTRI Y AGNAPURUSHADJI AND OTHERS", "offset_not_found": false}}, {"text": "January 14, 1966", "label": "DATE", "start_char": 81, "end_char": 97, "source": "ner", "metadata": {"in_sentence": "SASTRI Y AGNAPURUSHADJI AND OTHERS v.\n\nMULDAS BHUDARDAS V AISllY A AND AN0111ER\n\nJanuary 14, 1966\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,\n\nM. HIDAYATULLAH, V. RAMASWAMI AND\n\nP. SATYANARAYANA RAJU, JJ.)"}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 100, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 128, "end_char": 141, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 144, "end_char": 159, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 161, "end_char": 173, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "P. SATYANARAYANA RAJU, JJ.", "label": "JUDGE", "start_char": 179, "end_char": 205, "source": "metadata", "metadata": {"canonical_name": "P. SATYANARAYANA RAJU", "offset_not_found": false}}, {"text": "Bombay Harijan Temple Entry Act, 1947", "label": "STATUTE", "start_char": 649, "end_char": 686, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1737, "end_char": 1741, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 26(b)", "label": "PROVISION", "start_char": 1793, "end_char": 1803, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2771, "end_char": 2775, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 26(h)", "label": "PROVISION", "start_char": 2789, "end_char": 2799, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 17", "label": "PROVISION", "start_char": 3465, "end_char": 3472, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3618, "end_char": 3622, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 4313, "end_char": 4317, "source": "regex", "metadata": {"statute": null}}, {"text": "Swaminarayan", "label": "PETITIONER", "start_char": 7343, "end_char": 7355, "source": "ner", "metadata": {"in_sentence": "Philosophically, Swaminarayan was a follower of Ramanuja and the essence of his teachings.is acceptance of the Vedas \\Vith reverence, recognition of the fact that the path of Blwkti or devotion leads to Mohlza.", "canonical_name": "Swaminarayan Sampradaya"}}, {"text": "Ramanuja", "label": "OTHER_PERSON", "start_char": 7374, "end_char": 7382, "source": "ner", "metadata": {"in_sentence": "Philosophically, Swaminarayan was a follower of Ramanuja and the essence of his teachings.is acceptance of the Vedas \\Vith reverence, recognition of the fact that the path of Blwkti or devotion leads to Mohlza.", "canonical_name": "Ramanuja"}}, {"text": "Krishna", "label": "OTHER_PERSON", "start_char": 7567, "end_char": 7574, "source": "ner", "metadata": {"in_sentence": "insistence or demtion to Lord Krishna and a determination to remove corrupt practice3 and restore Hindu Religion to its original glory and purity."}}, {"text": "s 17", "label": "PROVISION", "start_char": 8138, "end_char": 8142, "source": "regex", "metadata": {"statute": null}}, {"text": "Vasant I. Desai", "label": "LAWYER", "start_char": 8269, "end_char": 8284, "source": "ner", "metadata": {"in_sentence": "Vasant I. Desai, M. L. Bha/ja and A.G. Ratnaparkhi, for the appellants."}}, {"text": "M. L. Bha", "label": "LAWYER", "start_char": 8286, "end_char": 8295, "source": "ner", "metadata": {"in_sentence": "Vasant I. Desai, M. L. Bha/ja and A.G. Ratnaparkhi, for the appellants."}}, {"text": "A.G. Ratnaparkhi", "label": "LAWYER", "start_char": 8303, "end_char": 8319, "source": "ner", "metadata": {"in_sentence": "Vasant I. Desai, M. L. Bha/ja and A.G. Ratnaparkhi, for the appellants."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 8342, "end_char": 8356, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-Genera/, Atiqur Rehman and K. L.\n\nHathi, for respondent No."}}, {"text": "Atiqur Rehman", "label": "LAWYER", "start_char": 8376, "end_char": 8389, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-Genera/, Atiqur Rehman and K. L.\n\nHathi, for respondent No."}}, {"text": "K. L.\n\nHathi", "label": "LAWYER", "start_char": 8394, "end_char": 8406, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-Genera/, Atiqur Rehman and K. L.\n\nHathi, for respondent No."}}, {"text": "N. S. Bindra", "label": "LAWYER", "start_char": 8465, "end_char": 8477, "source": "ner", "metadata": {"in_sentence": "I.\n\nC. K. Daphtary, Attorney-Genera/, N. S. Bindra and B. R. G. K.\n\nAchar, for respondent No."}}, {"text": "B. R. G. K.\n\nAchar", "label": "LAWYER", "start_char": 8482, "end_char": 8500, "source": "ner", "metadata": {"in_sentence": "I.\n\nC. K. Daphtary, Attorney-Genera/, N. S. Bindra and B. R. G. K.\n\nAchar, for respondent No.", "canonical_name": "B. R. G. K.\n\nAchar"}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 8525, "end_char": 8536, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General, and B. R. G. K. Achar, for the intervener."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 8561, "end_char": 8578, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General, and B. R. G. K. Achar, for the intervener.", "canonical_name": "B. R. G. K.\n\nAchar"}}, {"text": "GajendrnJ!lldkar,", "label": "JUDGE", "start_char": 8645, "end_char": 8662, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendrnJ!lldkar, C.J. The principal question which arises\n\nin this appeal is whether the Bombay High Court was right in holding that the Swaminarayan Sampradaya (sect) to which the appellants belong, is not a religion distinct and separate from the G Hindu religion, and that the temples belonging to the said sect do come within the ambit of the provisions of the Bombay Hindu Places of Public Worship (Entry-Authorisation) Act, 1956 (No."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 8735, "end_char": 8752, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendrnJ!lldkar, C.J. The principal question which arises\n\nin this appeal is whether the Bombay High Court was right in holding that the Swaminarayan Sampradaya (sect) to which the appellants belong, is not a religion distinct and separate from the G Hindu religion, and that the temples belonging to the said sect do come within the ambit of the provisions of the Bombay Hindu Places of Public Worship (Entry-Authorisation) Act, 1956 (No."}}, {"text": "Swaminarayan Sampradaya", "label": "PETITIONER", "start_char": 8783, "end_char": 8806, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendrnJ!lldkar, C.J. The principal question which arises\n\nin this appeal is whether the Bombay High Court was right in holding that the Swaminarayan Sampradaya (sect) to which the appellants belong, is not a religion distinct and separate from the G Hindu religion, and that the temples belonging to the said sect do come within the ambit of the provisions of the Bombay Hindu Places of Public Worship (Entry-Authorisation) Act, 1956 (No.", "canonical_name": "Swaminarayan Sampradaya"}}, {"text": "12th January, 1948", "label": "DATE", "start_char": 9216, "end_char": 9234, "source": "ner", "metadata": {"in_sentence": "The suit from which the present appeal arises was instituted by the appellants on the 12th January, 1948, in the Court of the Joint Civil Judge, H Senior Division, Ahmedabad."}}, {"text": "Joint Civil Judge, H Senior Division, Ahmedabad", "label": "COURT", "start_char": 9256, "end_char": 9303, "source": "ner", "metadata": {"in_sentence": "The suit from which the present appeal arises was instituted by the appellants on the 12th January, 1948, in the Court of the Joint Civil Judge, H Senior Division, Ahmedabad."}}, {"text": "Bombay Harijan Temple Entry Act, 1947", "label": "STATUTE", "start_char": 9342, "end_char": 9379, "source": "regex", "metadata": {}}, {"text": "23rd November, 1947", "label": "DATE", "start_char": 9468, "end_char": 9487, "source": "ner", "metadata": {"in_sentence": "(Hereinafter called 'the former Act') had come into force on the 23rd November, 1947."}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 9705, "end_char": 9714, "source": "ner", "metadata": {"in_sentence": "They have filed the present suit on behalf of themselves and on behalf of the Satsangis of the Northern Diocese of the sect at Ahmedabad."}}, {"text": "Muldas Bhudardas B Vaishya", "label": "RESPONDENT", "start_char": 9757, "end_char": 9783, "source": "ner", "metadata": {"in_sentence": "1, Muldas Bhudardas B Vaishya, who is the President of the Maha Gujarat Dalit Sangh\n\nat Ahmedabad, intended to assert the rights of the non-Satsangi Harijans to enter the temples of the Swaminarayan sect situated in the Northern Diocese at Ahmedabad in exercise of the legal rights conferred on them by s. 3 of the former Act of 1947."}}, {"text": "Maha Gujarat Dalit Sangh", "label": "ORG", "start_char": 9813, "end_char": 9837, "source": "ner", "metadata": {"in_sentence": "1, Muldas Bhudardas B Vaishya, who is the President of the Maha Gujarat Dalit Sangh\n\nat Ahmedabad, intended to assert the rights of the non-Satsangi Harijans to enter the temples of the Swaminarayan sect situated in the Northern Diocese at Ahmedabad in exercise of the legal rights conferred on them by s. 3 of the former Act of 1947."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 10057, "end_char": 10061, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Harijan Temple Entry Act, 1947", "statute": "the Bombay Harijan Temple Entry Act, 1947"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 10092, "end_char": 10101, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Harijan Temple Entry Act, 1947", "statute": "the Bombay Harijan Temple Entry Act, 1947"}}, {"text": "Bombay", "label": "GPE", "start_char": 10404, "end_char": 10410, "source": "ner", "metadata": {"in_sentence": "To this suit the appellants had impleaded five other respondents, amongst whom was included the Province of Bombay as respondent No."}}, {"text": "18th July, 1949", "label": "DATE", "start_char": 10504, "end_char": 10519, "source": "ner", "metadata": {"in_sentence": "4, under the order of the Court at a later stage of the proceedings on the 18th July, 1949."}}, {"text": "Sree Nar Narayan Dev", "label": "OTHER_PERSON", "start_char": 10598, "end_char": 10618, "source": "ner", "metadata": {"in_sentence": "In their plaint, the appellants had alleged that the Swaminarayan temple of Sree Nar Narayan Dev of Ahmedabad and all the temples subordinate thereto are not temples within the meaning of the former Act."}}, {"text": "Act was amended by Bombay Act", "label": "STATUTE", "start_char": 11731, "end_char": 11760, "source": "regex", "metadata": {}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 11792, "end_char": 11813, "source": "regex", "metadata": {}}, {"text": "26th January, 1950", "label": "DATE", "start_char": 11837, "end_char": 11855, "source": "ner", "metadata": {"in_sentence": "77 of 1948; and later, the Constitution of India came into force on the 26th January, 1950."}}, {"text": "30th November, 1950", "label": "DATE", "start_char": 11950, "end_char": 11969, "source": "ner", "metadata": {"in_sentence": "H As a result of these events, the appellants applied for an amendment of the plaint on the 30th November, 1950, and the said application was granted by the learned trial Judge."}}, {"text": "State of Bombav", "label": "ORG", "start_char": 12324, "end_char": 12339, "source": "ner", "metadata": {"in_sentence": "77 of 1948; and they urged that the former Act was ultra vires the powers of the State of Bombav inasmuch as it was inconsistent with the Constitution and the fndamental rights guaranteed therein."}}, {"text": "Swaminarayan sect", "label": "PETITIONER", "start_char": 12475, "end_char": 12492, "source": "ner", "metadata": {"in_sentence": "It was contended by them that the Swaminarayan sect was an institution distinct and different from Hindu religion, and, therefore, the former Act as amended could not apply to or affect the temples of the said sect.", "canonical_name": "Swaminarayan Sampradaya"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13007, "end_char": 13011, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Bombay", "label": "RESPONDENT", "start_char": 13740, "end_char": 13755, "source": "ner", "metadata": {"in_sentence": "the State of Bombay, and respondents 5 and 6 filed no written stafements."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 14098, "end_char": 14102, "source": "regex", "metadata": {"statute": null}}, {"text": "24th September, 1951", "label": "DATE", "start_char": 15269, "end_char": 15289, "source": "ner", "metadata": {"in_sentence": "This judgment was pronounced on the 24th September, 1951."}}, {"text": "8th March, 1957", "label": "DATE", "start_char": 15795, "end_char": 15810, "source": "ner", "metadata": {"in_sentence": "The appeal thus presented by the two respondents was heard by the High Court on the 8th March, 1957."}}, {"text": "Daundkar", "label": "OTHER_PERSON", "start_char": 16703, "end_char": 16711, "source": "ner", "metadata": {"in_sentence": "1 had authorised the Government Pleader to file an appeal on his behalf, whereas the appeal had actually been filed by Mr.\n\nDaundkar who was then the Assistant Government Pleader."}}, {"text": "Bombay Legislature", "label": "ORG", "start_char": 18649, "end_char": 18667, "source": "ner", "metadata": {"in_sentence": "The Higb Ccurt, however, noticed that after the trial court pronounced its judgments, the Bombay Legislature had passed the Act (No."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 18796, "end_char": 18800, "source": "regex", "metadata": {"statute": null}}, {"text": "Th former Act had given place to the Act and it now became necessary to consider whether the Act", "label": "STATUTE", "start_char": 18937, "end_char": 19033, "source": "regex", "metadata": {}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 19258, "end_char": 19285, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "25th March, 1957", "label": "DATE", "start_char": 19401, "end_char": 19417, "source": "ner", "metadata": {"in_sentence": "Accordingly, a notice was issued to the Advocate- General and the appeal was placed before the High Court on the 25th March, 1957 again."}}, {"text": "Art. 25(2)", "label": "PROVISION", "start_char": 19671, "end_char": 19681, "source": "regex", "metadata": {"linked_statute_text": "Th former Act had given place to the Act and it now became necessary to consider whether the Act", "statute": "Th former Act had given place to the Act and it now became necessary to consider whether the Act"}}, {"text": "Venibhai", "label": "WITNESS", "start_char": 19892, "end_char": 19900, "source": "ner", "metadata": {"in_sentence": "1 examined two witnesses Venibhai and Kcshavlal."}}, {"text": "Kcshavlal", "label": "WITNESS", "start_char": 19905, "end_char": 19914, "source": "ner", "metadata": {"in_sentence": "1 examined two witnesses Venibhai and Kcshavlal."}}, {"text": "Keshavlal", "label": "OTHER_PERSON", "start_char": 19917, "end_char": 19926, "source": "ner", "metadata": {"in_sentence": "Keshavlal failed to appear for his final cross examination despite adjournments even thougb the trial court had appointed a Commission to record his evidence."}}, {"text": "YAGNAPURUSHADJI V. MULDAS", "label": "JUDGE", "start_char": 20159, "end_char": 20184, "source": "ner", "metadata": {"in_sentence": "YAGNAPURUSHADJI V. MULDAS (Ga; endragadkar, C.l.)"}}, {"text": "Satsang", "label": "PETITIONER", "start_char": 20751, "end_char": 20758, "source": "ner", "metadata": {"in_sentence": "The learned trial Judge, however, adhered to the view already expressed by hls predecessor before remand that the congregation of Satsang constituted a section of the Hindu community; and so he found that it was not open to the appellants to contend before rum that the followers of the Swaminarayan sect c were not a section of the Hindu community.", "canonical_name": "Satsangis"}}, {"text": "Art. 25(2)", "label": "PROVISION", "start_char": 21264, "end_char": 21274, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "24th March 1958", "label": "DATE", "start_char": 21354, "end_char": 21369, "source": "ner", "metadata": {"in_sentence": "This D finding was recorded by the trial Judge on the 24th March 1958."}}, {"text": "Swaminarayan E sect", "label": "ORG", "start_char": 21612, "end_char": 21631, "source": "ner", "metadata": {"in_sentence": "On this occasion, it was urged before the High Court on behalf of the appellants that the members belonging to the Swaminarayan E sect did not profess the Hindu religion and, therefore, their temples could not be said to be Hindu temples."}}, {"text": "Swaminarayan sect", "label": "ORG", "start_char": 21839, "end_char": 21856, "source": "ner", "metadata": {"in_sentence": "It was, however, conceded on their behalf that in case the High Court came to the conclusion that the Swaminarayan sect was not a different religion from Hinduism, the conclusion could not be resisted that the temples in suit would be Hindu religious institutions and also F places of public worship within the me-aning of s. 2 of the Act."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 22060, "end_char": 22064, "source": "regex", "metadata": {"statute": null}}, {"text": "Satsangis", "label": "PETITIONER", "start_char": 22325, "end_char": 22334, "source": "ner", "metadata": {"in_sentence": "It was urged by the appellants that the Satsangis who worship at the Swaminarayan temple may be (; Hindus for cultural and social purposes, but they are not persons professing Hindu religion, and as such they do not form a section, class or sect or denomination of Hindu religion.", "canonical_name": "Satsangis"}}, {"text": "Swaminarayan", "label": "PETITIONER", "start_char": 22680, "end_char": 22692, "source": "ner", "metadata": {"in_sentence": "It was argued that Swaminarayan, the founder of the sect, considered himself as the Supreme God, and as such, the H sect that believes in the divinity of Swaminarayan cannot be assimilated to the followers of Hindu religion.", "canonical_name": "Swaminarayan Sampradaya"}}, {"text": "Articles 25 and 26", "label": "PROVISION", "start_char": 24746, "end_char": 24764, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "V. 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Desai who appeared\n\nA for the appellants before us."}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 25570, "end_char": 25575, "source": "ner", "metadata": {"in_sentence": "Mr.· Desai contends that the High Court was in error in treating as competent the appeal preferred by respondent No."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 26388, "end_char": 26415, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 29435, "end_char": 29439, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 29836, "end_char": 29840, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 3, 4 & 5", "label": "PROVISION", "start_char": 30811, "end_char": 30828, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 31267, "end_char": 31276, "source": 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"source": "ner", "metadata": {"in_sentence": "The historical and etymological genesis of the word \"Hindu\" has given rise to a controversy ainongst indologists; but the view generally accepted H by ocholars appears to be that the word \"Hindu\" is derived from the river Sindhu otherwise known as Indus which flows from the Punjab. '"}}, {"text": "Monier\n\nWilliams", "label": "OTHER_PERSON", "start_char": 49227, "end_char": 49243, "source": "ner", "metadata": {"in_sentence": "That part of the great Aryan race\", says Monier\n\nWilliams, \"which immigrated from Central Asia, through the A mountain passes into India, settled first in the districts near the river Sindhu (now called the .Indus).", "canonical_name": "Monier\n\nWilliams"}}, {"text": "Central Asia", "label": "GPE", "start_char": 49268, "end_char": 49280, "source": "ner", "metadata": {"in_sentence": "That part of the great Aryan race\", says Monier\n\nWilliams, \"which immigrated from Central Asia, through the A mountain passes into India, settled first in the districts near the river Sindhu (now called the .Indus)."}}, {"text": "India", "label": "GPE", "start_char": 49317, "end_char": 49322, "source": "ner", "metadata": {"in_sentence": "That part of the great Aryan race\", says Monier\n\nWilliams, \"which immigrated from Central Asia, through the A mountain passes into India, settled first in the districts near the river Sindhu (now called the .Indus)."}}, {"text": "Radhakrishnan", "label": "OTHER_PERSON", "start_char": 49853, "end_char": 49866, "source": "ner", "metadata": {"in_sentence": "Radhakrishnan has observed; \"The Hindu civilization is so called, since its original c founders or earliest followers occupied the territory drained by the Sindhu (the Indus) river system corresponding to the North West Frontier Province and the Punjab.", "canonical_name": "G Radhakrishnan"}}, {"text": "North West Frontier Province", "label": "GPE", "start_char": 50062, "end_char": 50090, "source": "ner", "metadata": {"in_sentence": "Radhakrishnan has observed; \"The Hindu civilization is so called, since its original c founders or earliest followers occupied the territory drained by the Sindhu (the Indus) river system corresponding to the North West Frontier Province and the Punjab."}}, {"text": "G Radhakrishnan", "label": "OTHER_PERSON", "start_char": 51280, "end_char": 51295, "source": "ner", "metadata": {"in_sentence": "Having posed these questions which disturbed foreigners when they think of Hinduism, Dr.\n\nG Radhakrishnan has explained how Hinduism has steadily absorbed the customs and ideas of peoples with whom it has come into contact and has thus been able to maintain its supremacy and it~ youth.", "canonical_name": "G Radhakrishnan"}}, {"text": "Monier Williams", "label": "OTHER_PERSON", "start_char": 51687, "end_char": 51702, "source": "ner", "metadata": {"in_sentence": "Aboriginal tribea,\n\n(I) \"Hinduism\"' by Monier Williams, p. 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"end_char": 54488, "source": "ner", "metadata": {"in_sentence": "3} \"Indian Philosophy\" by Dr. Radhakrlshnan, Vol.", "canonical_name": "G Radhakrishnan"}}, {"text": "Shankar", "label": "OTHER_PERSON", "start_char": 55905, "end_char": 55912, "source": "ner", "metadata": {"in_sentence": "Shankar, Ramanuja, Vallabha and Madhva all based their philosophic concepts on what they regarded to be the synthesis between the Upanishads, the Brahmasutras and the Bhagavad Gita."}}, {"text": "Vallabha", "label": "OTHER_PERSON", "start_char": 55924, "end_char": 55932, "source": "ner", "metadata": {"in_sentence": "Shankar, Ramanuja, Vallabha and Madhva all based their philosophic concepts on what they regarded to be the synthesis between the Upanishads, the Brahmasutras and the Bhagavad Gita.", "canonical_name": "F Vallabhacharya"}}, {"text": "Madhva", "label": "OTHER_PERSON", "start_char": 55937, "end_char": 55943, "source": "ner", "metadata": {"in_sentence": "Shankar, Ramanuja, Vallabha and Madhva all based their philosophic concepts on what they regarded to be the synthesis between the Upanishads, the Brahmasutras and the Bhagavad Gita."}}, {"text": "Bhagavad Gita", "label": "OTHER_PERSON", "start_char": 56072, "end_char": 56085, "source": "ner", "metadata": {"in_sentence": "Shankar, Ramanuja, Vallabha and Madhva all based their philosophic concepts on what they regarded to be the synthesis between the Upanishads, the Brahmasutras and the Bhagavad Gita.", "canonical_name": "Bhagavad Gita"}}, {"text": "Max Muller", "label": "OTHER_PERSON", "start_char": 57327, "end_char": 57337, "source": "ner", "metadata": {"in_sentence": "Max Muller who was a great oriental scholar of his time was impressed by this comprehensive and all-pervasive aspect of the sweep of Hindu philosophy."}}, {"text": "Vijnanabhiksu", "label": "OTHER_PERSON", "start_char": 57675, "end_char": 57688, "source": "ner", "metadata": {"in_sentence": "Referring to the six systems known to Hindu philosophy, Max Muller 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"ner", "metadata": {"in_sentence": "In the Hindu Pantheon the first gods that were worshipp.ed in Vedic times were mainly Indra, Varuna, Vayu and Agni."}}, {"text": "Varuna", "label": "OTHER_PERSON", "start_char": 60491, "end_char": 60497, "source": "ner", "metadata": {"in_sentence": "In the Hindu Pantheon the first gods that were worshipp.ed in Vedic times were mainly Indra, Varuna, Vayu and Agni."}}, {"text": "Vayu", "label": "OTHER_PERSON", "start_char": 60499, "end_char": 60503, "source": "ner", "metadata": {"in_sentence": "In the Hindu Pantheon the first gods that were worshipp.ed in Vedic times were mainly Indra, Varuna, Vayu and Agni."}}, {"text": "Agni", "label": "OTHER_PERSON", "start_char": 60508, "end_char": 60512, "source": "ner", "metadata": {"in_sentence": "In the Hindu Pantheon the first gods that were worshipp.ed in Vedic times were mainly Indra, Varuna, Vayu and Agni."}}, {"text": "Brahma", "label": "OTHER_PERSON", "start_char": 60522, "end_char": 60528, "source": "ner", "metadata": {"in_sentence": "Later, Brahma, Vishnu and ahesh came to be worshipped.", "canonical_name": "Brahma-vidya"}}, {"text": "Vishnu", "label": "OTHER_PERSON", "start_char": 60530, "end_char": 60536, "source": "ner", "metadata": {"in_sentence": "Later, Brahma, Vishnu and ahesh came to be worshipped."}}, {"text": "ahesh", "label": "OTHER_PERSON", "start_char": 60541, "end_char": 60546, "source": "ner", "metadata": {"in_sentence": "Later, Brahma, Vishnu and ahesh came to be worshipped."}}, {"text": "Rama", "label": "OTHER_PERSON", "start_char": 60591, "end_char": 60595, "source": "ner", "metadata": {"in_sentence": "In course\n\nof time, Rama and Krishna secured a place of pride in lhe Hindu\n\nPantheon, and gradually as different philosophic concepts held c sway in different sects and in different sections of the Hindu -community, a large number of gods were added, with the result that today, the Hindu Pantheon presents the spectacle of a very large number of gods who are worshipped by different sections of the Hindus.", "canonical_name": "Ramanuja"}}, {"text": "Buddha", "label": "PETITIONER", "start_char": 61236, "end_char": 61242, "source": "ner", "metadata": {"in_sentence": "Buddha started Buddhism; Mahavir founded Jainism; Basava bepame the founder of Lingayat religion, Dnvaneshwar and Tukaram initiated the Varakari cult; Guru Nank inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bbakti cult; and as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion flowered into its most atlractive, progressive and dynamic form."}}, {"text": "Mahavir", "label": "OTHER_PERSON", "start_char": 61261, "end_char": 61268, "source": "ner", "metadata": {"in_sentence": "Buddha started Buddhism; Mahavir founded Jainism; Basava bepame the founder of Lingayat religion, Dnvaneshwar and Tukaram initiated the Varakari cult; Guru Nank inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bbakti cult; and as a result of the 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inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bbakti cult; and as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion flowered into its most atlractive, progressive and dynamic form."}}, {"text": "Dayananda", "label": "OTHER_PERSON", "start_char": 61415, "end_char": 61424, "source": "ner", "metadata": {"in_sentence": "Buddha started Buddhism; Mahavir founded Jainism; Basava bepame the founder of Lingayat religion, Dnvaneshwar and Tukaram initiated the Varakari cult; Guru Nank inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bbakti cult; and as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion flowered into its most atlractive, progressive and dynamic form."}}, {"text": "Chaitanya", "label": "OTHER_PERSON", "start_char": 61449, "end_char": 61458, "source": "ner", "metadata": {"in_sentence": "Buddha started Buddhism; Mahavir founded Jainism; Basava bepame the founder of Lingayat religion, Dnvaneshwar and 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bepame the founder of Lingayat religion, Dnvaneshwar and Tukaram initiated the Varakari cult; Guru Nank inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bbakti cult; and as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion flowered into its most atlractive, progressive and dynamic form."}}, {"text": "Tilak", "label": "OTHER_PERSON", "start_char": 63494, "end_char": 63499, "source": "ner", "metadata": {"in_sentence": "Tilak faced this complex and difficult problem of defining or at least describing adequately Hindu religion and he evolved a working formula which may be regarded as fairly adequate and satisfactory."}}, {"text": "Toynbee", "label": "OTHER_PERSON", "start_char": 64155, "end_char": 64162, "source": "ner", "metadata": {"in_sentence": "It is somewhat remarkable that this broad sweep of Hindu religion has been eloquently described by Toynbee."}}, {"text": "Art. 25", "label": "PROVISION", "start_char": 64939, "end_char": 64946, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Hindu Marriage Act, 1955", "label": "STATUTE", "start_char": 65532, "end_char": 65556, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 65562, "end_char": 65588, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Hindu Minority and Guardianship Act, 1956", "label": "STATUTE", "start_char": 65594, "end_char": 65635, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Maintenance Act, 1956", "label": "STATUTE", "start_char": 65670, "end_char": 65691, "source": "regex", "metadata": {}}, {"text": "Section 2", "label": "PROVISION", "start_char": 65821, "end_char": 65830, "source": "regex", "metadata": {"linked_statute_text": "Maintenance Act, 1956", "statute": "Maintenance Act, 1956"}}, {"text": "Hindu Marriage Act", "label": "STATUTE", "start_char": 65838, "end_char": 65856, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Swaminarayan G", "label": "PETITIONER", "start_char": 67087, "end_char": 67101, "source": "ner", "metadata": {"in_sentence": "In deciding this question, it is necessary to consider broadly the philosophic and theological tenets of Swaminarayan G and the characteristics which marked the followers of Swami narayan who are otherwise known as Satsangis.", "canonical_name": "Swaminarayan Sampradaya"}}, {"text": "Swami narayan", "label": "PETITIONER", "start_char": 67156, "end_char": 67169, "source": "ner", "metadata": {"in_sentence": "In deciding this question, it is necessary to consider broadly the philosophic and theological tenets of Swaminarayan G and the characteristics which marked the followers of Swami narayan who are otherwise known as Satsangis.", "canonical_name": "Swaminarayan Sampradaya"}}, {"text": "Calcutta", "label": "GPE", "start_char": 67754, "end_char": 67762, "source": "ner", "metadata": {"in_sentence": "~\n\nstudent of Indian sacred literature for more than forty years,\" observed Monier Williams \"and having twice travelled over every part of India, from Bombay to Calcutta, from Cashmere to Ceylon, I may possibly hope to make a dry subject fairly attractive without any serious sacrifice of scientific accuracy, while at the same time it will be my earnest endeavour to hold the scales impartially between antagonistic religious systems and as far as possible to do justice to the amount of truth that each may contain\" (P. 1)."}}, {"text": "Cashmere", "label": "GPE", "start_char": 67769, "end_char": 67777, "source": "ner", "metadata": {"in_sentence": "~\n\nstudent of Indian sacred literature for more than forty years,\" observed Monier Williams \"and having twice travelled over every part of India, from Bombay to Calcutta, from Cashmere to Ceylon, I may possibly hope to make a dry 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"OTHER_PERSON", "start_char": 68644, "end_char": 68655, "source": "ner", "metadata": {"in_sentence": "The original name of Swaminarayan was Sahajananda."}}, {"text": "Chapai", "label": "GPE", "start_char": 68715, "end_char": 68721, "source": "ner", "metadata": {"in_sentence": "He was born at Chapai, a village 120 miles to the North-west of Lucknow, about the year 1780."}}, {"text": "Lucknow", "label": "GPE", "start_char": 68764, "end_char": 68771, "source": "ner", "metadata": {"in_sentence": "He was born at Chapai, a village 120 miles to the North-west of Lucknow, about the year 1780."}}, {"text": "Vallabhacharya", "label": "OTHER_PERSON", "start_char": 68926, "end_char": 68940, "source": "ner", "metadata": {"in_sentence": "He was born to V aishnava parents, but early in his career he was \"disgusted\n\nwith the manner of life of the so-called followers of Vallabhacharya, whose precepts and practice were utterly at variance, and especially with the licentious habits of the Bombay 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70123, "source": "ner", "metadata": {"in_sentence": "Swaminarayan then retired to the H secluded village of Wartal, where he erected a temple to Narayana (otherwise Krishna, or Vishnu, as the Supreme Being) associated with the goddess Lakshmi."}}, {"text": "Narayana", "label": "PETITIONER", "start_char": 70154, "end_char": 70162, "source": "ner", "metadata": {"in_sentence": "Swaminarayan then retired to the H secluded village of Wartal, where he erected a temple to Narayana (otherwise Krishna, or Vishnu, as the Supreme Being) associated with the goddess Lakshmi.", "canonical_name": "Narayana"}}, {"text": "Lakshmi", "label": "OTHER_PERSON", "start_char": 70244, "end_char": 70251, "source": "ner", "metadata": {"in_sentence": "Swaminarayan then retired to the H secluded village of Wartal, where he erected a temple to Narayana (otherwise Krishna, or Vishnu, as the Supreme Being) associated with the goddess Lakshmi."}}, {"text": "Deshvibhaga Lekh", "label": "OTHER_PERSON", "start_char": 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71112, "source": "ner", "metadata": {"in_sentence": "from Calcutta to Navangar and established dioceses, the northern one with the temple of Nar Narayan at Ahmedabad, and the southern one which included the temple of C Lakshminarayan at Wartal."}}, {"text": "Ayodhyaprasad", "label": "OTHER_PERSON", "start_char": 71197, "end_char": 71210, "source": "ner", "metadata": {"in_sentence": "To preside over these two dioceses Swaminarayan adopted his two nephews Ayodhyaprasad and Raghuvir respectively."}}, {"text": "Raghuvir", "label": "OTHER_PERSON", "start_char": 71215, "end_char": 71223, "source": "ner", "metadata": {"in_sentence": "To preside over these two dioceses Swaminarayan adopted his two nephews Ayodhyaprasad and Raghuvir respectively."}}, {"text": "Constitution of the Swaminarayan sect", "label": "PETITIONER", "start_char": 71420, "end_char": 71457, "source": "ner", "metadata": {"in_sentence": "The Constitution of the Swaminarayan sect and its tenets and practices are collected in four different scriptures of the faith viz.,"}}, {"text": "Shatanandswami", "label": "OTHER_PERSON", "start_char": 71824, "end_char": 71838, "source": "ner", "metadata": {"in_sentence": "(I) the \"Lekh\" to which we have just referred;\n\n(2) the \"Shikahapatri\" which was originally written by Swaminarayan himself in about 1826 A.D.; the original manuscript docs not E appear to be available, but the Shikshapatri was subsequently rendered into Sanskrit verses by Shatanandswami under the direc tions of Swaminarayan himself."}}, {"text": "Nityanand", "label": "OTHER_PERSON", "start_char": 72043, "end_char": 72052, "source": "ner", "metadata": {"in_sentence": "This book was later translated into Gujarati by another disciple named Nityanand."}}, {"text": "Shathnand", "label": "OTHER_PERSON", "start_char": 72360, "end_char": 72369, "source": "ner", "metadata": {"in_sentence": "This Shikshapatri is held in high reverence by the F followers of the faith as a prayer book and it contains summary of Swaminarayan's instructions and principles which have to be followed by his disciples in their lives; (3) the \"Satsangijiwan\" which consists of five parts and is written in Sanskrit by Shathnand during the lifetime of Swaminarayan."}}, {"text": "Shikshapatri", "label": "OTHER_PERSON", "start_char": 72529, "end_char": 72541, "source": "ner", "metadata": {"in_sentence": "Shikshapatri has been bodily incorporated in this work; ( 4) the \"Vachanamrit\" which is a collection of Swaminarayan's sermons in Gujarati."}}, {"text": "Kaira", "label": "GPE", "start_char": 73205, "end_char": 73210, "source": "ner", "metadata": {"in_sentence": "It is interesting to recall that before Monier Williams wrote his Chapter on Swaminarayan sect, he visited the Wartal temple in company with the Collector of Kaira on the day of the Purnima, or full moon of the month of Karttik which is regarded as the most popular festival of the whole year by the Swaminarayan sect."}}, {"text": "Radha", "label": "OTHER_PERSON", "start_char": 74372, "end_char": 74377, "source": "ner", "metadata": {"in_sentence": "Those who are initiated into the proper worship of Krishna should always D wear on their necks two rosaries made of Tutsi wood, one for Krishna and the other for Radha."}}, {"text": "Krishnan saranam mama", "label": "OTHER_PERSON", "start_char": 74539, "end_char": 74560, "source": "ner", "metadata": {"in_sentence": "After engaging in mental worship, let them reverently bow down before the pictures of Radha and Krishna, and repeat the eight-syllabled prayer to Krishna (Sri Krishnan saranam mama, 'Great Krishna is my soul's refuge') as many times as possible."}}, {"text": "Siva", "label": "PETITIONER", "start_char": 75134, "end_char": 75138, "source": "ner", "metadata": {"in_sentence": "Vishnu, Siva, Ganapati (or Ganesa)."}}, {"text": "Ganapati", "label": "PETITIONER", "start_char": 75140, "end_char": 75148, "source": "ner", "metadata": {"in_sentence": "Vishnu, Siva, Ganapati (or Ganesa)."}}, {"text": "Ganesa", "label": "OTHER_PERSON", "start_char": 75153, "end_char": 75159, "source": "ner", "metadata": {"in_sentence": "Vishnu, Siva, Ganapati (or Ganesa)."}}, {"text": "Parvati", "label": "PETITIONER", "start_char": 75163, "end_char": 75170, "source": "ner", "metadata": {"in_sentence": "Parvati, and the Sun; these five deities should be honoured with worship."}}, {"text": "Sun", "label": "RESPONDENT", "start_char": 75180, "end_char": 75183, "source": "ner", "metadata": {"in_sentence": "Parvati, and the Sun; these five deities should be honoured with worship."}}, {"text": "Narayana", "label": "PETITIONER", "start_char": 75238, "end_char": 75246, "source": "ner", "metadata": {"in_sentence": "Narayana and Siva should be equally regarded as part of one and same Supreme Spirit, since both have been declared in the Vedas to be forms of Brahma.", "canonical_name": "Narayana"}}, {"text": "Param Brahma", "label": "OTHER_PERSON", "start_char": 75578, "end_char": 75590, "source": "ner", "metadata": {"in_sentence": "That Being, known by various namCi ---such as the glorious Krishna, Param Brahma, Bhagavan, Purushottama-the cause of all manifestations, is to be adored by us as our one chosen deity."}}, {"text": "Bhagavan", "label": "OTHER_PERSON", "start_char": 75592, "end_char": 75600, "source": "ner", "metadata": {"in_sentence": "That Being, known by various namCi ---such as the glorious Krishna, Param Brahma, Bhagavan, Purushottama-the cause of all manifestations, is to be adored by us as our one chosen deity."}}, {"text": "Purushottama", "label": "RESPONDENT", "start_char": 75602, "end_char": 75614, "source": "ner", "metadata": {"in_sentence": "That Being, known by various namCi ---such as the glorious Krishna, Param Brahma, Bhagavan, Purushottama-the cause of all manifestations, is to be adored by us as our one chosen deity."}}, {"text": "Gujarat", "label": "GPE", "start_char": 76212, "end_char": 76219, "source": "ner", "metadata": {"in_sentence": "A pilgrimage to the Tirthas, or holy places, of which Dwarika\n\n(Krishna's city in Gujarat) is the chief, should be performed B according to rule."}}, {"text": "Bombay Presidency", "label": "GPE", "start_char": 76681, "end_char": 76698, "source": "ner", "metadata": {"in_sentence": "The Gazetteer of the Bombay Presidency has summarised the teachings embodied in the Shikshapatri in this way :-\n\n'The book of precept5 strictly prohibits the destruction of animal life; promiscuous intercourse with the other sex; use of animal food and intoxicant liquors and drugs on any occasion, suicide, theft and robbery; false accusation against a fellow-man, blasphemy; partaking of food with low caste people; caste pollution; company of atheists and heretics and other practices which might counteract the effect of the founder's teachings\". ("}}, {"text": "Swami Sahajanand", "label": "OTHER_PERSON", "start_char": 77550, "end_char": 77566, "source": "ner", "metadata": {"in_sentence": "with the novice offering a palmful of water which he throws on the ground at the feet of the Acharya saying : I give over to Swami Sahajanand my mind, body, wealth, and sins of (all) births, 'Man', tan, dhan, and janmana pap."}}, {"text": "Krishnastwam gatirmama", "label": "OTHER_PERSON", "start_char": 77693, "end_char": 77715, "source": "ner", "metadata": {"in_sentence": "He is then given the sacred formula 'Sri Krishnastwam gatirmama, Shri Krishna thou art my refuge."}}, {"text": "Acharya", "label": "OTHER_PERSON", "start_char": 77801, "end_char": 77808, "source": "ner", "metadata": {"in_sentence": "The novice then pays at least half a rupee to the Acharya."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 78251, "end_char": 78265, "source": "ner", "metadata": {"in_sentence": "YA(iNAPURUSHADJI V. MULDAS (Gajendragadkar, C.J.) 271\n\nperfect disciple can be made only after receiving the final formula from one of the two Acharyas."}}, {"text": "F Vallabhacharya", "label": "OTHER_PERSON", "start_char": 80002, "end_char": 80018, "source": "ner", "metadata": {"in_sentence": "Acceptance of the Vedas with reverence E recognition of the fact that the path of Bhakti or devotion leads to Moksha, and insistence on devotion to Lord Krishna unambiguously and unequivocally proclaim that Swaminarayan was a lfmdu saint who was determined to remove the corrupt practices which had crept into the lives of the preachers and followers of F Vallabhacharya, and who wanted to restore the Hindu religion to its original glory and purity.", "canonical_name": "F Vallabhacharya"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 81839, "end_char": 81843, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 82471, "end_char": 82475, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhagvad-Gita", "label": "OTHER_PERSON", "start_char": 82614, "end_char": 82626, "source": "ner", "metadata": {"in_sentence": "The fact that Swaminarayan himself i~ worshipped in these temples is not inconsistent with the belief which the teachings of Bhagvad-Gita have traditionally created in all Hindu minds.", "canonical_name": "Bhagavad Gita"}}, {"text": "Bhagvad-G", "label": "ORG", "start_char": 82692, "end_char": 82701, "source": "ner", "metadata": {"in_sentence": "According to the Bhagvad-G:ta, whenever religion is on the decline and irreligion is F in the ascendance, God is born to restore the balance of religion and guide the destiny of the human race towards salvation. ("}}, {"text": "Bhagavad-Gita", "label": "OTHER_PERSON", "start_char": 84533, "end_char": 84546, "source": "ner", "metadata": {"in_sentence": "Didn't the Bhagavad-Gita say : \"even those who profess other religions and worship their gods in the manner prescribed by their religion, ultimately worship me and reach me.\"(')", "canonical_name": "Bhagavad Gita"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 85006, "end_char": 85010, "source": "regex", "metadata": {"statute": null}}, {"text": "SIJPREME COURT", "label": "COURT", "start_char": 86239, "end_char": 86253, "source": "ner", "metadata": {"in_sentence": "SIJPREME COURT REPORTS f 1966] 3 S.C.R.\nOf Hindu religion and of the real significance of the tenets and A philosophy taught by Swaminarayan himself."}}, {"text": "Art. 17", "label": "PROVISION", "start_char": 86855, "end_char": 86862, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}]}
{"document_id": "1966_3_275_282_EN", "year": 1966, "text": "• ill ..\n\nsm. DAYAWATI AND ANOTHER v.\n\nINDERJIT AND OTHERS\n\nI anuary 14, 1966\n\n[K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACH>.WAT, JJ.l,\n\nUsurloW1 Loans Act, 1918 (10 of 1918), s. 3, as amended bys. 5 of Punjab Rellej oj Indebtedness Act-Section 6 of latter Act making s. S applicable to \"all suitJ pending or to be instituted after the COrnm<!lfC<- ment of this Acf'-Appeal filed against judgment in suit-Whether suit 'pending' within meaning of s. 6.\n\nInterest in excess of 7! per cent was awarded to the appellants by the trial court in a mortgage suit against the respondents. The respondents filed before the High Court, wbere an appeal by them against the decree of the trial court was pending an application under s. 3 of the Usurious Loans Act, 1918 as amended by s. S of the Punjab Relief of Indebtedness\n\nAct.\n\nThey claimed, by virtue of the latter provision, that interest in excels of 7i per cent could not be awarded in the suit.\n\nThe Hilh Court having accepted the contention, the appellants came to this Court by special leave and contended that an appeal having been filed against the trial court's judgment in the suit, the said suit could not be said to be pending' within tho meaning of s. 6 of the Punjab Act on the relevant date, and therefore s. S would not apply .\n\nHELD: (i) Tho word 'suit' includes an appeal from the judgment in the suit.\n\nThe only difference between a suit and an appeal is that an appeal \"only reviews and corrects the proceedin8\" in a cause already constituted but dO<lS not create the cause.\" In the present Act the intention is to g;..., relief in respect of excessive interest in a suit which is pendina and a preliminary decree in a suit of this kind does not terminate the suit. The appeal is a part of the cause because the preliminary decree which emerges from the appeal will be the decree, which can become a final decree.\n\n(281 D-F)\n\n(ii) The words of s. 6 speak of a suit pending on the commencement of the Act and it means a live suit whether in tne court of first instance or an appeal court where the judgment of the court of first instance is being considered. It only excludes those suits in which nothina further needs to be done in relation to the rights and claim litigated, because an executable decree which may not be reopened is already in existence.\n\nThe decision of the High Court was right in applying s. 3 of the Usurious Loans Act (as amended) to the case. (282 A, BJ\n\n(iii) Ordinarily a court of appeal cannot take into account a new law, brought into existence after the Judgment appealed from ha• been rendered, because the rights of the litigants in an appeal are determined under the law in force at the dste of the suit. Matters of procedure are however different and the law affecting procedure is always retr05ive.\n\nBut it does not mean that there is an absolute rule of inviolab11ity of mbstantive rights.\n\nIf the new law speaks in language, which expressly or by clear lntendment, takes in even pending matters, the court of trial as well as the court of appeal may give effect to such a law even afler the judgment of the court of first instance, The distinction between laws affecting procedure and tlto•e affecting vested rights does not matter wbea the court is)nvited by law lo take away from a plaintil!, what he has obtal!led under a judgment. (280 B-Hl\n\n276 SllPRHIF COURT REPORTS\n\n[ 1966] 3 S.C.R.\n\nQuilter v. Mapleson, (1882)9 Q.B.D. 672, Slavin v. Falrbrass (1919)88 ,.\\ LJ. K.B. 1004 and Mukerjee (K.C.) v. Mst. Ramratan, 63 I.A. 47, refer red to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 246 of 1964.\n\nAppeal by special leave from the judgment and decree dated October 15, 1959 of the Punjab High Court (Circuit Bench) at Delhi in R.F.A. No. 1-D of 1954.\n\nS. T. Desai, D. R. Prem and Mohan Beharilal, for the appel !ants.\n\nN. C. Chatterjee, and H. P. Wanchoo, for respondents Nos. to 5.\n\nTiry11gi Narain, for respondent No. 6.\n\nThe Judgment of the Court was delivered by\n\nHidayalullah, J. In this appeal by special leave against the judgment and decree of the Punjab High Court dated October 15, D 1959 the only question is whether, in the facts to be stated presently, the High Court was right in reducing interest m a preli minary mortgage decree dated August 12, 1953 by applying ss. 5 and 6 of the Punjab Relief of Indebtedness Act which were extended to Delhi on June 8, 1956.\n\nOn January 17, 1946, Hazarilal (predecessor of respondents 1 to 5) and one Jagat Narain (respondent 6) executed a simple mortgage deed for Rs. 50,000 with interest at 9% per annum or in default of payment of interest for 3 months at Re. 1 per cent per month for the period of default.\n\nAs the mortgagors made default in payment of interest and also did not pay anything out of the mortgaged amount a suit was filed for enforcement of the mort!!age by sale of properties.\n\nThe claim was for Rs. 76,692/9/8, by calculating interest at 9 per cent per annum for the first 3 months and at 12 per cent per annum till institution of the suit and allowing credit for Rs. 14,000 as repayment. The defendants admitted the mortgage and the consideration but pleaded that the rate of interest was both penal and excessive.\n\nThis plea was not accepted and a preliminary decree was pa•sed for the full claim on August 12, 1953.\n\nHa7.arilal alone anpealed on January 5, 1954 (R.F.A. No. 1-D of 1954)' and asked for reduction of interest by Rs. 7,900 and of the rate of future interest to 9 per cent per annum. Court fee was paid on Rs. 7, 900.\n\nDuring the pendency of this appeal the decree was made final on April 3, 1954.\n\n. ...\n\n• ..\n\nDAYAWATI v. INDERJIT (Hldayatullah, /.) 277\n\nBefore the appeal was disposed of Inderjit and Satya Narain, sons of Hazarilal, filed a suit for a declaration that the properties were ancestral and belonged to a joint family.\n\nThey claimed that the properties could not be sold and asked for a temporary injunction which was first granted and later vacated.\n\nAgainst the order vacating the stay they filed an appeal (F.A.O. 68-D of 1957) and obtained temporary stay from the High Court.\n\nThe mortgagees also filed in that appeal a petition ( S.M. 1318-D of 1957) for vacation of the stay order.\n\nOn February 10, 1958 a conditional stay order was passed by a learned single Judge of the High Court but we need not trouble ourselves with it.\n\nOn October 29, 1958 the legal representatives of Hazarilal (respondents 1 to 5) presented an application under s. ,3 of the Usurious Loans Act, as amended by s. 5 of the Punjab Relief of Indebtedness Act, when the latter Act was extended to Delhi on June 8, 1956 under s. 2 of Part C States (Laws) Act, 1950 (30 of 1950) and claimed that interest in excess of 7t per cent per annum could not be awarded in this suit.\n\nWe may, at this stage, read the relevant sections.\n\nSection 3 of the Usurious Loans Act, in so far as it is material to our purpose, reads as follows :-\n\n\"3. Re-opening of transactions. ( 1) Notwithstanding anything in the Usuary Laws Repeal Act, 1855, where, in any suit to which this Act applies, whether heard ex parte or otherwise, the Court has reason to believe,- ( a) that the interest is excessive; and (b) the Court may exercise all or any of the following powers, namely, may,- ( i) re-open the transaction, take an account between the parties, and relieve the debtor of all liability in respect of any excessive interest;\n\n(2) (a) In this section \"excessive\" means in excess of that which the Court deems to be reasonable having regard to the risk incurred as it appeared, or must be taken to have appeared, to the creditor at the date of the loan.\n\nH (b) (c) (d)\n\n278 SUPREME COURT ltEPOJlTS\n\n[1966]3 S.C.R.\n\n( 3) This section shall apply to any suit, whatever its form may be, if such suit is substantially one for the recovery of a loan or for the enforcement of any agreement or security in respect of a loan or for the redemption of any such security.\n\nBy s. 5 of the Punjab Relief of lndebtednes; Act, it WI!! p!'Ovidcd :-\n\n\"5. Amendment of the Usurious Loans Act, 1918.-\n\nln section 3 of the Usurious Loans Act, 1918 (X of 1918)-\n\n(i) for the word \"and\" in clausc(a) of sub-section\n\n(i) the word \"or\" shall be substituted.\n\n(ii) for the word \"may\" where it appears for the first time in sub-section ( 1) the word \"shall\" shall be substituted.\n\n(iii) for the word \"may\" after the word \"namely\" in sub-section ( 1) the word \"shall\" shall be substituted.\n\n(iv) to sub-section (2) the following clause shall be added, namely :-\n\n.. ( e) The Court shall deem interest to be excessive if it exceeds seven and-a-half per centum per annum simple interest or is more than two per centum over the Bank rate, whichever is higher at the time of taking the loan, in the case of secured loans, or twelve and-a-half per centum per annum simple interest in the case of unsecured loans; Provided that the court shall not deem interest in excess of the above rates to be excessive if the loan has been advanced by the State Bank of India or any bank included in the Second Schedule to the Reserve Bank of India Act, t 934, or any banking company registered under the Indian Companies Act, 19 t 3 prior to the first day of April, t 937 or any cooperative society registered under the Bombay Cooperative Societies Act, 1925, as extended to the State of Delhi.\"\n\nSection 6 of the Act gave retrospective effect to the above provi- !rlons by enacting :-\n\n• ...\n\nB •\n\n• •\n\n~ -\n\n'~ •\n\nF . -\n\n/ ,,\n\nDAYAWATI v. lNDERJIT (Hldayamllah, J.) 279\n\n\"6. Retrospective effect.-·\n\nThe provisions of this part of the Act shall apply to all suits pending on or instituted after the commencement of this Act.\"\n\nThe decree-holders opposed the application on several grounds.\n\nB The main grounds (and they are the grounds urged in this Court) were that s. 5 of the Punjab Relief of Indebtedness Act merely amended s. 3 of the Usurious Loans Act, that neither section applied to the facts of the case and that no such plea was taen in the court below.\n\nR.F.A. 1-D of 1954 came up for heanng on October 15, 1959 before a Divisional Bench and by the judge ment under appeal the amount of interest in the mortgage was\n\nreduced by Rs. 15,027 by applying the provisions of the Punjab Relief of Indebtedness Act. The Divisional Bench followed an earlier decision of the same court reported in L. Ram Sukh Das v.\n\nHafiz-u/-Rahman and others.(') It was held in that case that the\n\nD provisions of the Punjab Relief of Indebtedness Act applied to a case in which a decree had already been passed and an appeal was pending at the time the amendment was brought into force.\n\nThe Divisional Bench in this case held that on the date on which they decided the appeal the provisions of the Punjab Relief of Indebtedness Act had been extended to Delhi and they were required to apply those provisions and interest in excess of 7! per\n\ncem per annum could not be awarded.\n\nThe preliminary decree was modified by reducing interest up to the date of the suit to Rs. 11,665 by applying the rate of 7 t per cent per annum simple and future interest was awarded als0> at the same rate.\n\nThe judgment debtors who had applied in the High Court were ordered to make good the court fee on Rs. 7,127.\n\nAfter sundry unsuccessful proceedings which included an application for review and another for a certificate, the decreeholders filed this appeal after obtaining special leave of this Court.\n\nIn this appeal it is contended on behalf of the decree holders G that s. 5 of the Punjab Relief of Indebtedness Act can only apply to a suit instituted or pending after the section comes into forcec and not in an appeal after the suit has ended in a decree.\n\nIt is further contended that this will be all the more so, because the seetion itself is made retrospective for suits pending on or instituted after the commencement of the Act and thus cannot affect the H vested right which the judgment had given to the appellants. We have, therefore, to decide whether the provisions of ss. 5 and 6-\n\n(1) A.T.R. 1945 Lah. 177.\n\nMl OS up. Cl/66-5\n\n2110 SUPllEME COURT REPORTS\n\n[1966] 3 S.C.R.\n\nof the Punjab Relief of Indebtedness Act could be invoked by the A Divisional Bench to reduce the interest as stated above.\n\nTho amended section 3 of the Usurious Loans Act is plainly mandatory because it makes it obligatory for a court to rc-ope11 a transaction if there is reason to believe that the interest is oxcessive.\n\nFurther, where the rate of interest exceeds seven and a half B percentum per annum simple, the court must hold that it is excessive.\n\nTherefore if the amended section 3 of the Usurious Loans Act applies to the case in hand, the High Court was right in acting as it did.\n\nTo this Mr. S. T. Desai raises no exception.\n\nHe contends, however, that s. 6 of the Relief of Indebtedness Act in giving retrospection to section 5 by which the amendments C were made, limits it to suits pending on or instituted after the commencement of the Relief of Indebtedness Act and submits that the suit here was neither pending on nor instituted after June 8, 1956 when that Act commenced in the Union Territories of Delhi.\n\nThe respondents in reply submit that the appeal court must apply the provisions of the Relief of Indebtedness Act same as the court D -of trial, because the word 'suit', where the section speaks of a pending suit. includes an appeal from the decision in the suit.\n\nNow as a general proposition, it may be admitted that ordinarily a court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been E rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit.\n\nEven before the days of Coke, whose maxim-a new law ought to be prospective, not retrospective in its operation-is oft-quoted, courts have looked with disfavour upon laws which take away vested rights or affect pending cases.\n\nMatter~ of procedure are, how- F ever, different and the law affecting procedure is always retrospective.\n\nBut it does not mean that there is an absolute rule Qf inviolability of substantive rights. If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of G :appeal may give effect to such a law even after the judgment of the court of first instance.\n\nThe distinction between laws affecting procedure and those affecting vested rights does not matter when the court is invited by law to take away from a successful plaintiff, what he has obtained under judgment.\n\nSec Quilter v.\n\nMapleson(') and Stl7Vi11 v. Fairbrass,(') which are instances of new H laws being applied. In the former the vested rights of the landlord\n\n(1) (1882) 9 Q.B D 672.\n\n(2) (1919) 881..J. K.B. 1004.\n\n• )'\n\nDAYAWATI v. INDERJIT (Hidayatu/lah, J.) '., llU\n\nA to recover possession and in the latter the vested right of ~· tutory tenant to remain in possession were taken away after Jl!ll8ment See also Maxwell's Interpretation of Statufi'.s (11th &Ill;)\n\npp. 211 and 213, and Mukerjee (K. C.) v. Mst. Ramratan,(1) where no saving in respect of pending suits was implied when s. 26(N) and (0) of the Bihar Tenancy Act (as amended; by B Bihar Tenancy Amendment Act, 1934) were clearly applicable to all cases without exception.\n\nSection 6 of the Relief of Indebtedness Act is clearly re4'Qspective. Indeed, the heading of the section shows that it lays down the retrospective effect.\n\nThis being so, the core of the problem C really is whether the suit could be said to be pending on June 8, 1956 when only an appeal from the judgment in the suit was pending.\n\nThis requires the consideration whether the word 'suit' includes an appeal from the judgment in thei suit.\n\nAn appeal has been said to be \"the right of entering a superior court, and invoking its aid and interposition to redress the error of the court D below.\" (Per Lord Westbury in Attorney General v. Sillem(').\n\nThe only difference between a suit and an appeal is this that an appeal \"only reviews and corrects the proceedings in a cause already constituted but does not create the cause.\" As it is intended to interfere in the cause by its means, it is a part of it, and E in connection with some matters and some statutes it is said that an appeal is a continuation of a suit. In the present Act the intention is to give relief in respect of excessive interest in a suit which is pending and a preliminary decree in a suit of this kind does not terminate the suit. The appe; il is a part of the cause because the preliminary decree which emerges from the appeal F will be the decree, which can become a final decree.\n\nSuch an appeal cannot have an independent existence. If this be not accepted for the purpose of the application of s. 3 of the Usurious Loans Act (as amended) curious results will follow. The appeal court in the appeal is not able to resort to the section but if the suit were remanded the trial court would be compelled to apply G it.\n\nFor although, in the appeal proper, that judgment must be rendered which could be rendered by the court of trial, but if the suit is to be reheard, then the judgment must be given on the existing state of the law and that must include s. 5 by reasoa of s. 6 of the Punjab Relief of Indebtedness Act. It is hardly to be suggested that this obvious anomaly was allowed to exist. It H would, therefore, appear that in speaking of a pending suit, the legislature was thinking not only in terms of the suit proper but also\n\n(I) 63 I.A. 47. (2J 11 E.R. 12·10 at 1209.\n\nSUPREME COURT REPORTS\n\n\nof 'those stages in the life of the suit which ordinarily take place A before a final executable document comes into existence. The words df the section we are concerned with, speak of a suit pending on the commencement of the Act and it means a live suit whether in the court of first instance or in an appeal court where the judgment of the court of first instance is being considered. It only excludes those suits in which nothing further needs to be done in relation B to the rights or claims litigated, because an executable decree which may not be reopened is already in existence. The decision of the High Coun wa~ right in applying s. 3 of the Usurious Loon~ Act\n\n(as amended) to the case.\n\nThe appeal thus fails and it will be dismissed with costs .\n\n.Appeal dismissed.\n\n' I", "total_entities": 75, "entities": [{"text": "DAYAWATI AND ANOTHER", "label": "PETITIONER", "start_char": 14, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "DAYAWATI AND ANOTHER", "offset_not_found": false}}, {"text": "INDERJIT AND OTHERS", "label": "RESPONDENT", "start_char": 39, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "INDERJIT AND OTHERS", "offset_not_found": false}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 80, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 94, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "M. 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T. Desai", "label": "LAWYER", "start_char": 3761, "end_char": 3772, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, D. R. Prem and Mohan Beharilal, for the appel !", "canonical_name": "S. T. Desai"}}, {"text": "D. R. Prem", "label": "LAWYER", "start_char": 3774, "end_char": 3784, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, D. R. Prem and Mohan Beharilal, for the appel !"}}, {"text": "Mohan Beharilal", "label": "LAWYER", "start_char": 3789, "end_char": 3804, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, D. R. Prem and Mohan Beharilal, for the appel !"}}, {"text": "N. C. Chatterjee", "label": "LAWYER", "start_char": 3828, "end_char": 3844, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee, and H. P. Wanchoo, for respondents Nos."}}, {"text": "H. P. Wanchoo", "label": "LAWYER", "start_char": 3850, "end_char": 3863, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee, and H. P. Wanchoo, for respondents Nos."}}, {"text": "Tiry11gi Narain", "label": "LAWYER", "start_char": 3893, "end_char": 3908, "source": "ner", "metadata": {"in_sentence": "Tiry11gi Narain, for respondent No."}}, {"text": "Hidayalullah", "label": "JUDGE", "start_char": 3977, "end_char": 3989, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayalullah, J. In this appeal by special leave against the judgment and decree of the Punjab High Court dated October 15, D 1959 the only question is whether, in the facts to be stated presently, the High Court was right in reducing interest m a preli minary mortgage decree dated August 12, 1953 by applying ss."}}, {"text": "August 12, 1953", "label": "DATE", "start_char": 4260, "end_char": 4275, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayalullah, J. In this appeal by special leave against the judgment and decree of the Punjab High Court dated October 15, D 1959 the only question is whether, in the facts to be stated presently, the High Court was right in reducing interest m a preli minary mortgage decree dated August 12, 1953 by applying ss."}}, {"text": "ss. 5 and 6", "label": "PROVISION", "start_char": 4288, "end_char": 4299, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi", "label": "GPE", "start_char": 4364, "end_char": 4369, "source": "ner", "metadata": {"in_sentence": "5 and 6 of the Punjab Relief of Indebtedness Act which were extended to Delhi on June 8, 1956."}}, {"text": "June 8, 1956", "label": "DATE", "start_char": 4373, "end_char": 4385, "source": "ner", "metadata": {"in_sentence": "5 and 6 of the Punjab Relief of Indebtedness Act which were extended to Delhi on June 8, 1956."}}, {"text": "January 17, 1946", "label": "DATE", "start_char": 4391, "end_char": 4407, "source": "ner", "metadata": {"in_sentence": "On January 17, 1946, Hazarilal (predecessor of respondents 1 to 5) and one Jagat Narain (respondent 6) executed a simple mortgage deed for Rs."}}, {"text": "Hazarilal", "label": "RESPONDENT", "start_char": 4409, "end_char": 4418, "source": "ner", "metadata": {"in_sentence": "On January 17, 1946, Hazarilal (predecessor of respondents 1 to 5) and one Jagat Narain (respondent 6) executed a simple mortgage deed for Rs.", "canonical_name": "Ha7.arilal"}}, {"text": "Jagat Narain", "label": "RESPONDENT", "start_char": 4463, "end_char": 4475, "source": "ner", "metadata": {"in_sentence": "On January 17, 1946, Hazarilal (predecessor of respondents 1 to 5) and one Jagat Narain (respondent 6) executed a simple mortgage deed for Rs."}}, {"text": "Ha7.arilal", "label": "RESPONDENT", "start_char": 5303, "end_char": 5313, "source": "ner", "metadata": {"in_sentence": "Ha7.arilal alone anpealed on January 5, 1954 (R.F.A. No.", "canonical_name": "Ha7.arilal"}}, {"text": "January 5, 1954", "label": "DATE", "start_char": 5332, "end_char": 5347, "source": "ner", "metadata": {"in_sentence": "Ha7.arilal alone anpealed on January 5, 1954 (R.F.A. No."}}, {"text": "April 3, 1954", "label": "DATE", "start_char": 5582, "end_char": 5595, "source": "ner", "metadata": {"in_sentence": "During the pendency of this appeal the decree was made final on April 3, 1954."}}, {"text": "Inderjit", "label": "PETITIONER", "start_char": 5690, "end_char": 5698, "source": "ner", "metadata": {"in_sentence": "• ..\n\nDAYAWATI v. INDERJIT (Hldayatullah, /.) 277\n\nBefore the appeal was disposed of Inderjit and Satya Narain, sons of Hazarilal, filed a suit for a declaration that the properties were ancestral and belonged to a joint family."}}, {"text": "Satya Narain", "label": "OTHER_PERSON", "start_char": 5703, "end_char": 5715, "source": "ner", "metadata": {"in_sentence": "• ..\n\nDAYAWATI v. INDERJIT (Hldayatullah, /.) 277\n\nBefore the appeal was disposed of Inderjit and Satya Narain, sons of Hazarilal, filed a suit for a declaration that the properties were ancestral and belonged to a joint family."}}, {"text": "February 10, 1958", "label": "DATE", "start_char": 6207, "end_char": 6224, "source": "ner", "metadata": {"in_sentence": "On February 10, 1958 a conditional stay order was passed by a learned single Judge of the High Court but we need not trouble ourselves with it."}}, {"text": "October 29, 1958", "label": "DATE", "start_char": 6352, "end_char": 6368, "source": "ner", "metadata": {"in_sentence": "On October 29, 1958 the legal representatives of Hazarilal (respondents 1 to 5) presented an application under s. ,3 of the Usurious Loans Act, as amended by s. 5 of the Punjab Relief of Indebtedness Act, when the latter Act was extended to Delhi on June 8, 1956 under s. 2 of Part C States (Laws) Act, 1950 (30 of 1950) and claimed that interest in excess of 7t per cent per annum could not be awarded in this suit."}}, {"text": "Usurious Loans Act", "label": "STATUTE", "start_char": 6473, "end_char": 6491, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5", "label": "PROVISION", "start_char": 6507, "end_char": 6511, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 6618, "end_char": 6622, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 6819, "end_char": 6828, "source": "regex", "metadata": {"statute": null}}, {"text": "Usurious Loans Act", "label": "STATUTE", "start_char": 6836, "end_char": 6854, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Notwithstanding anything in the Usuary Laws Repeal Act, 1855", "label": "STATUTE", "start_char": 6958, "end_char": 7018, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 7939, "end_char": 7943, "source": "regex", "metadata": {"linked_statute_text": "Notwithstanding anything in the Usuary Laws Repeal Act, 1855", "statute": "Notwithstanding anything in the Usuary Laws Repeal Act, 1855"}}, {"text": "Amendment of the Usurious Loans Act, 1918", "label": "STATUTE", "start_char": 8012, "end_char": 8053, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 3", "label": "PROVISION", "start_char": 8060, "end_char": 8069, "source": "regex", "metadata": {"linked_statute_text": "Amendment of the Usurious Loans Act, 1918", "statute": "Amendment of the Usurious Loans Act, 1918"}}, {"text": "Usurious Loans Act, 1918", "label": "STATUTE", "start_char": 8077, "end_char": 8101, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "State Bank of India", "label": "ORG", "start_char": 8985, "end_char": 9004, "source": "ner", "metadata": {"in_sentence": "(iv) to sub-section (2) the following clause shall be added, namely :-\n\n.. ( e) The Court shall deem interest to be excessive if it exceeds seven and-a-half per centum per annum simple interest or is more than two per centum over the Bank rate, whichever is higher at the time of taking the loan, in the case of secured loans, or twelve and-a-half per centum per annum simple interest in the case of unsecured loans; Provided that the court shall not deem interest in excess of the above rates to be excessive if the loan has been advanced by the State Bank of India or any bank included in the Second Schedule to the Reserve Bank of India Act, t 934, or any banking company registered under the Indian Companies Act, 19 t 3 prior to the first day of April, t 937 or any cooperative society registered under the Bombay Cooperative Societies Act, 1925, as extended to the State of Delhi.\""}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 9033, "end_char": 9048, "source": "regex", "metadata": {"linked_statute_text": "the Usurious Loans Act, 1918", "statute": "the Usurious Loans Act, 1918"}}, {"text": "Reserve Bank of India Act", "label": "STATUTE", "start_char": 9056, "end_char": 9081, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 9141, "end_char": 9154, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bombay Cooperative Societies Act, 1925", "label": "STATUTE", "start_char": 9250, "end_char": 9288, "source": "regex", "metadata": {}}, {"text": "Section 6", "label": "PROVISION", "start_char": 9327, "end_char": 9336, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Cooperative Societies Act, 1925", "statute": "the Bombay Cooperative Societies Act, 1925"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 9798, "end_char": 9802, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Cooperative Societies Act, 1925", "statute": "the Bombay Cooperative Societies Act, 1925"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 9859, "end_char": 9863, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Cooperative Societies Act, 1925", "statute": "the Bombay Cooperative Societies Act, 1925"}}, {"text": "Usurious Loans Act", "label": "STATUTE", "start_char": 9871, "end_char": 9889, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "October 15, 1959", "label": "DATE", "start_char": 10038, "end_char": 10054, "source": "ner", "metadata": {"in_sentence": "R.F.A. 1-D of 1954 came up for heanng on October 15, 1959 before a Divisional Bench and by the judge ment under appeal the amount of interest in the mortgage was\n\nreduced by Rs."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 11481, "end_char": 11485, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 5 and 6", "label": "PROVISION", "start_char": 11993, "end_char": 12004, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 12236, "end_char": 12245, "source": "regex", "metadata": {"statute": null}}, {"text": "Usurious Loans Act", "label": "STATUTE", "start_char": 12253, "end_char": 12271, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 3", "label": "PROVISION", "start_char": 12584, "end_char": 12593, "source": "regex", "metadata": {"statute": null}}, {"text": "Usurious Loans Act", "label": "STATUTE", "start_char": 12601, "end_char": 12619, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 12708, "end_char": 12719, "source": "ner", "metadata": {"in_sentence": "To this Mr. S. T. Desai raises no exception.", "canonical_name": "S. T. Desai"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 12769, "end_char": 12773, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 12835, "end_char": 12844, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26(N)", "label": "PROVISION", "start_char": 15246, "end_char": 15254, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar Tenancy Amendment Act, 1934", "label": "STATUTE", "start_char": 15306, "end_char": 15339, "source": "regex", "metadata": {}}, {"text": "Section 6", "label": "PROVISION", "start_char": 15398, "end_char": 15407, "source": "regex", "metadata": {"linked_statute_text": "Bihar Tenancy Amendment Act, 1934", "statute": "Bihar Tenancy Amendment Act, 1934"}}, {"text": "Westbury", "label": "OTHER_PERSON", "start_char": 16002, "end_char": 16010, "source": "ner", "metadata": {"in_sentence": "Per Lord Westbury in Attorney General v. Sillem(')."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 16869, "end_char": 16873, "source": "regex", "metadata": {"statute": null}}, {"text": "Usurious Loans Act", "label": "STATUTE", "start_char": 16881, "end_char": 16899, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5", "label": "PROVISION", "start_char": 17326, "end_char": 17330, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 17344, "end_char": 17348, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 18318, "end_char": 18322, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_283_299_EN", "year": 1966, "text": "D • • i\n\n-\",\n\nTIIE ROMAN CATHOLIC MISSION v.\n\nSTATE OF MADRAS AND ANOTHER ; ;\n\nJanuary 14, 1966\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,\n\nM. HIDAYATULLAH, V. RAMASWAMI AND\n\nP. SATYANARAYANA RAJU, JJ.]\n\nMadras Hindu Religious Endawments Act (2 of 1927), s. 44-B-Vall. dlty. '\n\nMelwara1n-Resumption by Gcrvermnent-Period of limitation.\n\nlnam fair retister-V alue of\n\nThe suit lands were granted as inam for the perfonnance of puja in a Devasthanam.\n\nAs they had been alienated, Revenue DiYisional Officer, acting under s. 44B of the Madras Hindu Religious Endowment>\n\nAct, 1926, resumed and regraoted them to the Devasthanam, holdinr that the inam consisted of both me/waram and kudiwaram. The appellant- Mission, \\Vhich was in possession of the lands as alienee, filed su:ts for \" declaration that the inam coosisted only of the Me/waram, that the grant was a personal inam not liable to resumption under s. 44B and tllat the section itself was ultTa vires the Provincial Legislature. The trial Court held that the inam consisted of both warams, but that it was a pers<)nal inam outside the purview of s. 42B~ and therefore decided in favour of the Mission.\n\nOn appeal, the High Court reversed bolh the findings and held that the section was intra vires.\n\nIn appeals to this Court by the Mission and the Dernsthanam,\n\n, HELD : (i) A concatenation of the several po, vers of the Provincial Legislature undeu the Government of India Act, 1915, furnished adequate scope for comprehensive leg slation on the subject of in ams connectCli \"1ith religious and charitable endowments.\n\nEven if there was any doubt, the Governor-General in Council must ha\\'e decided the question as per r. 4 of the Devolution Rules under the Government of India Act, 1915, and put an end to any controversy on the matter. The section and the amendment to it in 1946 would be sustained by s. 292 of the Government of lt:ldia Act, 1935, and tbP. power of the Provincial Legislature thereunder.\n\nSection 44B was thus fully within the competence of the Provincial Legislature and the same would be tme of the corresponding section, s. 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951, vis-a-vis the Constitution.\n\n[297 C-B, HJ\n\n(ii) The lnam Fair Register incorporated an official declaration which was the result of detailed inquiries.\n\nAll evidence collected in respect of each inam was carefully sifted and considered before any conclusion was reached or declared. In the absence of positive and proper evidence t.o the contrary, such declaration must possess supreme importance. The High Court reached, on the admissible evidence, the right conclusion that the melwaram alone was the subject of the inain and that the inmn was always considered as remuneration for archaka service of the Devasthanam. The finding of the trial Court that it was. a personal irurm \"\".•• erroneous.\n\n[290 B; 294 D-E; 295 E, F]\n\n284 SUPREME COL'JtT\n\nREPORTS\n\n[1966) 3 S.C.R.\n\n1Uunacha1am Cherty and othtr \\'. Venlwlaclra/apatlrl, LR. 56 I.A.\n\nA 204, applied.\n\n(in) 32 & 33 Viet. c. 29 only validated the title deeds granted by the lnam Commission.\n\nIt did not create any contract, and thcrefo1e like any other grant which is resumable on breach of its conditions, this inarn ... -. was resumable according to its terms and conditions.\n\nOn aJienation, it was liable to re; umption under s. 448; and ns the resumption by the Governmeot was of the rne/waram only, and since there is no period of B limitation prescribed by any law, no question of adverse possession by the\n\nMiMion would arise. (298 E, F) Boddapa//i Jagannadltam v. Secretary of State, l.L.R. 27 Mad. 16 and Subranwn/am Chettiar v. Secretary of St111e, 28 M.L.J. 392, applied.\n\n(iv) By the resumption and rcgrant what was done was only to restore to the Devasthanam what it had lost.\n\nTherefore, it was not a case of putting a deoonminational religio1l• inslitutionn at an advantage. [297 C\n\nF-0)\n\nCIVIL APPELLATE JUR!SD!C'f!0:-1 : Civil Appeals Nos. 389 of 1964 and 69 of 1965.\n\nAppeals from the judgment and orders, dated December 14, 1959 of the Madras High Court in A. S. Nos. 773 and 787 nnd Appeal No. 734 of 1954 respectively.\n\nS. G. Ramchandra Iyer, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the appellant (in C. A. No. 389/64) and Respondent No. l (in C. A. No. 69/65).\n\nRan1:mradham Cherry and A. V. Rangam, for the respondent No. l (in C. A. No. 389/64).\n\nA. V. Viswanatha Sartri, and R. Gopalakrislman, for the respondent No. 2 (in C. A. No. 389/64) and appellant (in C. A.\n\nNo. 69/65).\n\nThe Judgment of the Court was delivered by Hidayatullah, J.\n\nIn village Vandiyur of Madurai Taluk there are two blocks which bear the names Melapappathu and Keelapappathu.\n\nThe former is 28.90 acres and bears survey No. 45 (the old survey No. was 33 and the area 28. 75 acres).\n\nThe extent of the area in kanieas is 21-9. The other block is Survey No. 78, area 20.88 acres (the old Survey No. was JOO and the area 20.53 acres).\n\nThe extent of the area in kanies is 17-10.\n\nThese lands were originally situated in village Managiri and the lands were manyam lands, that is to say, lands held at a low assessment or altogether free in consideration of services.\n\nIt is now clear from the record and indeed it is admitted on all hands that they were the subject of an i11am granted in ancient times by the Rulers and that they were held for the performance of puja in Sri Meenakshi S1mdare\"''arnl Devasthanam, Madurai.\n\nIn 1948 the Revenue\n\n• •\n\n. .\n\n-<\n\n• ,;'\n\nR. c. MISSION v. MADRAS (Hidayatullah, .'.) 285\n\nA Divisional Officer, Madurai,' held, after enquiry, that the inam consisted of both melwaram and kudiwaram and as the inmrr lands had been alienated the inam was liable to be resumed. His order was passed on April 9, 1948 and purported to be under s. 44B of the Madras Hindu Religious Endowments Act, 1926 (Madras\n\nAct 2 of 1927). The inam lands were resumed and regranted to the Devasthanam.\n\nAt that time the lands were in the possession of the Roman Catholic Mission of St. Mary's Church, Madurai, and were so held by the Mission since October, 1894.\n\nAgainst the order of the Revenue Divisional Officer the Mission appealed to the District Collector under s. 44B( 4) of the Act.\n\nThe appeal was dismissed on March 13, 1949.\n\nThe District Collector also held that the inam comprised both the Warams.\n\nThe Roman Catholic Mission thereupon instituted a suit in the court of the Subordinate Judge, Madurai unde~ s. 44B(2) (d) of the Act for a declaration that the inam consisted only of the me/waram.\n\nThe suit was later withdrawn by the District Judge to his own file and it was registered as 0. S. I of 1954. The Mission also instituted another suit in the Court of the Subordinate Judge Madurai, which was also withdrawn by the District Judge\n\nto his file and was registered as 0. S: 2 of 1954.\n\nThe second suit was a mere general one.\n\nIt also sought the declaration which was the subject of O.S. 1 of 1954 and it questioned both the right to resume the ]ands as well as the resumption which was ordered\n\nby the revenue courts.\n\nIn that suit the Mission contended •hat the particular inam was outside the scope of s. 44B of the Madras Act 2 of 1927 as it was a personal inam and not liable to resumption under that section and that the section itself was ultra vires\n\nthe Provincial Legislature.\n\nThe Province of Madras (now the State of Madras) and Sri Meenakshi Sundareswaral Devasthanam, Madurai were made defendants.\n\nThe District Judge dismissed 0. S. No. 1 of 1954, holding that the inam consisted of both the warams. In 0. S. 2 of 1954 the same finding was repeated and it was further held that the order of resumption was invalid and without jurisdiction since the inams in question were personal inams and did not come within the purview of s. 44B.\n\nThe District Judge granted a declara•ion to that effect and also issued an injunction against the Deva, thanam which had .not taken possession of the land till then.\n\nAgainst the decision in 0. S. 1 of 1954 the Mission appealed and H against the decision in 0. S. 2 of 1954 the Devasthanam and th~ State of Madras filed anneals.\n\nA. S. 734 of 1954 was filed bv the Roman Catholic Mission against the decision in 0. S. 1 of 1954\n\nSUPREME COURT\n\nREPORTS\n\n(1966] 3 S.C.R.\n\nand A. S. 773 and 787 of 1954 were filed -in 0. S. 2 of 1954 by A the State of Madras and Sri Meenakshi Sundareswaral, etc. Dev~ thanam, respectively. The High Court decided all the three appeals on December 14, 1959 pronouncing a separate judgment in A. S. 7 34 of 1954 and disposing of the other two appeals by a commoa •' judgment.\n\nThe finding that both the irarams were the subject of the ifli11tl was reversed by the High Court and 0. S. l of 1954 was decreed.\n\nThe finding that the inams were personal and, therefore, not liable to be resumed was reversed and 0. S. 2 of 1954 was ordered to be dismissed except for the modification that the inam was held to be of the melwaram only, which was the sole decision in the <>!her suit.\n\nThe lligh Court repelled all contentions about the ultra iires nature of s. 44B.\n\nThe High Court certified both the appeals as fit for appeal to this Coon and this appeal and Civil Appeal 69 of 1965 (Sri Meenakshi Sundareswaral, etc. Devasthanam, through its Executive Officer v. The Roman Catholic Mission and two others) have been filed.\n\nThis appeal relates to 0. S. 2 of 1954 and is filed by the Roman Catholic Mission with the State of Madras and the Devasthanam as the respondents.\n\nThe companion appeal is by the Devasthanam and the answering mpon- <lent is the Roman Catholic Mission.\n\nThis judgment will dispose of the two appeals.\n\nBefore we mention the matters in controversy in this appeal, we shall give an outline of the transfers by which the Roman Catholic Mission came to be possessed of the lands.\n\nIt does not appear to have been seriously questioned at any time that these fonds originally belonged to certain Mahomedans as proprietors.\n\nIt appears, however, (as we shall see presently) that the land F itself wa~ not subjected to any grant but that the thurva, that is, the rent paid in money, alone was the subject of the grant. Althougfi the right in respect of the concession in theerva was made out in the names of the Bhattars who were the Archakas of the Devasthanam, both the concession as well as the land were subjected to alienations.\n\nEven before May 12, 1861 half of Melapappa- G .pathu was purchased by one Krishnaswamy Chettiar, son of Andiappa Chettiar, and the otheihalf was purchaed by him on May 1, 1861.\n\nSimilarly, Krishnaswami Chettiar had purchased a half of Keelapappapathu from the original proprietors.\n\nOn January 4, 1863 one half share in Melapappapathu was ur- H chased by one Chockalingam Pillai from Krishnaswamy Chettiar.\n\nHe also purchased one half of Krishnaswamy Chettiar's part of l\\i:elapappapathu, for the benefit of one Muthuramalingam\n\n• •\n\n). . .\n\n, .\n\nR. c. MISSION v. MADRAS (Hidayatullah, !.) 287\n\nA Pillai.\n\nIn October 1864 Chockalingam granted a formal release in favour of Muthuramalingam.\n\nThe other half of Keelapappapathu, which continued with the original proprietors was sold by them to Krishnaswamy Chettiar (less one kani) on July 18, 1867.\n\nOn June 25, 1870 Muthuramalingam Pillai executed a usufructuary mortgage of a part of the land released in his favour, to one V airavalingam Pillai son of Muthuramalingam Pillai.\n\nIt is not clear whether he was his own son but it is not relevant to inquire.\n\nOn December 14; 1871 Muthuramalingam's widow, Adaikalathammal, sold, on behalf of her minor son Muthuswami Pillai, half share of Melapappapathu and the quarter share of Keelapappapathu to Krishnaswami Chettiar.\n\nThe mortgage of June 25, 1870 was paid off and Krishnaswamy redeemed the property on September 11, 1872. This left out from Krishnaswamy Chettiar's ownership one Kani of land which the original proprietors still held. On June 17, 1872, Krishnaswamy Chettiar purchased that land and in this way he became owner of all the lands comprised in these two appeals.\n\nKrishnaswamy executed a release and sale deed in favour of Andiappa Chettiar of all the lands and it appears that Andiappa Chettiar was the beneficiary of the purchases and thus the real owner.\n\nOn October 20, 1894, the Roman Catholic Mission purchased for Rs. 1,500 and Rs. 6,500 the greater part of Malapappapathu.\n\nE The remaining portion of this block and the Keelapappapathu block was purchased by one Anthonimuthu and when he set up his own title the Mission sued him and obtained a decree in\n\n0. S. 45 of 1895 from the Sub-Court, Madurai West.\n\nThe Roman Catholic Mission has thus been in possession of both the blocks F from the last century.\n\nWe shall now consider the contentions in the two appeals.\n\nThe High Court and the Ditrict Judge have differed on two aspects of this case.\n\nBoth the aspects are connected with the natnre of the inam in dispute.\n\nThe first is whether the inam was of the Melwaram alone or comprised both the warams and the second is whether the inam was a personal inam which could not be resumed or one granted for the service of the temple, which could be resumed when there was an alienation and the service was stopped.\n\nOn the question of the validity of s. 44B of the Madras Hindu Religious Endowments Act, 1926, the District H Judge found it unnecessary to express any opinion in view of his decision on the nature of the inam which he held to be personal and not liable to resumption, but the High Court considered the question and held the provision to be valid.\n\nIn these appeals\n\nSUPR!!ME COURT\n\nREPORTS\n\n(1966] 3 S.C.R.\n\nthese three points were mainly argued, along with a claim of A adverse possession which the Roman Catholic Mission had set up.\n\nWe shall begin by considering the nature of the inam-lirst from the point of view, whether it comprised both the warams and then from the point of view whether it was a grant to the temple or a grant for an office to be remunerated by the use of land or a grant of land burdened with service. We shall next consider the B arguments on the basis of which s. 448 is said to be ultra viri', f and void.\n\nLastly, we shall consider the question of adverse possession.\n\nAs there is no document recording the grant of inam and its conditions, one has to tum to a number of documents from which the High Court and the court below have drawn opposite conclusions regarding what was included in the inam.\n\nThere is, of course, no dispute that the inam must have comprised the melwaram at least.\n\nThat it must have done in any event.\n\nThus\n\nthe sole question is whether it comprised the kudiwaram also. In 0 reaching the conclusion that both warams were included, the District Judge took into consideration certified copies of certain\n\nleaes from the record of an old case 0. S. No. 124 C'f 1944 of the Court of Subordinate Judge, Madurai.\n\nThese documents are Exts. B-4, 5, 6 and A-68, 69 and 77.\n\nEx. B-4 is a karalnama\n\n(agreement) executed for the fasli years 1348 and 1349 by which E the lessees undertook to hand over I /3 share of the produce as melwaram and to retain 2/3 share as kudiwaram from the lands leased out of Keelapappapathu.\n\nEx. B-5 is another lease for cultivating the whole of Keelapappapathu nanja (wet) lands.\n\nEx.\n\nB-6 is a muchi/ika in respect of nanja lands in Keelapappapath11 by which lessee undertook to pay half produce as melwaram and to retain the other half as kudiwaram.\n\nThese documents undoubtedly would have thrown light upon the matter but they were not admissible because they were only copies.\n\nThe originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence.\n\nThe High Court rejected them and it was plainly right in so deciding. If we leave these documents out of consideration, the other documents do not show that the inam comprised the kudiwaram also.\n\nEx. A-3 is an extract from the village account of Managiri village, Mandakulam Taluk relating to inams.\n\nIt is for the years 1802- 1803.\n\nThe lands are sufficiently identified with the suit lands by the area. The lands were described as Ste/ather inam Poruppa ff manyam, conducted for Meenakshi Sunderashwaral temple.\n\nThe poruppu being a low or qoit rent according to the 5th Report\n\n• '\n\n..,\n\n, •\n\nR. C. MISSION v. MADRAS (Hidayatul!ilh, !.) l:89'\n\nA p; 765 we get an indication as to what the inam comprised. The\n\naccount shows that from the total assessment of 96 Pons 0 fanoms and 15 thuddus, the poruppu was only 19 Pons 2 fanoms imd 3 thuddus.\n\nAgain in Ex. A-5, which is an extract of the Inam Account of Manigiri village of 1217 fasli i.e., five years later, the heading was Inam Enquiry Mauje (village) Manigiri\".\n\nNow the word Mauje is used in respect of villages in which there are cdtivators owning cultivable lands.\n\nThis has been so held for a long •\n\ntime. [See Venkata Sastrulu v. Sitharamadu,(') per Sadasiva Iyer, J. arid Sethayya v. Somayajulu.]( 2 ) In the remarks colu!llln,\n\nthe poruppu amount payable is stated and it almost corresponds to the poruppu earlier mentioned, and there is a further men1fon of the service of the temple.\n\nThe pattas exhibits A-6 to A-~: of the years 1856, 1857 and 1860 also speak of sournadayam manibam poruppu which is revenue payable in money at a concess'1on.\n\nThe inamdars did not themselves claim in the Inam enquiry nny-· thing more than the melwaram rights and in Exts. A-10 and A 11, which are the lnam statements ( 1862) and the Inam Fair Register D dated September 25, 1863. the Sta/athnr Pnruppu Manibam is again mentioned and the Inam were registered in the name; of Bhattars as the Sthaniks of the temple .\n\nThe only document in which a contrary note was struck was. the othi-deed (mortgage) Ex. A-64 of 1876 by which Mutbu Meenakshi had mortgaged her Melwaram interest in half of the inam for 20 years in favour of Krishnaswamy Chettiar. Muthu Meenakshiammal was the wife of Vikramapandia Battar the sthaneekam of the Devasthanam. This concerned both Melapappapathu and Keelapappapathu and the moragagee undertook to pay the poruppu. In describing the property it was stated that the m.elwaram and kudiwaram rights were in the mortgagee's po1session.\n\nThis probably represented the true state of affairs because Krishnaswamy Chettiar was slowly acquiring through the years the lands as well as the inam.\n\nA similar statement was mad•: by Krishnaswamy Chettiar in Ex. A-42 but it does not advance the case further.\n\nIt is obvious that Krishnaswamy Chettiar had already acquired not only the melawaram out also the kudiwaram.\n\nNeither docuinent really showed that the inam comprised the k udiwaram as well.\n\nThere is no other evidence of the inclusio11 of kudiwaram in the inam and the dealings were with melwaram which alone the inamdars claimed at the lnam Enquiry.\n\nR Although the matter has been discussed carefully by the High Court, we have re-examined the material and set down here-\n\n(!)I.LR. 38 Mad. 891.\n\n(2) I.LR. 52 Mad~ 453, 463. (P.C.)\n\n:290\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n( 1966] 3 >.C.R.\n\nwhat we consider to be adequate reasons for holding that there is no proof that the kudiwaram was the subject of the inam.\n\nAll admissible matter points to the conclusion that the m.elwaram .alone was the subject of the grant. The appellant in Civil Appeal No. 69 of 1965 took us through the two judgments and pressed upon us the view of the trial Judge. We have considered the two views and are of opinion that the I ligh Court has reached the right conclusion on the admissible evidence on record.\n\nCivil Appeal No. 69 of 1965 must thus fail and this finding by u' will be read in the other appeal also.\n\nWe shall now consider whether the inam was a per.; onal inam <Jr for the service of the Devasthanam.\n\nThe High Court has relied upon a decision of the Madras High Court in Rasa Kondon v. lanaki Ammal.(') lnams are of various kinds.\n\nThev are classified on the basis of concession in land revenue, th; t i; to say, whether the whole of the land revenue is remitted or a part, or whether the land is held subject to a payment of money.\n\nWhere the whole of the land revenuo is remitted the inam is known by names such as Sarva lnam, Sarva ma11yam, Sarva d11mbala or darobust inam.\n\nWhen the right to the soil is not included in :he inam it is known according to the share which was free such as Ard/la manyam (half), chaturbhaf; am ( l /4) etc. The third kind\n\no! inam comprised payment of a quit rent called the poruppu.\n\nThe question is whether this inam in which only a poru11pu wns payable comprised the right to the soil.\n\nIn Venkata v. Sltaramadu(') it was held by the Privy Council that there was no presumption in law that an inam grant, even if mack to a Brahmin, did not include the kudiwaram.\n\nWe have borne this observation in mind but we hold that the evidence in this case points to the fact that the inam comprised only the melll'aram. 1t was thus an iJJam where the land was held subject to payment of an amount as quit rent.\n\nIt was granted to the archaka• and was recorded in their name.\n\nThat they alienated the lands is without any -doubt and the question is whether the inam could be resumed or not.\n\nSection 44-B inserted by the Madras Hindu Religious Endowment (Amendment) Act 1934 (Madras Act XI of 1934) in the parent Act II of 1927 and further amended hy the Amendment Act X of 1946 reads :\n\n\"44-B. (I) Any exchange, gift, sale or mortgage, and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the support or maintenance of a math or temple or for the\n\n(I) (1950} 2 M.l..J. 177.\n\n(2) I.l.R. 38 Mad. SJI\n\n. ,\n\nc •\n\n•• F\n\nR. c. MISSION v. MADRAS (Hidayatullah, J:)\n\n29 L\n\nperformance of a charity or service connected therewith and made, confirmed or recognized by the British Government, shall be null and void ..\n\nExplanation.-\n\n(2) (a) The Collector may, on liis own motion,. or on the application of the trustee of the math or temple or of the Assistant Commissioner or of the Board or of any person having interest in the math or temple who has obtained the consent of such trustee, Assistant Commissioner or Board, by order, resume the whole or any part of any such inam, on one or more of the following grounds, namely :-\n\n(i) that the holder of such inam or part has made an exchange, gift, sale or mortgage of the same or any portion thereof or has granted a lease of the same or any portion thereof for a term exceeding five years, or\n\n(ii) that the holder of such inam or part lias failed' to perform or make the necessary arrangements for performing, in accordance with the custom or usage of such math or temple, the charity or service for performing which the inam had been made, confirmed or recognized by the British Government, or any part of the said charity or service, as the case may be, or\n\n(iii) that the math or temple has ceased to exist or the charity or service in question has in any way become impossible of performance.\n\nWhen passing an order under this clause, the Collector shall determine whether such inam or the inam\n\ncomprising such part, as the case may be, is a grant of both the melvaram and the kudivaram or only of the melvaram.\n\n( f) Where any inam or part of an inam is resumed under this section, the Collector or the District Collector as the case may be, shall by order, re-grant such inam or part- ( i) as an endowment to tlie math or temple concerned, or\n\n,,.\n\nSUPREMI! COURT\n\nREPORTS [1966] J s.c.R.\n\nSub-section (I) of s. 44-B was the subject of interpretation in P. B. Bheemsena Rao v. Sirigiri Paddayella Reddi an4 .others. ( 1 ) The question then was whether s. 44-B (I) covered a grant of land burdened with service as against a grant for an -0ffice to be remunerated by the use of land but resumable when the senicc was not performed.\n\nIn dealing with these two distinct aspects of an inam grant, Gajendragadkar J. (as he then was) and Wanchoo J. point out that the former is not a case of a service grant proper and such a grant can only be resumed if the conditions of the grant contemplate a resumption when the service is not performed.\n\nThe other is a proper service inam and unless service is performed resumption is inevitable.\n\nThey also point out that prior to the enactment of s. 44-B the inams were governed by the Board's Standing Orders : rule 54.\n\nThat laid a duty on Revenue Officers to see that inams confirmed by the Inam Commissioner as being for the service of some religious or charitable institution were not enjoyed without the performance of service.\n\nGrants were liable to be resumed when the whole or part of the land granted had been alienated or lost.\n\nProvision was, however, made to deal wilh such cases in two ways.\n\nEither there was resumption or the grantee was left in possession and the full assessment being imposed on him, the difference was made available to the particular charity or institution for the service of which the grant was made.\n\nTherefore, in the case of personal inams burdened with service, when the service was not being performed. whether there was an alienation or not, the full as<cssment being dmanded, the personal portion was left to the grantee bu1 the com:es, ional portion was given to the charity concerned.\n\nAfter the enactment of s. 44-B the Board's Standing Order Ruk: 54 was amended and inams for religious and charitable purposes were classified : ( i) inams granted for the performance of a charity\n\nor service connected with a Hindu math or temple: and\n\n(ii) inams not falling under c13ss ( i).\n\nThe first two kinds were governed by the provisions of the Madras Hindu Religious Endowments Act and the second by the Board's Standing Orders Ruic 54.\n\nTaking this history into account it is pointed out that s. 44-B (I), in spite of the width of its language is only open to a restricted interpretation and includes in resumable inams those in which tJ1e whole of the income or a very great pan is required for the service and not large personal inams with\n\n(!) [1962] t S.C.R. 339.\n\nc '\n\n• •\n\n.~.\n\n-! /;.\n\n. ' F\n\nR. c. MISSION v. MADRAS (Hidayatullah, J.) ~93\n\na small or slight service.\n\nOn the other hand grant of land made to an office-holder to remunerate him for service is always resumable if he ceases to hold office or to perform service.\n\nThe rival contentions in this case may now be considered.\n\nThe Roman Catholic Mission submits that these are personal inams and they do not come within s. 44-B.\n\nThis submission was accepted bythe District Judge.\n\nAccording to him, the inam was made to the ancestor of the persons named in the Inam Fair Register, subject to the obligation to perform service in the temple.\n\nThe inam is thus held not to be attached to any office, archaks or other; nor is the income remuneration for that office.\n\nIt is urged that such an inam is alienable, and if the service continues, the alienee cannot be distributed and can enjoy the inam. The High Court accepted the contention of the Devasthanam that the inam\n\nwa., !!ranted for the office of the archakas and for service a.s such In other words the inam is said to be attached to the office and thus incapable of alienation and if alienated liable to resumption.\n\nIn deciding which it is, certain documents throw a flood of light.\n\nIn Ex. A-3 to which we have already referred, this inam is called Devedayam inam and again as stalethar inam porupott manyam \"conducted for Meenakshi Sundareshwaral Temple, thaatie Devasthanam\". The inam is entered in the names of Bhattars.\n\nThe word Devadayam ordinarily is used in revenue records to describe lands attached to a temple and in the dictionaries the meaning is 'lands or allowances for the support of a temple'.\n\nThe expression sthalather poruppu manyam or shortly slhala manyam means land held at a low or quit rent. The word poruppu also means quit rent.\n\nThus this document shows that the Bhattars were granted these lands in inam for the performance of service of the temple but not granted as inam personal to the grantee.\n\nThe High Court rightly pointed out that the description in the same document \"Shanmugasundra Bhattar Mritunjaya Bhattar inam\" was merely a description of the inam with reference to the inamdars, but could not in the circumstances mean that the inam was their personal inam.\n\nFurther Ex. A 11, the Inam Fair Register of 1863, does not mention the name of the original grantee which it would have if the grant was personal.\n\nThe names of the two Bhattars are entered but as athanikama of Pagoda Meenakshi Sundareshwaral and the inam is described as Devadayam for the archakal service, that is to say, of puja parichakaram in the temple and it is stated that the Inam Commissioner confirmed the inam.\n\nSUPREME COURT\n\nREPORTS\n\n[1966] 3 S.C.R.\n\nNow in a series of cases, the Inam Enquiry has been held by the Judicial Committee to be a landmark. In Arunachalam\n\nChetty and Orhers v. Venkatacha/apathi Guruswamigal(') the utmost importance was attached to the Inam Fair Register, the preparation of which was described as a great act of State.\n\nJn Narayan Bhagwantrao Gosavi Ba/ajiwa/a v.\n\nGopa/ Vinayak Gosavi(') this Court held, accepting the finding of the Inam Commission, in the absence of other evidence, that the grant was to a\n\nDevasthan and constituted a Dcvasthan Inam.\n\nMr. Ramachandra Aiyer attempted to prove to us that the expression 'act of state' in the Privy Council judgment was a misuse of the term and cited some cases where the act of state has been discussed.\n\nWe do not find it necessary to refer to them.\n\nThe term act of state docs not always mean a sovereign act against an alien which is neither grounded in law nor does it pretend to be so.\n\nThe term means more than that because it has many meanings.\n\nIn State of Saurashtra v.\n\nMemon l/aji Ismail llaji(') other meanings of this term arc given.\n\nHere it indicates an act in respect of which there was an official declaration.\n\nThe Inam Fair Rcgbter incorporated an official declaration which was the result of detailed inquiries.\n\nAll evidence collected in respect of each inam was carefully sifted and considered before any conclusion was reached or declared.\n\nIn the absence of positive and proper evidence to the contrary such declaration must possess supreme importance.\n\nIt is significant that the Roman Catholic Mission in the plaint as it was originally filed had said that the office of the archaka was remunerated by the income of lands in dispute and by the income from other sources.\n\nHowever, when the decision sub nom. P. V.\n\nBheemsena Rao v. Y el/a Reddi of the High Court of Madras was reported in ( 1954) I M.L.J. 384 it pleaded by an amendment that the inam was a personal inam.\n\nAs the High Court in the judgment under appeal points out, there was litigation between the Bhattars am! the Roman Catholic Mission and the evidence we have discussed, must have been known to the Mission when the original plaint was filed.\n\nThe fact that their pica was that this was an inam for remunerating the office of the archakas represented a true reading of these documents.\n\nThe Inam Fair Register speaks of the inam as Devadayam and reads it as permam:nt.\n\nIf the inam was to a Brahmin personally it would have been shown as 'Brahmadayam' and 'hereditary'. ·-----\n\n(1) !..R. 46 I.A. 204.\n\n(2) [t96li! t S.C.R. 77J\n\n13) [196f, J I S.C.R. 537, 543.\n\nt . .r.,. • 1\n\n~ •\n\nI..\n\n• •\n\n' .\n\n. -'-... •1!'\n\n\\\" .\n\n• • ,\n\n. .\n\nR. c. MISSION v. MADRAS (Hldayatullah, !.) 2 95\n\nFinally in Ex. A-10, which is a statement of Muthumeenak-hi ammal who was in enjoyment of the inam in 1863, it is stated:\n\n\" Particulars as to how the inam was obtained and the abstract of the deeds. (7) Nenjakani 39 During the time of our predecessors the said Manibam was allotted by the . previous Government for sthalathar inam of Meenakshi Sundareswaral and just as our predecesors enjoyed, we also in the aforesaid manibam, I Muthu Meenakshi Ammal half share, I Ponnammal 1/4th share, we Kalyana Battar and Bhinna Subba Battar 1/Sth share and we Villu Battar alias Shunmuga Sundara Battar 1/Sth share, we are in enjoyment of the aforesaid Maniba lands in the aforesaid manner and we are paying the poruppu manyam due in respect thereof as per our proportionate share and we are also remaining in enjoyment of the said Manibams as our predecessors enjoyed .\n\nWe are doing archakam (pooja) and cooking in the aforesaid temple.\" This clearly shows that the inam was always considered as remune- E ration for archaka service of the temple and on its alienation it is liable to resumption under s. 44-B. Even before the incorporation of s. 44-B such an inam could have been resumed by Government, under Standing Order of the Board of Revenue Rule 54(1) (see Anjanayalu v. Sri Venugopa/a Rice Mill Ltd.('). Mr. Ram\n\nF chandra Aiyar even attempted to question the correctness of this case, which has been followed consistently.\n\nThe finding of the learned District Judge, Madurai, that this was a personal inam to an individual was erroneous and the High Court was right in reversing it.\n\nMr. Ramchandra Aiyer next contends that s. 44-B was void G when the legislature purported to enact it, and, therefore, no action could be taken under it.\n\nThis argument is many faceted and often it is obscure.\n\nShortly stated, the argument is this : 'The inam was confirmed on September 25, 1863 under title deed !354 by the Inam Commissioner. The alienations of the rights, whatever they be, were before that date. Prior to the Inam Com- H mission there was no prohibition and the .confirmation could not affect prior alienations.\n\nAs the inam deeds were validated by an\n\n(ll I.L.R. 45 Mad. 620 (F.B.) at 624. 10 Sup. CI/66-6\n\n296 SUPllEMB COUllT J.EPOllTS\n\n(1966] 3 S.C.R.\n\nAct of the British Parliament (32 and 33 Viet. c. 29) the right to forfeit the lnam concession or to resume it could be exercised by the Crown only as the inam became a contract between the Secretary of State for India and the inam-holder.\n\nSection 44-B\n\nis said to be void because it confiicted with this position and enabled the Revenue Officers to order resumption.\n\nThe resumption or forfeiture itself was said to be ineffective without the order B either of the Governor General or Governor in exercise of his individual judgment and also because the right to resume the inam was\n\nsaid to be extinguished by prescription.\n\nThe resumption was characterised as a forfeiture and was said to be void under s. 299 of the Government of India Act, 193!! and Arts. 31 and 296 of the Constitution. Madras Hindu Religious and Charitable Endow- C ments Act (XIX of 1951) which by s. 35, reenacts s. 44-B was further said to be void as, it was said, it seeks to protect only Hindu religious institutions and not those belonging to other religions.\n\nThe power of the provincial legislature to enact s. 44-B in 1934 or 1946 was also challenged under the Government of India Act 1915 and the Government of India Act, 1935, respectively.\n\nThe District Judge did not consider any of these arguments except the last, because he decided the issue of resumption against the Devasthanam and the State Government.\n\nThe District Judge decided that the section was validly enacted by the provincial legislature.\n\nThe District Judge, however, mentioned in the judgment all the arguments which were raised before him and they were the arguments which we have set down above. However, in the High Court most of these arguments do not appear to have been advanced because the High Court judgment is silent about them.\n\nWe intimated Mr. Ramchandra Aiyer that we would not allow any argument to be advanced which the High Court was not invited to consider.\n\nIn the High Court the validity of ~. 44-B of the Madras Act and s. 35 of the Act of 1951 was considered from the point of view of the powers of the Provincial legislature when the former was enacted and from the angle of the Constitution in respect of both.\n\nWe shall consider these arguments mainly from the same two standpoints.\n\nThe powers of the Provincial legislatures under the Government of India Act, 1915 were determined under the Devolution Rules made bv the Governor General in Council under ss. 45-A and 129-A of the Government of India Act. By these rules a dassification of subjects was made for the purpose of distinguishing the functions of the local governments and local lcgislatnres <>f Governors' provinces from the functions of the Governor\n\n........\n\n• 1\n\n• •\n\n. -\n\n......\n\n,...\n\n• •\n\n•· .\n\nR. C. MISSION v. MADRAS (Hidoyatu/&zh, J.) 297\n\nA General in Council and the Indian Legislature. The Devolution Rules set out in two lists the subjects so classified and any matter in the list of provincial subjects set out in Part II of Schedule I was excluded from any central subject.\n\nUnder rule 4 of these rules, if any doubt arose as to whether a particular matter did or did not relate to a provincial subject, the Governor General in B Council was to decide whether the matter did or did not so relate and his decision was final.\n\nAt this distance of time, it is somewhat inept for a Court, without a proper inquiry, to decide whether the powers of the Provincial legislature did or did not extend to the making of c s; 44-B.\n\nFor aught we know, this identical question might have been raised and the decision of the Governor General in Council obtained. That would be end of the matter.\n\nNo one seems to have challenged the section although numerous inams were resumed under that section. However, considering the matter in principle we do not feel any doubt about the competence of. the D Provincial legislature.\n\nAs the District Judge and the High Court have rightly pointed out, the powers of the Provincial legislatures extended over land tenures, land revenue administration and religious and charitable endowments.\n\nA concatenation of these several powers must obviously furnish adequate scope for undertaking the most comprehensive legislation on the subject of inams E in general and inams connected with religious and charitable endowments in particular. Section 44-B was thus fully within the competence of the Provincial legislature.\n\nThe next question which was considered by the High Court was whether resuming and regranting the inam to a Hindu temple, offended the Constitution.\n\nThe High Court did not accept this submission. It is obvious that by the transfer of the inam the temple was deprived of a benefit and the transferee had no right to hold that benefit. What was done was to restore to the temple what it had lost and this was not putting a denominational religious institution at an advantage.\n\nOnce we hold that the Provincial legislature had competence to enact the impugned section, it would follow that the section would be sustained by s. 292 of the Government of India Act,\n\n1935. Indeed, the power of the Provincial legislature under the Act of 1935 was no whit less than that of the legislature which H enacted the section.\n\nAny amendment of the section in 1946 would have clear authority even under the Act of 1935. And the some may be said of the Madras Hindu Religious and Charitable Endowments Act, 1951 vi.~ a vis the Constitution.\n\n2Q8\n\nSUPREME COURT\n\nREPORTS\n\n(1966] 3 S.C.R.\n\nThe theory that contracts between the Secretary of State for India and the inam-holders came into existence after the passing of 32 & 33 Viet. c. 29 and that this took the matter out of the powers conferred by the Devoluiion Rules upon the Provincial Legislatures, is equally fallacious.\n\nWhat had really happened was this.\n\nIn 1858, when the Government of the East India Company, which held the territories in trust from the Crown, came to an end, the British Parliament passed \"An Act for the better Government of India''.\n\nWe arc not concerned with its provisions.\n\nA year later another Act was passed to amend the Act of 1858.\n\nIt provided that any deed, contract or other instrument for the purpose of disposal of real estate in India, vested in Her Majesty under the Act of 1858 must be expressed to be executed as on behalf of the Secretary of State for India or by order of the Governor General in Council or the Governor of Fort Saint George or of Bombay in Council.\n\nAlthough this statute was there, the title deeds which were issued by the Inam Commissioner were not expressed to be executed by order of the Governor in D Council and purported to have been executed on beha:f of the Governor in Council instead of on behalf of the Secretary of State for India in Council.\n\nThis created a doubt about the validity of the title created under them.\n\nBy the enactment of 32 and 33 Viet. c. 29 the title deeds for inam lands were validated.\n\nThey were to be read and to have the same effect as if they were executed by order of the Governor in Council and on behalf of the Secretary of State for India in Council.\n\nIn this way the flaw in the numerous grants was removed without having to reissue fresh title deeds.\n\nThis legislation did not create a contract.\n\nIt only validated the old title deeds and no more.\n\nTo read into the grants by which irurms were created, a contract which was inviolable exc..-pt by resumption by the Crown is to read into the Acts of British Parliament something which is not there.\n\nLike any other grant which is resumable on breach of its conditions, these inams were resumable according to their terms and conditions.\n\nThere was nothing in the inam title-deeds or the.se statute.s which inhibited the Provincial legislature from enacting s.\n\n44-B under its undoubted powers or the Collector from resuming the inam on breach of its conditions under the power granted by the section.\n\nThe other arguments on the subject of the validity of s. 44-B need not detain us.\n\nThey proceed on obliterating the difference between resumption of an inam for breach of its terms and orfei turr: which is a kind of punishment annexed by law to some 11legal\n\n- . ')\n\n• •\n\n. -\n\n_.....\n\n,_,.\n\nR. c. MISSION v. MADRAS (Hidayatul!ah, J.) 299\n\nact or negligence, in the owner or possessor of land.\n\nWe are not here concerned with forfeiture but with the resumption of a concession granted by Government, which is occasioned by the alienation of the concession to a stranger.\n\nAny argument based OD forfeiture is entirely out of place.\n\nSimilarly, the arguments based on bona vacantia or deprivation of property sufficiently indicated by the i'eliance OD the articles of the constitution mentioned earlier by us cannot help, partly because they are irrelevant and mainly because no such arguments appear to have been advanced in the High Court.\n\nWe accordingly reject the contention tha.t s. 44-B or the resumption under it were invalid.\n\nThere remains only the question of adverse possession. In Boddapalli Jogannadham and anr. v. Secretary of State(') it was held that there is no period of limitation prescribed by any Jaw within which alone Government should exercise its prerogative of imposing assessment on land liable to be assessed with public revenue.\n\nThis case was followed in Subramaniam Chettiar v.\n\n D Secretai;• of Stdte(').\n\nAs the resumption was of the melwaram only these rulings apply.\n\nMr. Ramchandra Aiyer admitted that he had no authority to the contrary.\n\nThis point has no force.\n\nThis appeal (Civil Appeal 389 of 1964) must also fail.\n\nThe two appeals will accordingly be dismissed with costs.\n\nE There will be a right to set off the costs.\n\n(l) LL.R. 27 Mad. 16.\n\n(2) ?.8 M.L.J. 392.\n\nAppeals dlsmisd.", "total_entities": 161, "entities": [{"text": "TIIE ROMAN CATHOLIC MISSION", "label": "PETITIONER", "start_char": 14, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "TIIE ROMAN CATHOLIC MISSION", "offset_not_found": false}}, {"text": "STATE OF MADRAS AND ANOTHER", "label": "RESPONDENT", "start_char": 46, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADRAS AND ANOTHER", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 98, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 126, "end_char": 139, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 142, "end_char": 157, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 159, "end_char": 171, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "P. SATYANARAYANA RAJU, JJ.", "label": "JUDGE", "start_char": 177, "end_char": 203, "source": "metadata", "metadata": {"canonical_name": "P. SATYANARAYANA RAJU", "offset_not_found": false}}, {"text": "Madras Hindu Religious Endawments Act", "label": "STATUTE", "start_char": 206, "end_char": 243, "source": "regex", "metadata": {}}, {"text": "s. 44", "label": "PROVISION", "start_char": 257, "end_char": 262, "source": "regex", "metadata": {"linked_statute_text": "Madras Hindu Religious Endawments Act", "statute": "Madras Hindu Religious Endawments Act"}}, {"text": "s. 44B", "label": "PROVISION", "start_char": 521, "end_char": 527, "source": "regex", "metadata": {"linked_statute_text": "Madras Hindu Religious Endawments Act", "statute": "Madras Hindu Religious Endawments Act"}}, {"text": "s. 44B", "label": "PROVISION", "start_char": 908, "end_char": 914, "source": "regex", "metadata": {"linked_statute_text": "Madras Hindu Religious Endawments Act", "statute": "Madras Hindu Religious Endawments Act"}}, {"text": "s. 42B", "label": "PROVISION", "start_char": 1105, "end_char": 1111, "source": "regex", "metadata": {"linked_statute_text": "Madras Hindu Religious Endawments Act", "statute": "Madras Hindu Religious Endawments Act"}}, {"text": "Provincial Legislature undeu the Government of India Act, 1915", "label": "STATUTE", "start_char": 1381, "end_char": 1443, "source": "regex", "metadata": {}}, {"text": "Devolution Rules under the Government of India Act, 1915", "label": "STATUTE", "start_char": 1692, "end_char": 1748, "source": "regex", "metadata": {}}, {"text": "s. 292", "label": "PROVISION", "start_char": 1865, "end_char": 1871, "source": "regex", "metadata": {"linked_statute_text": "the Devolution Rules under the Government of India Act, 1915", "statute": "the Devolution Rules under the Government of India Act, 1915"}}, {"text": "Section 44B", "label": "PROVISION", "start_char": 1970, "end_char": 1981, "source": "regex", "metadata": {"linked_statute_text": "the Devolution Rules under the Government of India Act, 1915", "statute": "the Devolution Rules under the Government of India Act, 1915"}}, {"text": "s. 35", "label": "PROVISION", "start_char": 2105, "end_char": 2110, "source": "regex", "metadata": {"linked_statute_text": "the Devolution Rules under the Government of India Act, 1915", "statute": "the Devolution Rules under the Government of India Act, 1915"}}, {"text": "Madras Hindu Religious and Charitable Endowments Act, 1951", "label": "STATUTE", "start_char": 2118, "end_char": 2176, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "[1966) 3 S.C.R.\n\n1", "label": "CASE_CITATION", "start_char": 2935, "end_char": 2953, "source": "regex", "metadata": {}}, {"text": "s. 448", "label": "PROVISION", "start_char": 3362, "end_char": 3368, "source": "regex", "metadata": {"statute": null}}, {"text": "S. G. Ramchandra Iyer", "label": "JUDGE", "start_char": 4174, "end_char": 4195, "source": "ner", "metadata": {"in_sentence": "S. G. Ramchandra Iyer, J. B. Dadachanji, 0."}}, {"text": "B. Dadachanji", "label": "LAWYER", "start_char": 4200, "end_char": 4213, "source": "ner", "metadata": {"in_sentence": "S. G. Ramchandra Iyer, J. B. Dadachanji, 0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 4218, "end_char": 4227, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the appellant (in C. A. No."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 4232, "end_char": 4247, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the appellant (in C. A. No."}}, {"text": "mradham Cherry", "label": "LAWYER", "start_char": 4338, "end_char": 4352, "source": "ner", "metadata": {"in_sentence": "Ran1:mradham Cherry and A. V. Rangam, for the respondent No."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 4357, "end_char": 4369, "source": "ner", "metadata": {"in_sentence": "Ran1:mradham Cherry and A. V. Rangam, for the respondent No."}}, {"text": "A. V. Viswanatha Sartri", "label": "LAWYER", "start_char": 4420, "end_char": 4443, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sartri, and R. Gopalakrislman, for the respondent No."}}, {"text": "R. Gopalakrislman", "label": "LAWYER", "start_char": 4449, "end_char": 4466, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sartri, and R. Gopalakrislman, for the respondent No."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 4596, "end_char": 4608, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Hidayatullah, J.\n\nIn village Vandiyur of Madurai Taluk there are two blocks which bear the names Melapappathu and Keelapappathu.", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "Vandiyur", "label": "GPE", "start_char": 4625, "end_char": 4633, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Hidayatullah, J.\n\nIn village Vandiyur of Madurai Taluk there are two blocks which bear the names Melapappathu and Keelapappathu."}}, {"text": "Madurai Taluk", "label": "GPE", "start_char": 4637, "end_char": 4650, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Hidayatullah, J.\n\nIn village Vandiyur of Madurai Taluk there are two blocks which bear the names Melapappathu and Keelapappathu."}}, {"text": "Melapappathu", "label": "OTHER_PERSON", "start_char": 4693, "end_char": 4705, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Hidayatullah, J.\n\nIn village Vandiyur of Madurai Taluk there are two blocks which bear the names Melapappathu and Keelapappathu.", "canonical_name": "Keelapappapathu"}}, {"text": "Keelapappathu", "label": "OTHER_PERSON", "start_char": 4710, "end_char": 4723, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Hidayatullah, J.\n\nIn village Vandiyur of Madurai Taluk there are two blocks which bear the names Melapappathu and Keelapappathu.", "canonical_name": "Keelapappapathu"}}, {"text": "Managiri", "label": "GPE", "start_char": 5074, "end_char": 5082, "source": "ner", "metadata": {"in_sentence": "These lands were originally situated in village Managiri and the lands were manyam lands, that is to say, lands held at a low assessment or altogether free in consideration of services."}}, {"text": "S1", "label": "PROVISION", "start_char": 5431, "end_char": 5433, "source": "regex", "metadata": {"statute": null}}, {"text": "Madurai", "label": "GPE", "start_char": 5459, "end_char": 5466, "source": "ner", "metadata": {"in_sentence": "It is now clear from the record and indeed it is admitted on all hands that they were the subject of an i11am granted in ancient times by the Rulers and that they were held for the performance of puja in Sri Meenakshi S1mdare\"''arnl Devasthanam, Madurai."}}, {"text": "April 9, 1948", "label": "DATE", "start_char": 5769, "end_char": 5782, "source": "ner", "metadata": {"in_sentence": "His order was passed on April 9, 1948 and purported to be under s. 44B of the Madras Hindu Religious Endowments Act, 1926 (Madras\n\nAct 2 of 1927)."}}, {"text": "s. 44B", "label": "PROVISION", "start_char": 5809, "end_char": 5815, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Hindu Religious Endowments Act, 1926", "label": "STATUTE", "start_char": 5823, "end_char": 5866, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Devasthanam", "label": "PETITIONER", "start_char": 5941, "end_char": 5952, "source": "ner", "metadata": {"in_sentence": "The inam lands were resumed and regranted to the Devasthanam.", "canonical_name": "Devasthanam"}}, {"text": "s. 44B( 4)", "label": "PROVISION", "start_char": 6221, "end_char": 6231, "source": "regex", "metadata": {"linked_statute_text": "the Madras Hindu Religious Endowments Act, 1926", "statute": "the Madras Hindu Religious Endowments Act, 1926"}}, {"text": "March 13, 1949", "label": "DATE", "start_char": 6273, "end_char": 6287, "source": "ner", "metadata": {"in_sentence": "The appeal was dismissed on March 13, 1949."}}, {"text": "s. 44B(2)", "label": "PROVISION", "start_char": 6473, "end_char": 6482, "source": "regex", "metadata": {"linked_statute_text": "the Madras Hindu Religious Endowments Act, 1926", "statute": "the Madras Hindu Religious Endowments Act, 1926"}}, {"text": "S. 1", "label": "PROVISION", "start_char": 6959, "end_char": 6963, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44B", "label": "PROVISION", "start_char": 7179, "end_char": 7185, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras", "label": "GPE", "start_char": 7378, "end_char": 7384, "source": "ner", "metadata": {"in_sentence": "The Province of Madras (now the State of Madras) and Sri Meenakshi Sundareswaral Devasthanam, Madurai were made defendants."}}, {"text": "Meenakshi Sundareswaral Devasthanam", "label": "LAWYER", "start_char": 7419, "end_char": 7454, "source": "ner", "metadata": {"in_sentence": "The Province of Madras (now the State of Madras) and Sri Meenakshi Sundareswaral Devasthanam, Madurai were made defendants.", "canonical_name": "Meenakshi Sundareswaral Devasthanam"}}, {"text": "S. 2", "label": "PROVISION", "start_char": 7595, "end_char": 7599, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44B", "label": "PROVISION", "start_char": 7815, "end_char": 7821, "source": "regex", "metadata": {"statute": null}}, {"text": "Deva", "label": "OTHER_PERSON", "start_char": 7922, "end_char": 7926, "source": "ner", "metadata": {"in_sentence": "S. 2 of 1954 the same finding was repeated and it was further held that the order of resumption was invalid and without jurisdiction since the inams in question were personal inams and did not come within the purview of s. 44B.\n\nThe District Judge granted a declara•ion to that effect and also issued an injunction against the Deva, thanam which had .not taken possession of the land till then."}}, {"text": "S. 1", "label": "PROVISION", "start_char": 8018, "end_char": 8022, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 2", "label": "PROVISION", "start_char": 8085, "end_char": 8089, "source": "regex", "metadata": {"statute": null}}, {"text": "Devasthanam", "label": "PETITIONER", "start_char": 8102, "end_char": 8113, "source": "ner", "metadata": {"in_sentence": "S. 2 of 1954 the Devasthanam and th~ State of Madras filed anneals.", "canonical_name": "Devasthanam"}}, {"text": "State of Madras", "label": "ORG", "start_char": 8122, "end_char": 8137, "source": "ner", "metadata": {"in_sentence": "S. 2 of 1954 the Devasthanam and th~ State of Madras filed anneals."}}, {"text": "S. 734", "label": "PROVISION", "start_char": 8157, "end_char": 8163, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 1", "label": "PROVISION", "start_char": 8239, "end_char": 8243, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 773 and 787", "label": "PROVISION", "start_char": 8301, "end_char": 8315, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 2", "label": "PROVISION", "start_char": 8342, "end_char": 8346, "source": "regex", "metadata": {"statute": null}}, {"text": "Meenakshi Sundareswaral", "label": "LAWYER", "start_char": 8388, "end_char": 8411, "source": "ner", "metadata": {"in_sentence": "S. 2 of 1954 by A the State of Madras and Sri Meenakshi Sundareswaral, etc.", "canonical_name": "Meenakshi Sundareswaral Devasthanam"}}, {"text": "December 14, 1959", "label": "DATE", "start_char": 8493, "end_char": 8510, "source": "ner", "metadata": {"in_sentence": "The High Court decided all the three appeals on December 14, 1959 pronouncing a separate judgment 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S. 7 34 of 1954 and disposing of the other two appeals by a commoa •' judgment."}}, {"text": "S. 7", "label": "PROVISION", "start_char": 8549, "end_char": 8553, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 2", "label": "PROVISION", "start_char": 8864, "end_char": 8868, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44B", "label": "PROVISION", "start_char": 9106, "end_char": 9112, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 2", "label": "PROVISION", "start_char": 9400, "end_char": 9404, "source": "regex", "metadata": {"statute": null}}, {"text": "Althougfi", "label": "OTHER_PERSON", "start_char": 10184, "end_char": 10193, "source": "ner", "metadata": {"in_sentence": "Althougfi the right in respect of the concession in theerva was made out in the names of the Bhattars who were the Archakas of the Devasthanam, both the concession as well as the land were subjected to alienations."}}, {"text": "May 12, 1861", "label": "DATE", "start_char": 10412, "end_char": 10424, "source": "ner", "metadata": {"in_sentence": "Even before May 12, 1861 half of Melapappa- G .pathu was purchased by one Krishnaswamy Chettiar, son of Andiappa Chettiar, and the otheihalf was purchaed by him on May 1, 1861."}}, {"text": "Krishnaswamy", "label": "OTHER_PERSON", "start_char": 10474, "end_char": 10486, "source": "ner", "metadata": {"in_sentence": "Even before May 12, 1861 half of Melapappa- G .pathu was purchased by one Krishnaswamy Chettiar, son of Andiappa Chettiar, and the otheihalf was purchaed by him on May 1, 1861.", "canonical_name": "Krishnaswami Chettiar"}}, {"text": "Andiappa Chettiar", "label": "OTHER_PERSON", "start_char": 10504, "end_char": 10521, "source": "ner", "metadata": {"in_sentence": "Even before May 12, 1861 half of Melapappa- G .pathu was purchased by one Krishnaswamy Chettiar, son of Andiappa Chettiar, and the otheihalf was purchaed by him on May 1, 1861."}}, {"text": "May 1, 1861", "label": "DATE", "start_char": 10564, "end_char": 10575, "source": "ner", "metadata": {"in_sentence": "Even before May 12, 1861 half of Melapappa- G .pathu was purchased by one Krishnaswamy Chettiar, son of Andiappa Chettiar, and the otheihalf was purchaed by him on May 1, 1861."}}, {"text": "Krishnaswami Chettiar", "label": "OTHER_PERSON", "start_char": 10589, "end_char": 10610, "source": "ner", "metadata": {"in_sentence": "Similarly, Krishnaswami Chettiar had purchased a half of Keelapappapathu from the original proprietors.", "canonical_name": "Krishnaswami Chettiar"}}, {"text": "January 4, 1863", "label": "DATE", "start_char": 10686, "end_char": 10701, "source": "ner", "metadata": {"in_sentence": "On January 4, 1863 one half share in Melapappapathu was ur- H chased by one Chockalingam Pillai from Krishnaswamy Chettiar."}}, {"text": "Melapappapathu", "label": "GPE", "start_char": 10720, "end_char": 10734, "source": "ner", "metadata": {"in_sentence": "On January 4, 1863 one half share in 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"canonical_name": "Muthuramalingam Pillai"}}, {"text": "Chockalingam", "label": "OTHER_PERSON", "start_char": 11022, "end_char": 11034, "source": "ner", "metadata": {"in_sentence": "In October 1864 Chockalingam granted a formal release in favour of Muthuramalingam.", "canonical_name": "Chockalingam Pillai"}}, {"text": "July 18, 1867", "label": "DATE", "start_char": 11233, "end_char": 11246, "source": "ner", "metadata": {"in_sentence": "The other half of Keelapappapathu, which continued with the original proprietors was sold by them to Krishnaswamy Chettiar (less one kani) on July 18, 1867."}}, {"text": "June 25, 1870", "label": "DATE", "start_char": 11252, "end_char": 11265, "source": "ner", "metadata": {"in_sentence": "On June 25, 1870 Muthuramalingam Pillai executed a usufructuary mortgage of a part of the land released in his favour, to one V airavalingam Pillai son of Muthuramalingam Pillai."}}, {"text": "Muthuramalingam Pillai", "label": "OTHER_PERSON", "start_char": 11266, "end_char": 11288, "source": "ner", "metadata": {"in_sentence": "On June 25, 1870 Muthuramalingam Pillai executed a usufructuary mortgage of a part of the land released in his favour, to one V airavalingam Pillai son of Muthuramalingam Pillai.", "canonical_name": "Muthuramalingam Pillai"}}, {"text": "V airavalingam Pillai", "label": "OTHER_PERSON", "start_char": 11375, "end_char": 11396, "source": "ner", "metadata": {"in_sentence": "On June 25, 1870 Muthuramalingam Pillai executed a usufructuary mortgage of a part of the land released in his favour, to one V airavalingam Pillai son of Muthuramalingam Pillai."}}, {"text": "December 14; 1871", "label": "DATE", "start_char": 11511, "end_char": 11528, "source": "ner", "metadata": {"in_sentence": "On December 14; 1871 Muthuramalingam's widow, Adaikalathammal, sold, on behalf of her minor son Muthuswami Pillai, half share of Melapappapathu and the quarter share of Keelapappapathu to Krishnaswami Chettiar."}}, {"text": "Adaikalathammal", "label": "OTHER_PERSON", "start_char": 11554, "end_char": 11569, "source": "ner", "metadata": {"in_sentence": "On December 14; 1871 Muthuramalingam's widow, Adaikalathammal, sold, on behalf of her minor son Muthuswami Pillai, half share of Melapappapathu and the quarter share of Keelapappapathu to Krishnaswami Chettiar."}}, {"text": "Muthuswami Pillai", "label": "OTHER_PERSON", "start_char": 11604, "end_char": 11621, "source": "ner", "metadata": {"in_sentence": "On December 14; 1871 Muthuramalingam's widow, Adaikalathammal, sold, on behalf of her minor son Muthuswami Pillai, half share of Melapappapathu and the quarter share of Keelapappapathu to Krishnaswami Chettiar."}}, {"text": "Melapappapathu", "label": "OTHER_PERSON", "start_char": 11637, "end_char": 11651, "source": "ner", "metadata": {"in_sentence": "On December 14; 1871 Muthuramalingam's widow, Adaikalathammal, sold, on behalf of her minor son Muthuswami Pillai, half share of Melapappapathu and the quarter share of Keelapappapathu to Krishnaswami Chettiar.", "canonical_name": "Keelapappapathu"}}, {"text": "Keelapappapathu", "label": "OTHER_PERSON", "start_char": 11677, "end_char": 11692, "source": "ner", "metadata": {"in_sentence": "On December 14; 1871 Muthuramalingam's widow, Adaikalathammal, sold, on behalf of her minor son Muthuswami Pillai, half share of Melapappapathu and the quarter share of Keelapappapathu to Krishnaswami Chettiar.", "canonical_name": "Keelapappapathu"}}, {"text": "September 11, 1872", "label": "DATE", "start_char": 11805, "end_char": 11823, "source": "ner", "metadata": {"in_sentence": "The mortgage of June 25, 1870 was paid off and Krishnaswamy redeemed the property on September 11, 1872."}}, {"text": "June 17, 1872", "label": "DATE", "start_char": 11941, "end_char": 11954, "source": "ner", "metadata": {"in_sentence": "On June 17, 1872, Krishnaswamy Chettiar purchased that land and in this way he became owner of all the lands comprised in these two appeals."}}, {"text": "October 20, 1894", "label": "DATE", "start_char": 12278, "end_char": 12294, "source": "ner", "metadata": {"in_sentence": "On October 20, 1894, the Roman Catholic Mission purchased for Rs."}}, {"text": "Malapappapathu", "label": "GPE", "start_char": 12381, "end_char": 12395, "source": "ner", "metadata": {"in_sentence": "6,500 the greater part of Malapappapathu."}}, {"text": "Anthonimuthu", "label": "OTHER_PERSON", "start_char": 12487, "end_char": 12499, "source": "ner", "metadata": {"in_sentence": "E The remaining portion of this block and the Keelapappapathu block was purchased by one Anthonimuthu and when he set up his own title the Mission sued him and obtained a decree in\n\n0."}}, {"text": "S. 45", "label": "PROVISION", "start_char": 12583, "end_char": 12588, "source": "regex", "metadata": {"statute": null}}, {"text": "Sub-Court, Madurai West", "label": "COURT", "start_char": 12606, "end_char": 12629, "source": "ner", "metadata": {"in_sentence": "S. 45 of 1895 from the Sub-Court, Madurai West."}}, {"text": "s. 44B", "label": "PROVISION", "start_char": 13274, "end_char": 13280, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Hindu Religious Endowments Act, 1926", "label": "STATUTE", "start_char": 13288, "end_char": 13331, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 448", "label": "PROVISION", "start_char": 14129, "end_char": 14135, "source": "regex", "metadata": {"linked_statute_text": "the Madras Hindu Religious Endowments Act, 1926", "statute": "the Madras Hindu Religious Endowments Act, 1926"}}, {"text": "Court of Subordinate Judge, Madurai", "label": "COURT", "start_char": 14867, "end_char": 14902, "source": "ner", "metadata": {"in_sentence": "124 C'f 1944 of the Court of Subordinate Judge, Madurai."}}, {"text": "Keelapappapathu", "label": "GPE", "start_char": 15192, "end_char": 15207, "source": "ner", "metadata": {"in_sentence": "B-4 is a karalnama\n\n(agreement) executed for the fasli years 1348 and 1349 by which E the lessees undertook to hand over I /3 share of the produce as melwaram and to retain 2/3 share as kudiwaram from the lands leased out of Keelapappapathu."}}, {"text": "Keelapappapath11", "label": "GPE", "start_char": 15353, "end_char": 15369, "source": "ner", "metadata": {"in_sentence": "B-6 is a muchi/ika in respect of nanja lands in Keelapappapath11 by which lessee undertook to pay half produce as melwaram and to retain the other half as kudiwaram."}}, {"text": "Managiri village", "label": "GPE", "start_char": 15984, "end_char": 16000, "source": "ner", "metadata": {"in_sentence": "A-3 is an extract from the village account of Managiri village, Mandakulam Taluk relating to inams."}}, {"text": "Mandakulam Taluk", "label": "GPE", "start_char": 16002, "end_char": 16018, "source": "ner", "metadata": {"in_sentence": "A-3 is an extract from the village account of Managiri village, Mandakulam Taluk relating to inams."}}, {"text": "September 25, 1863", "label": "DATE", "start_char": 17552, "end_char": 17570, "source": "ner", "metadata": {"in_sentence": "A-10 and A 11, which are the lnam statements ( 1862) and the Inam Fair Register D dated September 25, 1863."}}, {"text": "Pnruppu Manibam", "label": "OTHER_PERSON", "start_char": 17586, "end_char": 17601, "source": "ner", "metadata": {"in_sentence": "the Sta/athnr Pnruppu Manibam is again mentioned and the Inam were registered in the name; of Bhattars as the Sthaniks of the temple ."}}, {"text": "Bhattars", "label": "OTHER_PERSON", "start_char": 17666, "end_char": 17674, "source": "ner", "metadata": {"in_sentence": "the Sta/athnr Pnruppu Manibam is again mentioned and the Inam were registered in the name; of Bhattars as the Sthaniks of the temple ."}}, {"text": "Mutbu Meenakshi", "label": "LAWYER", "start_char": 17818, "end_char": 17833, "source": "ner", "metadata": {"in_sentence": "A-64 of 1876 by which Mutbu Meenakshi had mortgaged her Melwaram interest in half of the inam for 20 years in favour of Krishnaswamy Chettiar.", "canonical_name": "Muthu Meenakshi Ammal"}}, {"text": "Muthu Meenakshiammal", "label": "LAWYER", "start_char": 17939, "end_char": 17959, "source": "ner", "metadata": {"in_sentence": "Muthu Meenakshiammal was the wife of Vikramapandia Battar the sthaneekam of the Devasthanam.", "canonical_name": "Muthu Meenakshi Ammal"}}, {"text": "Vikramapandia Battar", "label": "OTHER_PERSON", "start_char": 17976, "end_char": 17996, "source": "ner", "metadata": {"in_sentence": "Muthu Meenakshiammal was the wife of Vikramapandia Battar the sthaneekam of the Devasthanam."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 19857, "end_char": 19874, "source": "ner", "metadata": {"in_sentence": "The High Court has relied upon a decision of the Madras High Court in Rasa Kondon v. lanaki Ammal.(')"}}, {"text": "Section 44", "label": "PROVISION", "start_char": 21225, "end_char": 21235, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Act XI of 1934", "label": "STATUTE", "start_char": 21309, "end_char": 21330, "source": "regex", "metadata": {}}, {"text": "Amendment Act X of 1946", "label": "STATUTE", "start_char": 21388, "end_char": 21411, "source": "regex", "metadata": {}}, {"text": "British Government", "label": "ORG", "start_char": 22798, "end_char": 22816, "source": "ner", "metadata": {"in_sentence": "or on the application of the trustee of the math or temple or of the Assistant Commissioner or of the Board or of any person having interest in the math or temple who has obtained the consent of such trustee, Assistant Commissioner or Board, by order, resume the whole or any part of any such inam, on one or more of the following grounds, namely :-\n\n(i) that the holder of such inam or part has made an exchange, gift, sale or mortgage of the same or any portion thereof or has granted a lease of the same or any portion thereof for a term exceeding five years, or\n\n(ii) that the holder of such inam or part lias failed' to perform or make the necessary arrangements for performing, in accordance with the custom or usage of such math or temple, the charity or service for performing which the inam had been made, confirmed or recognized by the British Government, or any part of the said charity or service, as the case may be, or\n\n(iii) that the math or temple has ceased to exist or the charity or service in question has in any way become impossible of performance."}}, {"text": "s. 44", "label": "PROVISION", "start_char": 23542, "end_char": 23547, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 23685, "end_char": 23690, "source": "regex", "metadata": {"statute": null}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 23925, "end_char": 23939, "source": "ner", "metadata": {"in_sentence": "In dealing with these two distinct aspects of an inam grant, Gajendragadkar J. (as he then was) and Wanchoo J. point out that the former is not a case of a service grant proper and such a grant can only be resumed if the conditions of the grant contemplate a resumption when the service is not performed."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 23964, "end_char": 23971, "source": "ner", "metadata": {"in_sentence": "In dealing with these two distinct aspects of an inam grant, Gajendragadkar J. (as he then was) and Wanchoo J. point out that the former is not a case of a service grant proper and such a grant can only be resumed if the conditions of the grant contemplate a resumption when the service is not performed."}}, {"text": "s. 44", "label": "PROVISION", "start_char": 24315, "end_char": 24320, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 25324, "end_char": 25329, "source": "regex", "metadata": {"statute": null}}, {"text": "Religious Endowments Act", "label": "STATUTE", "start_char": 25667, "end_char": 25691, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 44", "label": "PROVISION", "start_char": 25804, "end_char": 25809, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 26497, "end_char": 26502, "source": "regex", "metadata": {"statute": null}}, {"text": "Inam Commission", "label": "ORG", "start_char": 29219, "end_char": 29234, "source": "ner", "metadata": {"in_sentence": "Jn Narayan Bhagwantrao Gosavi Ba/ajiwa/a v.\n\nGopa/ Vinayak Gosavi(') this Court held, accepting the finding of the Inam Commission, in the absence of other evidence, that the grant was to a\n\nDevasthan and constituted a Dcvasthan Inam."}}, {"text": "Ramachandra Aiyer", "label": "OTHER_PERSON", "start_char": 29344, "end_char": 29361, "source": "ner", "metadata": {"in_sentence": "Mr. Ramachandra Aiyer attempted to prove to us that the expression 'act of state' in the Privy Council judgment was a misuse of the term and cited some cases where the act of state has been discussed.", "canonical_name": "Ram\n\nF chandra Aiyar"}}, {"text": "Muthumeenak-hi ammal", "label": "LAWYER", "start_char": 31556, "end_char": 31576, "source": "ner", "metadata": {"in_sentence": "A-10, which is a statement of Muthumeenak-hi ammal who was in enjoyment of the inam in 1863, it is stated:\n\n\" Particulars as to how the inam was obtained and the abstract of the deeds. (", "canonical_name": "Muthu Meenakshi Ammal"}}, {"text": "Meenakshi Sundareswaral", "label": "LAWYER", "start_char": 31846, "end_char": 31869, "source": "ner", "metadata": {"in_sentence": "previous Government for sthalathar inam of Meenakshi Sundareswaral and just as our predecesors enjoyed, we also in the aforesaid manibam, I Muthu Meenakshi Ammal half share, I Ponnammal 1/4th share, we Kalyana Battar and Bhinna Subba Battar 1/Sth share and we Villu Battar alias Shunmuga Sundara Battar 1/Sth share, we are in enjoyment of the aforesaid Maniba lands in the aforesaid manner and we are paying the poruppu manyam due in respect thereof as per our proportionate share and we are also remaining in enjoyment of the said Manibams as our predecessors enjoyed .", "canonical_name": "Meenakshi Sundareswaral Devasthanam"}}, {"text": "Muthu Meenakshi Ammal", "label": "LAWYER", "start_char": 31943, "end_char": 31964, "source": "ner", "metadata": {"in_sentence": "previous Government for sthalathar inam of Meenakshi Sundareswaral and just as our predecesors enjoyed, we also in the aforesaid manibam, I Muthu Meenakshi Ammal half share, I Ponnammal 1/4th share, we Kalyana Battar and Bhinna Subba Battar 1/Sth share and we Villu Battar alias Shunmuga Sundara Battar 1/Sth share, we are in enjoyment of the aforesaid Maniba lands in the aforesaid manner and we are paying the poruppu manyam due in respect thereof as per our proportionate share and we are also remaining in enjoyment of the said Manibams as our predecessors enjoyed .", "canonical_name": "Muthu Meenakshi Ammal"}}, {"text": "Ponnammal", "label": "OTHER_PERSON", "start_char": 31979, "end_char": 31988, "source": "ner", "metadata": {"in_sentence": "previous Government for sthalathar inam of Meenakshi Sundareswaral and just as our predecesors enjoyed, we also in the aforesaid manibam, I Muthu Meenakshi Ammal half share, I Ponnammal 1/4th share, we Kalyana Battar and Bhinna Subba Battar 1/Sth share and we Villu Battar alias Shunmuga Sundara Battar 1/Sth share, we are in enjoyment of the aforesaid Maniba lands in the aforesaid manner and we are paying the poruppu manyam due in respect thereof as per our proportionate share and we are also remaining in enjoyment of the said Manibams as our predecessors enjoyed ."}}, {"text": "Kalyana Battar", "label": "OTHER_PERSON", "start_char": 32005, "end_char": 32019, "source": "ner", "metadata": {"in_sentence": "previous Government for sthalathar inam of Meenakshi Sundareswaral and just as our predecesors enjoyed, we also in the aforesaid manibam, I Muthu Meenakshi Ammal half share, I Ponnammal 1/4th share, we Kalyana Battar and Bhinna Subba Battar 1/Sth share and we Villu Battar alias Shunmuga Sundara Battar 1/Sth share, we are in enjoyment of the aforesaid Maniba lands in the aforesaid manner and we are paying the poruppu manyam due in respect thereof as per our proportionate share and we are also remaining in enjoyment of the said Manibams as our predecessors enjoyed ."}}, {"text": "Bhinna Subba Battar", "label": "OTHER_PERSON", "start_char": 32024, "end_char": 32043, "source": "ner", "metadata": {"in_sentence": "previous Government for sthalathar inam of Meenakshi Sundareswaral and just as our predecesors enjoyed, we also in the aforesaid manibam, I Muthu Meenakshi Ammal half share, I Ponnammal 1/4th share, we Kalyana Battar and Bhinna Subba Battar 1/Sth share and we Villu Battar alias Shunmuga Sundara Battar 1/Sth share, we are in enjoyment of the aforesaid Maniba lands in the aforesaid manner and we are paying the poruppu manyam due in respect thereof as per our proportionate share and we are also remaining in enjoyment of the said Manibams as our predecessors enjoyed ."}}, {"text": "Villu Battar alias Shunmuga Sundara Battar", "label": "OTHER_PERSON", "start_char": 32063, "end_char": 32105, "source": "ner", "metadata": {"in_sentence": "previous Government for sthalathar inam of Meenakshi Sundareswaral and just as our predecesors enjoyed, we also in the aforesaid manibam, I Muthu Meenakshi Ammal half share, I Ponnammal 1/4th share, we Kalyana Battar and Bhinna Subba Battar 1/Sth share and we Villu Battar alias Shunmuga Sundara Battar 1/Sth share, we are in enjoyment of the aforesaid Maniba lands in the aforesaid manner and we are paying the poruppu manyam due in respect thereof as per our proportionate share and we are also remaining in enjoyment of the said Manibams as our predecessors enjoyed ."}}, {"text": "s. 44", "label": "PROVISION", "start_char": 32607, "end_char": 32612, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 32649, "end_char": 32654, "source": "regex", "metadata": {"statute": null}}, {"text": "Standing Order of the Board of Revenue Rule", "label": "STATUTE", "start_char": 32715, "end_char": 32758, "source": "regex", "metadata": {}}, {"text": "Ram\n\nF chandra Aiyar", "label": "OTHER_PERSON", "start_char": 32822, "end_char": 32842, "source": "ner", "metadata": {"in_sentence": "Mr. Ram\n\nF chandra Aiyar even attempted to question the correctness of this case, which has been followed consistently.", "canonical_name": "Ram\n\nF chandra Aiyar"}}, {"text": "Ramchandra Aiyer", "label": "OTHER_PERSON", "start_char": 33103, "end_char": 33119, "source": "ner", "metadata": {"in_sentence": "Mr. Ramchandra Aiyer next contends that s. 44-B was void G when the legislature purported to enact it, and, therefore, no action could be taken under it.", "canonical_name": "Ram\n\nF chandra Aiyar"}}, {"text": "s. 44", "label": "PROVISION", "start_char": 33139, "end_char": 33144, "source": "regex", "metadata": {"linked_statute_text": "Standing Order of the Board of Revenue Rule", "statute": "Standing Order of the Board of Revenue Rule"}}, {"text": "India", "label": "GPE", "start_char": 33988, "end_char": 33993, "source": "ner", "metadata": {"in_sentence": "c. 29) the right to forfeit the lnam concession or to resume it could be exercised by the Crown only as the inam became a contract between the Secretary of State for India and the inam-holder."}}, {"text": "Section 44", "label": "PROVISION", "start_char": 34016, "end_char": 34026, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 299", "label": "PROVISION", "start_char": 34482, "end_char": 34488, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 31 and 296", "label": "PROVISION", "start_char": 34531, "end_char": 34547, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Hindu Religious and Charitable Endow- C ments Act", "label": "STATUTE", "start_char": 34569, "end_char": 34625, "source": "regex", "metadata": {}}, {"text": "s. 35", "label": "PROVISION", "start_char": 34649, "end_char": 34654, "source": "regex", "metadata": {"linked_statute_text": "Madras Hindu Religious and Charitable Endow- C ments Act", "statute": "Madras Hindu Religious and Charitable Endow- C ments Act"}}, {"text": "s. 44", "label": "PROVISION", "start_char": 34665, "end_char": 34670, "source": "regex", "metadata": {"linked_statute_text": "Madras Hindu Religious and Charitable Endow- C ments Act", "statute": "Madras Hindu Religious and Charitable Endow- C ments Act"}}, {"text": "s. 44", "label": "PROVISION", "start_char": 34866, "end_char": 34871, "source": "regex", "metadata": {"linked_statute_text": "Madras Hindu Religious and Charitable Endow- C ments Act", "statute": "Madras Hindu Religious and Charitable Endow- C ments Act"}}, {"text": "Government of India Act 1915", "label": "STATUTE", "start_char": 34920, "end_char": 34948, "source": "regex", "metadata": {}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 34957, "end_char": 34986, "source": "regex", "metadata": {}}, {"text": "s. 35", "label": "PROVISION", "start_char": 35772, "end_char": 35777, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "powers of the Provincial legislatures under the Government of India Act, 1915", "label": "STATUTE", "start_char": 36044, "end_char": 36121, "source": "regex", "metadata": {}}, {"text": "ss. 45", "label": "PROVISION", "start_char": 36211, "end_char": 36217, "source": "regex", "metadata": {"linked_statute_text": "The powers of the Provincial legislatures under the Government of India Act, 1915", "statute": "The powers of the Provincial legislatures under the Government of India Act, 1915"}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 36759, "end_char": 36769, "source": "regex", "metadata": {"linked_statute_text": "The powers of the Provincial legislatures under the Government of India Act, 1915", "statute": "The powers of the Provincial legislatures under the Government of India Act, 1915"}}, {"text": "Section 44", "label": "PROVISION", "start_char": 38094, "end_char": 38104, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 292", "label": "PROVISION", "start_char": 38798, "end_char": 38804, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act", "label": "STATUTE", "start_char": 38812, "end_char": 38835, "source": "regex", "metadata": {}}, {"text": "And the some may be said of the Madras Hindu Religious and Charitable Endowments Act, 1951", "label": "STATUTE", "start_char": 39082, "end_char": 39172, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Government of the East India Company", "label": "ORG", "start_char": 39592, "end_char": 39628, "source": "ner", "metadata": {"in_sentence": "In 1858, when the Government of the East India Company, which held the territories in trust from the Crown, came to an end, the British Parliament passed \"An Act for the better Government of India''."}}, {"text": "British Parliament", "label": "ORG", "start_char": 39702, "end_char": 39720, "source": "ner", "metadata": {"in_sentence": "In 1858, when the Government of the East India Company, which held the territories in trust from the Crown, came to an end, the British Parliament passed \"An Act for the better Government of India''."}}, {"text": "Her Majesty under the Act", "label": "STATUTE", "start_char": 40000, "end_char": 40025, "source": "regex", "metadata": {}}, {"text": "Fort Saint George", "label": "GPE", "start_char": 40182, "end_char": 40199, "source": "ner", "metadata": {"in_sentence": "It provided that any deed, contract or other instrument for the purpose of disposal of real estate in India, vested in Her Majesty under the Act of 1858 must be expressed to be executed as on behalf of the Secretary of State for India or by order of the Governor General in Council or the Governor of Fort Saint George or of Bombay in Council."}}, {"text": "Bombay", "label": "GPE", "start_char": 40206, "end_char": 40212, "source": "ner", "metadata": {"in_sentence": "It provided that any deed, contract or other instrument for the purpose of disposal of real estate in India, vested in Her Majesty under the Act of 1858 must be expressed to be executed as on behalf of the Secretary of State for India or by order of the Governor General in Council or the Governor of Fort Saint George or of Bombay in Council."}}, {"text": "s.\n\n44", "label": "PROVISION", "start_char": 41526, "end_char": 41532, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 41725, "end_char": 41730, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 42654, "end_char": 42659, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_300_313_EN", "year": 1966, "text": "SHEODAN SINGH\n\nI'.\n\nSMT. DARYAO KUNWAR\n\nJanuary 14, 1966\n\n[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO, Y. RA~SWAMI\n\nAND P. SATYANARAYANA RAJU, JJ.)\n\nCode of civil Procedure (Act 5 of 1908). s. I I-Appeals diomissed tU time ba\"ed, failure to print records-If res judicata in conMcted appeal6.\n\nThe appellant filed two suits in the Court of lhe Civil Judge, one for declaration of his title to the suit property and lhc second for other reliefs.\n\nWhile these suits were pending the respondent instituted two suits in the Munsif\"s court against the appellant claiming joint ownership to the sail proP.\"rty and other n:lieh. The four suits were tried together by the Qvil Judge.\n\nSome of the i>lues were common to all the suits and one of tho common i>.iues rolating to the title of the parties were found in favour of the respondeoL The Civil Judge dismi...oo the appellant's title suit, decreed his other suit partly, and decreed the two suits of the rcsponden I. The appellant filed appeak against the decree in each suit. The High Coull dismissed the two appeals arising out of tho respondent\"• suits,\n\none as time barn:d, and the other for failure to apply for translation and printing of the record.\n\nAs the 1ille of the respondent to the suit property bad become final on account of such dismissal, the respondent prayed for the dismissal o[ the other lwo appeals also, as the main question involved therein, was the samo.\n\nThe High Court agreed that tho appeals were barred by res iudicata and dismissed them. Against these orders of dis\n\n~. the appellant filed appeals to this Court, and condcd that (i) the title to lhc property was not directly and >ubstantially in issue in the respondent's suits; (ii) The Munsifs Court could not try the titlo suit filed by the appellant; (iii) it could not bo said that appeals arising out of the respondent\"< suits were Conner suits and \"\" such the dtcismn therein would bo res ; udicata and (iv) the two appeals dismisscd--0no on the ground of limitation, and lhe other on lhe gr011J1d of not printinii the\n\nreconls, could not be said to be heard and finally decided. y\n\nHELD : The appeals must be dismissed. (il '!be contention that tho issue as to title was not directly and •ubs 1an1ially in issue in the respondent's suits must be rejected.\n\nThe judg ment of the Civil Judge showed that this issue was raised in the respon dent's suits, that it was directly and substantially in issue in those suits also, and did arise out of the pleading'< of the parties. [306 CJ\n\n(ii) It is the court which decides the fonner suit whose jurisdiction to try tho subsequent suit has to be considered, and not the court in which the former suit may have been filed.\n\nThough the n:spondent\"s sulla may line beeo iled in the Munsif's court, they wore ttanaferred to tho court of the Civil Judge and were decided by him.\n\nTherefore, the contention that the Munsif before whom the n:spondeot's suits were filed, could not try the subsequent title suit of the appell:int had no force. [306 El\n\n(iii) The High Court's decision in tho two apls arising from tho JlOIPOndent's suits were undoubtedly earlier and tben:foro the condition that there should have been a decision in a former suit 10 give rise to ru ; udic:ata in a subsequent suit was satisfied in the present case. [307 CJ\n\n. ,\n\n• • ' .-·\n\n-\"\"\n\nA Nahari v. Shanker, [1950) S.C.R. 754, distinguished.\n\n(iv) Where the trial coun has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is\n\nilismissed on some preliminary ground, like limitation or default in printing. with tho result that the trial court's decision stands confirmed, the decision or the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a caoc the result of the decision of the appeal coun is to confirm the decision of the trial court given on merits, and if that is so, the decision of the appeal court will be res judicata whatever may be the reason to~ the disrnisssl. It would be a different matter, however, where the declSion of the appeal court does not result in the confirmation of tho decision of the trial court given on the merits, as for example, where the appeal court hold that tho trial court had no jurisdiction and dismisses the appeal, even though the trial court might have dismis.sed the suit on the\n\nmecits. [308 D, G; 309 A]\n\nSha1tkar Sahai v. Bhagwat. Sahai, A.I.R. 1946 Oudh 33 and Obedur Rahman v. Darbari Lal, A.l.R. 1927 Lah. I, overruled.\n\nCaso law discussed.\n\nOVIL APPELLATE JurusDICTJON : Civil Appeal Nos. 802 and 803 of 1963.\n\nAppeals by special leave from the judgment and decree dated November 30, 1962 of the Allahabad High Court in First Appeals Nos. 365 and 366 of 1951.\n\nM. V. Goswami and B. C. Misra, for the appellant.\n\nPrayag Das and /. P. Goyal, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nWanchoo. J. These are connected appeals by special leave against the judgment of the High Court of Allahabad, and the only question raised herein is one of res judicata. They will be dealt with together. The appellant's father brought suit No. 37 of 1950\n\nagainst the respondent, Smt. Daryao Kunwar, for a declaration that he was the owner of the properties in suit and for possession in the alternative. The appellant was also a party to the suit as a proforma defendant. Since his father is dead, he has been substituted in his place. The case put forward in the plaint was that Harnam Singh was the uncle of the appellant's father.\n\nRam Kishan was the adopted son of Harnam Singh, and the respondent is his widow.\n\nThe appellant and his father were living jointly with Harnam Singh and his adopted son Ram Kishan and on the death of Harnam Singh and his adopted son, the appellant and his father became owners of the joint properties by survivorship; but the names of the widows of Harnam Singh and Ram Kishan were entered in revenue papers for their consolation, though they had no right or title to any part of the property in dispute. There were other allegations in the plaint with which we are however not concerned in the present appeals.\n\nShortly afterwards the appellant's father filed another suit No. 42 of 1950 against the respondent and one other person claiming the price of the crops which stood on certain sir and khudkaskat plots in two villages on the allegation that the respondent had cut and misappropriated the crops standing on these plots without having any right, title or interest therein. The respondent Smt.\n\nDaryao Kunwar contested both the suits.\n\nHer main defence was that there had been complete partition in the family as a result of which Harnam Singh and after him his adopted son Ram Kishan were the sole owners of their separated shares. After the death of Rm Kishan, the respondent inherited his entire property as his widow.\n\nBoth these suits had been filed in the court of the C'ivil Judge.\n\nWhile these suits were pending, the respondent instituted two suits of her own, Nos. 77 and 91of1950, against the appellant and his father.\n\nSuit No. 77 was for recovery of the price of her share of the crop grown on certain sir and khudkashat plots which had been cut and misappropriated by the appellant and his father. Suit No. 9lwas also for a similar relief in respect of the respondent's share of crops grown on certain sir and khudkashat plots in another village which had also been cut and misappropriated by the appellant and his father.\n\nHer case was thatthe plots in question in both the villages belonged to the parties jointly and the crop was jointly sown by them and she was entitled to half of the said crops. Further in suit No. 77 of 1950 she also claimed the relief of permanent injunction restraining the appellant and his father from letting out the said plots without her consent. These two suits were filed in the court of the Munsif while suits filed by the appellant's father had been instituted in the court of the Civil Judge. Subsequently by an order of the District Judge, the two suits filed by the respondent were transferred to the court of the Civil Judge. Thereafter all the four suits were consolidated and tried together by the Civil Judge with the consent of the parties. All these suits were disposed of by a common judgment but separate decrees were prepared in each suit. In all these suits five issues were common. In addition there were other issues in each case respecting the particular merits thereof. One of the common issues related to respective rights of the parties to the suit properly. The finding of the Civil Judge on this issue was that Smt. Daryao Kunwar was entitled to the properties claimed hy the appellant's father in his suit No. 37 of\n\n1950. The Civil Judge therefore dismissed that suit. Further in view of the finding on the question of title in suit No. 37 of 1950, . suit No. 91 of 1950 wns decreed in favour of the respondent. Further suit No. 42 by the appellant's father was on the same finding decreed to the extent of half only; suit No. 77 of 1950 was decreed also to the extent of half and a permanent injunction was granted\n\n.. _\n\nI >\n\nA in favour of the respondent Smt. Daryao Kunwar as prayed by her in that suit.\n\nThe appellant's father was aggrieved by these decrees.\n\nConsequently he filed two first appeals in the High Court. Appeal No. 365 of 1951 was against the dismissal of suit No. 37 while appeal No. 366 of 1951 was against the dismissal of suit No. 42. The appellant's father also filed two appeals in the court of the District Judge against the judgments and decrees in the suit filed by the respondent, Smt. Daryao Kunwar. Appeal No. 452 of 1951 was against the decree in suit No. 77 while appeal No. 453 of 1951 was against the decree in suit No. 91. By an order of the High Court, the two appeals pending in the court of the District Judge were transferred to the High Court. Thereafter appeal No. 453 of 1951 arising out of suit No. 91 was dismissed by the High Court on October 9, 1953 as being time-barred while appeal No. 452 of 1951 arising out of suit No. 77 was dismissed by the High Court on October 7, 1955 on the ground of failure of the appellant's father to apply for translation and printing of the record as required by the rules of the High Court.\n\nIt may be mentioned that appeals Nos. 452 and 453 were given different numbers on transfer to the High Court; but it is unnecessary to refer to those number for present purposes.\n\nAfter appeals Nos. 452 and 453 had been dismissed, an application was made on behalf of the respondent, Smt. Daryao Kun war, praying that first appeals Nos. 365 and 366 of 1951 be dismissed, as the main question involved therein, namely, title of Smt. Daryao Kunwar to the suit property, had become final on account of the dismissal of the appeals arising out of suits Nos. 77 and 91of1950.\n\nWhen this question came up for hearing before a learned Single Judge, the following question, namely-\"whether the appeal is barred by section 11 of the Code of Civil Procedure or by the general principles of res judicata as the appeals against the decisions in suits Nos. 77 and 91 of 1951 were rejected and dismissed by this Court and those decisions have become final and binding between the parties\" was referred to a Full Bench for decision in view of some conflict between two Division Benches of that court.\n\nThe Full Bench came to the conclusion that two matters were directly and substantially in issue in all the four suits, namely-\n\n(i) whether Harnam Singh and his adopted son Ram Kishan died in a state of jointness with the appellant and his father, and (ii) whether the property in suit was joint family property of Ram Kishan and the appellant's father. The decision of the Civil Judge on both these issues was against the appellant and his father and in favour of Smt. Daryao Kunwar. The Full Bench held that though there were four appeals originally before the High Court, two of them had been dismissed and the very same issues which arose in\n\nfirst oppeals Nos. 365 and 366 had also arisen in those two appeals which had been dismissed. The Full Bench found further that the terms of s. 11 of the Code of Civil Procedure were fully appliCTJble and therefore the two first appeals Nos. 365 and 366 were barred by res j11dicata to the extent of the decision of the five issues which were common in four connected appeals.\n\nIn the result the Full Bench returned that answer to the question referred to it.\n\nAfter this decision of the Full Bench, the matter went back to the learned Single Judge for decision, who thereupon dismissed the appeals as barred by s. 11 of the Code of Civil Procedure. The appellant then obtained special leave from this court; and that is how the matter has come up before us.\n\nWe may at the out set refer to the relevant provisions of s. 11 of the Code of Civil Procedure insofar as they are material for present purposes. They read thus :\n\n\"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.\n\n\"Explanation I-The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.\n\nlt is not necessary to refer to the other Explanations.\n\nA plain reading of s. 11 shows that to constitute a matter res j11dicata, the following conditions must be satisfied, namely-\n\n(i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and .substantially in issue in the former suit;\n\n(ii) The former suit must have been a suit between the same parties or between. parties under whom they or any of them claim;\n\n(iii) The parties must have litigated under the same title in the former suit;\n\n(fr) The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and\n\n(v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided\n\n. . ' '\n\n• '\n\n...\n\nI •\n\n' B\n\n, >(\n\n) c\n\n. ..l\n\nSHEODAN SINGH v. DARYAO (Warlchoo, I.) 305\n\nby the Court in the first suit. Further Explanation I shows that it is not the date on which the suit is filed that matters but the date on which the suit is decided, so that even if a suit was filed later, it will be a former suit if it has been decided earlier. In order therefore that the decision in the earlier two appeals dismissed by the High Court operates as res judicata it will have to be seen whether all the five conditions mentioned above have been satisfied.\n\nFour contentions have been urged on behalf of the appellant in this connection. They are-\n\n(i) that title to property was not directly and substantially in issue in suits Nos. 77 and 91;\n\n(ii) that the court of the Munsif could not try the title suit No. 37 of 1950;\n\n(iii) that it cannot be said that appeals arising out of suits Nos. 77 and 91 were former suits and as such the decision therein would be res judicata;\n\n(iv) that it cannot be said that the two appeals from suits Nos. 77 and 91 which were dismissed by the High Court, one on the ground of limitation and the other on the ground of not printing the records, were heard and finally decided.\n\nSo it is contended that the conditions necessary for res judicata to arise under s. 11 have not been satisfied and the High Court was in error in holding that its dismissal of the two appeals arising from suits Nos. 77 and 91 amounted to res judicata so far as appeals Nos. 365 and 366 were concerned.\n\nRe. (i).\n\nThe judgment of the Additional Civil Judge shows that there were five issues common to all the four suits, and the main point raised in these common issues was whether Harnam Singh and his adopted son Ram Kishan were joint with the appellant ahd his father and whether Ram Kishan died in a state of jointness with them. This main question was decided against the appellant and his father and it was held by the Additional Civil Judge that Harnam Singh and Ram Kishan were separate from the appellant and his father and that Ram Kishan did not die in a state of jointness with them. On this view of the matter, the Additional Civil Judge held that the respondent, Smt. Daryao Kunwar, succeeded to Ram Kishan on his death and was entitled to the separated share of Ram Kishan and the appellant and his father had no right to the property by survivorship. In the face of the judgment of the Additional Civil Judge which shows that there were five common issues in all the four suits, the appellant cannot be heard to say that these\n\nissues were not directly and substantially in issue in suits Nos. 77 and 91 also.\n\nFurther this contention was not raised in the High Court and the appellant cannot be permitted to raise it for the first\n\nime in this .court. Besides the question whether these common issues were directly and substantially in issue in suits Nos. 77 and 91 can only be decided af!er a perual of the pleadings of the parties.\n\nIn the pai:cr book as ongmally printed, the appellant did not include the plea.din~ at all. L1ter he filed copies of the plaints only with an apphcatwn .. Ev.en now we have not got copies of written-state ments and rephcal!ons, if any, of suits Nos. 77 and 91. In the\n\ncirc~tanccs. 'Ye must accept from the fact that the judgment of the Additwnal Civil Judge shows that these five issues were raised !n uits N.os. 77 and ~I, that they were directly and substantially m issue m those smts also and did arise out of the pleadings\n\nof the parties. We therefore reject the contention that issues as to title were not directly and substantially in issue in suits Nos. 77 and 91.\n\nRt. (ii).\n\nThere is no substance in the contention that the Munsif before whom suits Nos. 77 and 91 were filed could not try the title suit No. 37 and therefore, there can be no question of res judicata, as the title suit No. 37, assuming it to be a subsequent suit, could not be tried by the Munsif's court which tried the former suit. It is true that suits Nos. 77 and 91 were filed in the Munsif's court; but they were transferred to the court of the Additional Civil Judge and in actual fact were tried by the Additional Civil Judge. It is the court which decides the former suit whose jurisdiction to try the subsequent suit has to be considered and not the court in which the former &uit may have been filed.\n\nTherefore, though suits Nos. 77 and 91 may have been filed in the Munsif's court, they were transferred to the court of the Additional Civil Judge and were decided by him.\n\nThere is no dispute that the court which decided the former suits, namely suits Nos. 77 and 91 (assuming them to be former suits) had jurisdiction to try the title suit No. 37. The contention that the Munsif before whom suits Nos. 77 and 91 were filed, could not try the subsequent suit No. 37 has therefore no force in the circumstances of the present litigation.\n\nRe. (iii).\n\nThen it is urged that all the four suits were consolidated and decided on the same day by the same judgment and there can therefore be no question that suits Nos. 77 and 91 were former suits and thi:s the decision as to title in those suits became res judicata. It is not in dispute that the High Court's decision in t.he ai:ipcals aris!ng from suits Nos. 77 and 91 was earlier.\n\nReliance m this connection is placed on the decision of this Court in Nahari v. Shankar (1).\n\nI. [1950] S.C.R. 754.\n\n.;- . '\n\n' 8\n\n' ?\n\nc '\n\nI....\n\nF . '\n\n-1,\n\n1 ~\n\n, .,\n\nThat case howe:ver has no application to the facts of the present case because there the suit was only one which was followed by two apals. The appeals were heard together and disposed of by the same judgment though separate decrees were prepred. An appel was taken against one of the decrees.\n\nIn those cucumstances this Court held that as there was only one suit, it was not necessary to file two separate appeals and the fact that one of the appeals was time-barred did hot affect the maintainability of the other appeal and the question of res judicata did not at all arise. In the present case there were different suits from which different appeals had to be filed. The High Court's decision in the two appeals arising from suits Nos. 77 and 91 was undoubtedly earlier and therefore the condition that there should have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in the present case. The contention that there was no former suit in the present case must therefore fail.\n\nRe. (iv).\n\nThis brings us to the main point that has been urged in these appeals, namely, that the High Court had not heard and finally decided the appeals arising out of suits Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. It is therefore urged that the two appeals arising out of suits Nos. 77 and 91 had not been heard and finally decided by the High Court, and so the condition that the former suit must have been heard and finally decided was not satisfied in the present case. Reliance in this connection is placed on the well-settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dimissal is confirmed in appeal (if any), the decision not\n\nH. being on the merits would not be res judicata in a subsequent suit.\n\nBut none of these considerations apply in the present case, for the Additional Civil Judge decided all the four suits on the merits and decided the issue as to title on merits against the appellant and his father.\n\nIt is true that the High Court dismissed the appeals arising\n\n308 SUPllEUB COUllT R.EPOll.TS [1966] 3 s.c.a.\n\nout of suits Nos. 77 and 91 either on the ground that it was barred by limitation or on the ground that steps had not been taken for printing the records. Even so the fact remains that the result of the dismissal of the two appeals arising from suits Nos. 77 and 91 by the High Court on these grounds was that the decrees of the Additional Civil Judge who decided the issue as to title on merits stood confirmed by the order of the High Court. In such a case, even though the order of the High Court may it•elf not be on the merit the result of the High Court's decision is to confirm the decision on the issue of title which had been given on themcritshytheAdditional Civil Judge and thus in effect the High Court confirmed the decree of the trial court on the merits, whatever may he the reason for the dismissal of the appeals arising from suits Nos. 77 and 91. In these circumstances though the order of the High Court itself may not be on the merits, the decision of the High Court dismissing the appeals arising out of suits Nos. 77 and 91 was to uphold the decision on the merits as to issue of title and therefore it must be held that by dismissing the appeals arising out of suits Nos. 77 and 91 the High Court heard and finally decided the matter for it confirmed the judgment of the trial court on the issue of title arising between the parties and the decision of the trial court being on the merits the High Court's decision confirming that decision must also be deemed to be on the merits. To hold otherwise would make res judicala impossible in cases where the trial court decides the matter on merits but the appeal court dismisses the appeal on some preliminary ground thus confirming the decision of the trial court on the merits. It is well-settled that where a decree on the merits is appealed from, the decision of the trial court loses its character of finality and what was once res judicala again becomes res sub judice and it is the decree of the appeal court which will then be res judicala. But if the contention of the appellant were to be accepted and it is held that if the appeal court dismisses the appeal on any preliminary ground, like limitation or default in printing, thus confirming in 1010 the trial court's decision given on merits, the appeal court's decree cannot be re.rjudicata, the result wouldbethateven though the deciiion of the trial court given on the merits is confirmed by the dismissal of the appeal on a preliminary ground there can never he res judicata. We cannot therefore accc:pt the contention that evn\n\nthough the trial court may have decided the matter on the ments there can be no res judicala if the appeal court dismisses the appeal on a preliminary ground without going into the merits, even though the result of the dismissal of the appeal by the appeal court 1s confirmation of the decision of the trial court given on the merits.\n\nAceeptance of such a proposition will mean that all that the losing party has to do to destroy the effect of a decision given by te tial court on the merits is to file an appeal and let that appeal be d1sm1sslld on some preliminary ground, with' the result that the ecision\n\ngiven on the merits also becomes useless as between the parties. We\n\n.,.. . ' ,\n\n• .,\n\n'\\.\n\n• ,.\n\nSHEODAN SINGH v. DARYAO (Wartchoo, /.) 309\n\nA are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may B be the ground for dismissal of the appeal.\n\nIt now remains to refer to certain decisions which were cited at the bar in this connection. The first decision on which reliance is placed on behalf of the appellant is Sheosagar Singh v. Sitaram.(1) In that case there was a suit for a declaration that the defendant was not the son of a particular person. It appeared that in a former suit between the same parties, the issue so raised had been decided against the plaintiffs by the trial court. In appeal the only thing finally decided was that in a suit constituted as the former suit was, no decision ought to have been pronounced on the merits. In those circumstances the Privy Council held that the issue had not been heard and finally decided in the former suit. These facts would show that that case has no application to the present case. In that case the finality of the judgment of the trial court in the former suit had been destroyed by the appeal taken therefrom and the appeal court decided that no decision ought to have been pronounced on the merits in the former suit constituted as it was. It was in those circumstances that the Privy Council held that the issue had not been heard and finally decided in the former suit. The facts in that case therefore were very different from the facts in the present case, for the very decision of the appeal court showed that nothing had been decided in that case and the decree of the trial court on the merits was not confirmed. In the case before us though the decision of the High Court was on a preliminary point the decision, on the merits, of the trial court was confirmed and that makes the decision of the High Court res judicata.\n\nThe next case to which reference has been made is Ashgar Ali Khan v. Ganesh Das.(2) In that case the appellant in pursuance of a deed of dissolution of partnership, executed a bond for the payment of some money to the respondent. He sued to set aside the bond on the ground of fraudulent misrepresentation as to the amount due. The trial court and on appeal the District Judge held that the alleged fraud was not established, and dismissed the suit. Upon a further appeal to the Judicial Commissioner it was held without entering into the merits, that the appellant could not avoid the bond as he did not claim to avoid the deed. The final court of appeal th us refused to determine the issue of fraud and dismissed the suit on another ground. In a subsequent suit by the respondent upon the bond, the appellant raised as a defence the same case of\n\n(I) L.R. (1896) 24 I. A. SO.\n\n(2) L.R. (1917) 44 I.A. 213.\n\nfraud. It was held that the issue raised by the defence was not res judicata since the matter had not been finally decided by the final court of appeal. That case also has no application to the facts of the present case, for in that case the final court of appeal did not decide the question of fraud and dismissed the suit on another ground.\n\nIn such a case it is well-settled that there can be no res judicata where the final appeal court confirms the decision of the courts below on a different ground or on one out of several grounds and docs not decide the other ground. The reason for this is that it is the decision of the final court which is res judicata and if the final court does not decide an issue it cannot be said that that issue has been heard and finally decided. In the present case, however, the result of the decision of the High Court in dismissing the appeals arising from suits Nos. 77 and 91 is to confirm the judgment of the trial court on all the issues which were common and thus it must be held that the High Court's decision does amount to the appeals being heard and finally decided.\n\nThen strong reliance has been placed on behalf of the appellant on Shankar Sahai v. Bhagwat Sahai(1). In that case it was held that where two suits between the same parties involving common issues were disposed of by one judgment but two decrees, and an appeal was preferred against the decree in one but it wa~ either not preferred in the other or was rejected as incompetent, the matter decided by the latter decree did not become res judicata and it could be reopened in appeal against the former. This case certainly supports the view urged on behalf of the appellant. This case also over-ruled an earlier view of the Oudh Chief Court in Bhagauti Din\n\nv. Bhagwat(Z). The reason given for the main proposition in this decision is that the court must look at the substance of the matter and not be guided by technical considerations. In view of what we have said above, we cannot agree with the view taken in that cai.e, and must hold that it was wrongly decided insofar as it holds that even where the appeal from one decree is dismissed, there will be no res judicata.\n\nThe next case to which reference may be made is Obedur Rahman v. Darbari Lal('). In that case there were five appeals before the High Court, three of which had abated. There was a common issue in all the five appeals, namely, whether a certain lease had expired or not and it was urged that in view of the abatement of the three other appeals, the decision of that issue had become res judicata. The contention was over-ruled by the observation that\n\n\"where there has been an appeal, the matter is no longer res judicata but res sub judice and where an appeal is not finally heard and decided any matters therein cannot possibly be said to be res judicata\".\n\nThis view in our opinion is incorrect. We may in this connection\n\n(I) A.J.R. t946 Oudh 33.\n\n(2) A.1.R. 1933 Oudh 531.\n\n(3) A.1.R. 19Z7 Lah. I.\n\n• t •\n\n- ' •\n\n~.·:1 • .. - b\n\n. '\n\n_.,\n\n1 • •\n\n-. •\n\n' . )\n\n.. '\n\nSHEODAN SINGH v. DAllYAO (Wanchoo, J.) 311\n\nrefer to Syed Ahmad Ali Khan Alaii v. Hinga Lal(1) where it was held that where the appeal was struck off as having abated, the decision would operate as res judicata. If the view taken by the Lahore High Court is correct, the result would be that there may be inconsistent decisions on the same issue with respect to the point involved in that case, namely, whether a certain lease had expired or not and the very object of res judicata is to avoid inconsistent decision. Where therefore the result of the dismissal or abatement of an appeal is to confirm the decision of the trial court on the merits such dismissal must amount to the appeal being heard and finally decided and would operate as res judicata.\n\nThe next case to which reference has been made is Ghansham Singh v. Bhola Singh(2). In that case there was a suit for sale on a mortgage and the trial court gave a decree in favour of the plaintiff but awarded no costs. The plaintiff appealed against the decree insofar as it disallowed costs. The defendant also appealed as to the amount of interest allowed to the plaintiff. Both the appeals were heard together and decided by one judgment, and both the appeals were allowed. The plaintiff appealed to the High Court against the decree in the defendant's appeal below but did not appeal against the decree which was in his favour with respect to costs. It was held that the fact that the plaintiff had not appealed against the decision in his appeal was no bar to the hearing of the appeal against the decree passed in the defendant's appeal below. We do not see how this case can help the appellant. The matters in the two appeals were different, one relating to costs and the other relating to interest; the rest of the judgment of the trial court was not disputed and had become final. In such a case there was no question of the plaintiff appealing from a decision in his own favour as to costs and there could be no question of the decision as to costs being res judicata in the matter of interest. The facts of that case were therefore entirely different and do not help the appellant. It may also be added that that was a case of one suit from which two appeals had arisen and not of two suits.\n\nThe next case to which reference has been made is Manohar Vinayak v. Laxman Anandrao('). In that case two suits were consolidated by consent of the parties and there were certain common issues. Appeal was taken from the decision in one suit and not from the decision in the other, and it was urged in the High Court that the decision in the other suit had become final. The High Court applied the principle that res judicata could not apply in the same proceeding in which the decision was given and added that by a parity of reasoning it could not apply to suits which were consolidated. We may indicate that a contrary view has been taken in\n\n(I) l.L.R. (1946) 21 Luck. 586.\n\n(2) I.L.R. (1923) 45 All. 506.\n\nl 0 Sup CI/66-7\n\n(3) A.l.R. 1947 Naa. 248.\n\nMrs. Gertrude Oates v. Mrs. Millicent D'Silva(') and Zaharia v.\n\nDtbia.(2) We need not consider the correctness of these rival views as they raise the question as to whether one decision or the other can be said to be former where the two suits were decided by the same judgment on the same date. This question does not fall to be decided before us and we do not propose to express any opinion thereon.\n\nBut the Nagpur decision is of no help to the appellant, for in the present case res judicata arises because of earlier decision of the High Court in appeals arising from suits Nos. 77 and 91.\n\nPanchanada Ve/an v. Vaithlnatha Sastria/(3) and Mst. Lachhmi v.\n\nBhulli(•) are similar to the Nagpur case and we need express no opinion as to their correctness.\n\nThe next case to which reference has been made is Khetramohan Baral v. Rasananda Misra(S). In thatcase six suits were heard together mainly because an important common issue was involved even though the parties were not the same and the properties in dispute were also different. The decision in one of the suits was not challenged in appeal while appeals were taken from other suits. The High Court held that in such circumstances the decision in one suit from D which no appeal was taken would not be res judicata in other suits from which appeals were taken. In these cases the parties and properties were different and we do not think it necessary to express any opinion about the correctness of this decision. The facts in the present case are clearly different for the parties are the same and the title to the properties in dispute also depended upon one common E question relating to jointness or separation.\n\nA consideration of the cases cited on behalf of the appellant therefore shows that most of them are not exactly in point so far as the facts of the present case are concerned. Our conclusion on the question of res judicata raised in the present appeals is this. (Where the trial court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the trial court given on merits, aRd if that is so, the decision of the appeal court will be res judicata whatever may be the reason for the dismissal. It would be a different matter, however, where the decision of the appeal court does not result in the confirmation of the decision of the trial court\n\n(I) A.I.R. 1933 Pat. 78.\n\n(2) l.L.R. (1911) 33 AU. 51.\n\n(3) 1.L.R. (1906) 29 Mad. 333.\n\n(4) I.L.R. [1927] Lah. 384.\n\n(5) A.l.R. 1962 Orissa 141.\n\n• t '\n\n• -\n\n• •\n\n\" .\n\n) c\n\n. \\\n\ngiven on the merits, as for example, where the appeal court holds that the trial court had no jurisdiction and dismisses the appeal even though the trial court might have dismissed the suit on the merits.) In this view of the matter, the appeals must fail, for the trial court had in the present case decided all the four suits on the merits including the decision on the common issues as to title. The reault of the dismissal on a preliminary ground of the two appeals arising out of suits Nos. 77 and.91 was that the decision of the trial court was confirmed with respect to the common issues as to title by the High Court. In consequence the decision on those issues became res judicata so far as appeals Nos. 365 and 366 are concerned and s. 11 of the Code of Civil Procedure would bar the hearing of those common issues over again. It is not in dispute that if the decision on the common issues in suits Nos. 77 and 91 has become res judicata, appeals Nos. 365 and 366 must fail.\n\nWe therefore dismiss the appeals with costs, one set of hearing fee.\n\nAppeals dimissed .", "total_entities": 36, "entities": [{"text": "SHEODAN SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "SHEODAN SINGH", "offset_not_found": false}}, {"text": "DARYAO KUNWAR", "label": "RESPONDENT", "start_char": 25, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "DARYAO KUNWAR", "offset_not_found": false}}, {"text": "January 14, 1966", "label": "DATE", "start_char": 40, "end_char": 56, "source": "ner", "metadata": {"in_sentence": "DARYAO KUNWAR\n\nJanuary 14, 1966\n\n[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO, Y. RA~SWAMI\n\nAND P. SATYANARAYANA RAJU, JJ.)"}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 59, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 88, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "P. SATYANARAYANA RAJU, JJ.", "label": "JUDGE", "start_char": 120, "end_char": 146, "source": "metadata", "metadata": {"canonical_name": "P. SATYANARAYANA RAJU", "offset_not_found": false}}, {"text": "Code of civil Procedure", "label": "STATUTE", "start_char": 149, "end_char": 172, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "OVIL APPELLATE", "label": "PETITIONER", "start_char": 4571, "end_char": 4585, "source": "ner", "metadata": {"in_sentence": "OVIL APPELLATE JurusDICTJON : Civil Appeal Nos."}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 4791, "end_char": 4804, "source": "ner", "metadata": {"in_sentence": "M. V. Goswami and B. C. Misra, for the appellant."}}, {"text": "B. C. Misra", "label": "LAWYER", "start_char": 4809, "end_char": 4820, "source": "ner", "metadata": {"in_sentence": "M. V. Goswami and B. C. Misra, for the appellant."}}, {"text": "Prayag Das", "label": "LAWYER", "start_char": 4842, "end_char": 4852, "source": "ner", "metadata": {"in_sentence": "Prayag Das and /. P. Goyal, for the respondent."}}, {"text": "P. Goyal", "label": "LAWYER", "start_char": 4860, "end_char": 4868, "source": "ner", "metadata": {"in_sentence": "Prayag Das and /. P. Goyal, for the respondent."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 4935, "end_char": 4942, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nWanchoo."}}, {"text": "Daryao Kunwar", "label": "RESPONDENT", "start_char": 5220, "end_char": 5233, "source": "ner", "metadata": {"in_sentence": "Daryao Kunwar, for a declaration that he was the owner of the properties in suit and for possession in the alternative.", "canonical_name": "DARYAO KUNWAR"}}, {"text": "Harnam Singh", "label": "OTHER_PERSON", "start_char": 5516, "end_char": 5528, "source": "ner", "metadata": {"in_sentence": "The case put forward in the plaint was that Harnam Singh was the uncle of the appellant's father."}}, {"text": "Ram Kishan", "label": "OTHER_PERSON", "start_char": 5571, "end_char": 5581, "source": "ner", "metadata": {"in_sentence": "Ram Kishan was the adopted son of Harnam Singh, and the respondent is his widow.", "canonical_name": "Ram Kishan"}}, {"text": "Rm Kishan", "label": "OTHER_PERSON", "start_char": 6831, "end_char": 6840, "source": "ner", "metadata": {"in_sentence": "After the death of Rm Kishan, the respondent inherited his entire property as his widow.", "canonical_name": "Ram Kishan"}}, {"text": "Daryao Kunwar", "label": "RESPONDENT", "start_char": 8666, "end_char": 8679, "source": "ner", "metadata": {"in_sentence": "Daryao Kunwar was entitled to the properties claimed hy the appellant's father in his suit No.", "canonical_name": "DARYAO KUNWAR"}}, {"text": "October 9, 1953", "label": "DATE", "start_char": 10034, "end_char": 10049, "source": "ner", "metadata": {"in_sentence": "91 was dismissed by the High Court on October 9, 1953 as being time-barred while appeal No."}}, {"text": "October 7, 1955", "label": "DATE", "start_char": 10162, "end_char": 10177, "source": "ner", "metadata": {"in_sentence": "77 was dismissed by the High Court on October 7, 1955 on the ground of failure of the appellant's father to apply for translation and printing of the record as required by the rules of the High Court."}}, {"text": "Daryao Kun", "label": "RESPONDENT", "start_char": 10615, "end_char": 10625, "source": "ner", "metadata": {"in_sentence": "Daryao Kun war, praying that first appeals Nos.", "canonical_name": "DARYAO KUNWAR"}}, {"text": "section 11", "label": "PROVISION", "start_char": 11032, "end_char": 11042, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 11046, "end_char": 11073, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 11", "label": "PROVISION", "start_char": 12201, "end_char": 12206, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 12210, "end_char": 12237, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 11", "label": "PROVISION", "start_char": 12672, "end_char": 12677, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 12681, "end_char": 12708, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 11", "label": "PROVISION", "start_char": 12878, "end_char": 12883, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 12887, "end_char": 12914, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 11", "label": "PROVISION", "start_char": 13664, "end_char": 13669, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 15734, "end_char": 15739, "source": "regex", "metadata": {"statute": null}}, {"text": "Oudh Chief Court", "label": "COURT", "start_char": 31076, "end_char": 31092, "source": "ner", "metadata": {"in_sentence": "This case also over-ruled an earlier view of the Oudh Chief Court in Bhagauti Din\n\nv. Bhagwat(Z)."}}, {"text": "Lahore High Court", "label": "COURT", "start_char": 32634, "end_char": 32651, "source": "ner", "metadata": {"in_sentence": "If the view taken by the Lahore High Court is correct, the result would be that there may be inconsistent decisions on the same issue with respect to the point involved in that case, namely, whether a certain lease had expired or not and the very object of res judicata is to avoid inconsistent decision."}}, {"text": "Nagpur", "label": "GPE", "start_char": 35824, "end_char": 35830, "source": "ner", "metadata": {"in_sentence": "But the Nagpur decision is of no help to the appellant, for in the present case res judicata arises because of earlier decision of the High Court in appeals arising from suits Nos."}}, {"text": "s. 11", "label": "PROVISION", "start_char": 39084, "end_char": 39089, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 39093, "end_char": 39120, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1966_3_314_320_EN", "year": 1966, "text": "GODAWARI S. PARULEKAR AND ORS.\n\nv. .-\n\nSTATE OF MAHARASHTRA\n\nJanuary 17, 1966\n\n[P.B. GAJENDRAGADKAR, C.J., J.C. SHAH, S.M. SIKRI,\n\nV. RAMASWAMI AND P. SATAYANARAYANA RAJU, JJ]\n\nDefence of India Rules, 1962, r. 30---Stare Government whether can ezerclse authority to order detention delegated by It to Disrrlct Magistrat~ D1tmtion order passed during pend1ncy o/ habeas corpus proceedings\n\nwhether vitiated by malice In law.\n\nThe appellant was detained from November 1962 onwards under various detention orders. She was released on February 4, 1964 but as soon\n\nu she came out of the prison gates, she was served with a fresh order of detention dated February 3, 1963 issued by the State Oavernmcnt under r. 30 of the Defence of India Rules, 1962.\n\nShe was detained with a view to prevent her from acting in a manner prejudicial to the defence\n\nof India, the public safety and maintenance of public order.\n\nA petition filed by the appellant under Art. 226 of the Constitution against her detention under the said order was dismissed by the High Coun. The D appellant came to this Court by special leave.\n\nIt was contended on behalf Of the appellant : (I) The State Govmunent having delegated its powers under r. 30 to District Magistrate by a notification dated 9th November 1962, it was not competent to pass an order of detention under r. 30.\n\n(2) The order of detention was bad because two ministers cannot legally jomtly pass an order of detention. (3) The Order of detention was vitiated by malice in law. (4) The High Coun E should have insisted on an affidavit from the Ministers.\n\n(5) There was no material to show that there was an apprehension that maintenance of public order would be prejudicially affected.\n\nHELD : There was no infirmity in the order under which the petitioner was detained.\n\n(i) By delegating its power under r. 30 to District Magistrates the State Government was not itself denuded of the power to act under r. 30. (317 HJ Huth v. Clarke, 25 Q.B.D. 391, relied on.\n\nKing Emperor v. Slhnat/1 Banerje, 72 I.A, 241, distinguished and explained.\n\n(ii) There is no difficulty in two Ministers successively being satisfied\n\nthat it is necessary to detain a person for different reasons and then their G decision being carried out by one order of detention duly authenticated.\n\n(318 DJ >·• Godavarl Sarnrao Parulekar v. State of Maharashtra, (1964) 6 S.C.R. 446, referred to.\n\n...\n\n(iii) The mere fact that the detention order is passed during the \\. pendency of habeas copus. l'roceedings c.annt by itself lead to the con clusion that the order is v1llated by mahce m law. If the Government H considers an order of detention, which is the subject-matter of challenge, to be invalid, there is no reason why it should not pass a valid order. (319 BDl\n\nA Naranjan Singh Nathawan \"· State of Punja/J, [19521 S.C.R. 395, relied on . .-..\n\n(iv) Whether an affidavit by the Ministers concerned waa necessary or not was for the High Court to consider. t •\n\n(v) The Court could not go into to the question whether the material before the detaining authority was sufficient or not.\n\n...\n\nB CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.\n\n142-149. and 225-227 of 1964.\n\nAppeals from the judgment and orders dated April 13, 1964 of the Bombay High Court in Criminal Applications Nos. 180-182,. 189, 190, 191, 193 and 194 and 195 to 197of1964 respectively.\n\nR. K. Garg, for appellant (in Cr. A. No. 142/1964).\n\nThe appellants appeared in person.\n\nN. S. Bindra and B. R. G. K. Achar, for the respondents . .\n\nSikrl, J. These appeals by certificate granted by the Bombay High Court are directed against its judgment dated April 13, 1964 in applications filed by the applicants under art. 226 of the Constitution, and s. 491 of the Criminal Procedure Code. Criminal Appeal No. 143 of 1964 has become infructuous because the appellant, S. V. Parulekar, has died.\n\nMr. R. K. Garg appears on behalf of the appellanUn Criminal Appeal No. 142 of 1964. It is common ground that the points arising in all the appeals are common, and in order to appreciate the points, it would be sufficient if the facts in Criminal Appeal No. 142 of 1964, relevant to the arguments addressed to us, are only given. The relevant facts given in paragraphs 2 and 3 of the affidavit filed by the Under Secretary to the Government a of Maharashtra are as follows:\n\n':Di \"2. With reference to paragraph 1 of the said Petition I say that the petitioner was detained under order dated the 7th November 1962 issued by the District Magistrate, Thana, under the Preventive Detention Act 1950. On 10th November, 1962, the Government of Maharashtra revoked the order of detention dated the 7th November 1962 issued by the District Magistrate, Thana, and the revocation order was served on the petitioner on the 11th November 1962. Thereafter the petitioner was served with another order of detention dated the 10th November 1962 issued by the Government of Maharashtra under Rule 30 of the Defence of India Rules, 1962. Further by its order dated the 25th September 1963, the Government of Maharashtra cancelled the said order of detention dated the 10th November 1962 and in pursuance of the said cancellation order the petitioner was released from detention on 27th September 1963. After she actually came out of the Yeravda Central Prison gates and was a free woman, the fresh orders of detention and committal dated the 25th September 1963 issued by the Government of Maharashtra were served on her and she was again detained in the Y eravda Central Prison, Yeravda Poona. Thereafter, by its order dated the 3rd February, 1964, the Government of Maharashtra cancelled its order of detention dated the 25th September 1963 and the petitioner was again released on the 4th February 1964. After she actually came out of the Arthur Road District Prison gates and was a free woman, she was served with a fresh order of detention dated the 3rd February 1964 issued by the Government of Maharashtra under rule 30 of the Defence of India Rules 1962 and redetained with a view to prevent her from acting in a manner prejudicial to the defence of India, the public safety and maintenance of public order. The last two orders of cancellation and detention dated the 3rd February 1964 are attached to the said petition as Annexures A and B, respectively.\n\n3. With reference to paragraph 2 of the said petition I say that what is stated therein is generally correct. I further say that the petitioner is a Communist belonging to the Ranadive Group, which maintains that China has not committed any aggression on India and which actively propagates that view.\"\n\nThe High Court of Bombay held that the detention of the appellant from May 1963 to February 1964 was illegal but the order of detention passed on February 3, 1964 was legal, and accordingly the appellant could not be ordered to be released. It is this order of February 3, 1964, which is now the subject matter of F challenge.\n\nMr. Garg for the appellant raised the following points before us:\n\n(I) That the State Government having delegated its powers conferred upon it under r. 30 of the Defence of India Rules, 1962, by Notification \"Home Department (Special) No. S.B. III/DOR.1162-1, dated the 9th November, 1962\" G to all District Magistrates within the limit~ of their jurisdiction subject to the conditions mentioned in the Notification, the State Government was not competent to pass an order of detention under r. 30.\n\n(2) That the order of detention is bad because two Ministers cannot legally jointly pass an order of detention.\n\n(3) That the order of detention is vitiated by malice in law.\n\n. }\n\nl •\n\n( 4) That on the facts of this case the High Court should have insisted on an affidavit being filed by the Ministers.\n\n(5) That there was no material to show that there was any apprehension that maintenance of public order would be prejudicially affected.\n\nRelying on King Emperor v. Sibnath Banerje(') Mr. Garg argues that the State Government had divested itself of its powers to detain. The Privy Council observed at p. 265 as follows:\n\n\"It is for the same reasons that their Lordships are unable to accept the respondents' contention, also agreed to by the majority judges in the Federal Court, that the provision of sub-s. 5 of s. 2 of the Defence of India Act, provides the only means by which the Governor can relieve himself of a strictly personal function. Their Lordships would also add on this contention that sub-s. 5 of s. 2 provides a means of delegation in the strict sense of the word, namely, a transfer of the power or duty to the officer or authority defined in the sub-section, with a corresponding divestiture of the Governor of any responsibility in the matter, whereas under r. 49, sub-s.1, of the Act of 1935 the Governor remains responsible for the action of his subordinates taken in his name.\"\n\nWe are unable to agree with Mr. Garg that the Privy Council laid down that the Governor was divested of its power of passing an order when the above notification was issued. It seems to us that the Privy Council was thinking of and comparing the responsibility of the Governor for the orders passed by the delegate and by an officer acting under s. 49(1) of the Act of 1935. In the case of the delegate the Privy Council held that the Governor was not responsible, but that does not mean that the Governor could not have acted under r. 26 of the Defence of India Rules made under the Defence of India Act, 1939.\n\nIn Huth v. C/arke(2) Wills, J., observed at p. 395:\n\n\"Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself.\"\n\nIn our opinion, by issuing the aforesaid notification the State Government has not denuded itself of the power to act under r. 30.\n\nComing to the second point, namely, whether the two ministers can jointly pass an order of detention, it is necessary to give a\n\n(1) 721.A. 241.\n\n(2) 25 Q.B.D. 391.\n\nfew relevant facts.\n\nIn Godavari Shamrao Parulekar v. Stale of Maharashlra(I) this Court observed:\n\n\"The order, therefore, in the present case could only . be made by a Minister who was in-charge both of subjects allotted to the General Administration Department and subjects allotted to the Home Department (Special).\"\n\nBasing on this passage, Mr. Garg contends that it is only if a Minister is in charge of both the subjects that an order of detention can be passed. He further elaborates his point by saying that once one Minister is satisfied that it is necessary to detain a person under one head, say for the maintenance of public order, there is no question of another satisfaction by another Minister that it is necessary to detain that very person, say for the reason of preventing him from acting in a manner prejudicial to the defence of India.\n\nHe says that as soon as the first Minister is satisfied that it is necessary to detain a person for reasons of maintenance of public order, no power remains to consider other reasons. We are unable to accept the above line of reasoning. We do not see any difficulty in two Ministers successively being satisfied that it is necessary to detain a person for different reasons, and then their decision being carried out by one order of detention duly authenticated. We agree with the High Court that this Court did not mean to lay down an absolute proposition of law that unless all the relevant subjects in respect of which the orders of detention arc passed are concentrated in the hands of one Minister, valid orders of detention cannot be passed.\n\nRegarding the next point, namely, whether the order of detention is vitiated by malice in law, Mr. Garg urges that no order of detention can be passed to defeat habeas corpus proceeding. We\n\nare unable to agree with the proposition submitted by the learned counsel. The Court observed in Naranjan Singh Nathawan v.\n\nF 11ze State of Punjab(2) as follows:\n\n\"Once it is conceded that in habeas corpus proceedings the court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of the institution of the proceeding, it is difficult to hold, in the absence of proof of bad faith, that the detaining authority cannot supersede an earlier order of detention challenged as illegal and make a fresh order wherever possible which is free from defects and duly complies with the requirements of the law in that behalf.\" This Court observed further at p. 400, as follows:\n\n\"If at any time before the court directs the release of the detenu, a valid order directing his detention is pro-\n\n<ll (1904[ 6 S.C.R. 446, alp. 458.\n\n(2) (1952[ S.C.R. 395.\n\n• r\n\n• , .\n\n\\ '\n\n- . • ' '\n\n• L\n\n-- 4\n\nduced, the court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later order the court can direct the release of the petitioner.\"\n\nThe mere fact that the detention order is passed during the pendency of habeas corpus proceedings cannot by itself lead to the conclusion that the order is vitiated by malice in law. It depends on the circumstances of the case. The detenu would have to prove not only that the detention order has been passed during the pendency of habeas corpus proceedings but also that there are other facts showing malice. Mr. Garg has not been able to point out any other facts in this case. If the Government considers an order of detention, which is the subject matter of challenge, to be invalid, there is no reason why it should not pass a valid order. Mr. Garg says that there was no fresh consideration of the facts and the Minis ters acted on pre-conceived notions and passed the new order dated February 3, 1964, without any fresh consideration. We are unable D to accept this argument because it is quite clear from the affidavit filed-by the Under Secretary to the Government of Maharashtra,.\n\nHome Department and General Administration Department, that before the order was passed the Minister of Home and the Chief Minister were satisfied in accordance with the rules of business made under art. 166 of the Constitution.\n\nE We may at this stage deal with the question whether the High\n\nCourt should have insisted on the Ministers filing the affidavit. It is for the High Court to consider in each case whether it is satisfied with the affidavit filed in the case. In this case it does not appear from the judgment of the High Court that this point was raised before the High Court.\n\nThe only point that remains is whether there was any material for detaining the appellant for the maintenance of public order. It has been consistently held by this Court that it is for the detaining authority to be satisfied whether on the material before it, it is necessary to detain a person under r. 30, and that this question is not justiciable. There is no force in this point.\n\nAccordingly we hold that there is no infirmity in the order of detention dated February 3, 1964.\n\nIn Criminal Appeal No. 144of1964, the appellant P.P. Sanzgiri, adopted the arguments of Mr. Garg and further urged that he had been validly detained by order of the District Magistrate dated November 11, 1962, and there had been no proper cancellation of this order. But he says that this order was bad because there was no confirmation of it. As pointed out above, we are not concerned with the previous orders of detention because the appellant is detain.\n\nSUPREMB COURT REPORTS\n\n[1966] 3 S.C.R.\n\ncd now under the order dated February 3, 1964, and we need not A go into the point.\n\nWe may mention that in three appeals, Criminal Appeal No. 215/64, Criminal Appeal No. 226/64 and Criminal Appeal No. 227/64, the orders of detention are dated February 14, 1964, but nothing turns on this difference in the dates of detention.\n\nIn the result the appeals fail and are dismissed.\n\nAppeals dismisstd . .\n\nB -\n\n• •", "total_entities": 45, "entities": [{"text": "GODAWARI S. PARULEKAR AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "GODAWARI S. PARULEKAR AND ORS", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA", "label": "RESPONDENT", "start_char": 39, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "January 17, 1966", "label": "DATE", "start_char": 61, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "v. .-\n\nSTATE OF MAHARASHTRA\n\nJanuary 17, 1966\n\n[P.B. GAJENDRAGADKAR, C.J., J.C. SHAH, S.M. SIKRI,\n\nV. RAMASWAMI AND P. SATAYANARAYANA RAJU, JJ]\n\nDefence of India Rules, 1962, r. 30---Stare Government whether can ezerclse authority to order detention delegated by It to Disrrlct Magistrat~ D1tmtion order passed during pend1ncy o/ habeas corpus proceedings\n\nwhether vitiated by malice In law."}}, {"text": "P.B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 80, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 109, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S.M. SIKRI", "label": "JUDGE", "start_char": 118, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 131, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "P. SATAYANARAYANA RAJU, JJ", "label": "JUDGE", "start_char": 148, "end_char": 174, "source": "metadata", "metadata": {"canonical_name": "P. SATYANARAYANA RAJU", "offset_not_found": false}}, {"text": "Defence of India Rules, 1962", "label": "STATUTE", "start_char": 177, "end_char": 205, "source": "regex", "metadata": {}}, {"text": "February 3, 1963", "label": "DATE", "start_char": 650, "end_char": 666, "source": "ner", "metadata": {"in_sentence": "She was released on February 4, 1964 but as soon\n\nu she came out of the prison gates, she was served with a fresh order of detention dated February 3, 1963 issued by the State Oavernmcnt under r. 30 of the Defence of India Rules, 1962."}}, {"text": "Defence of India Rules, 1962", "label": "STATUTE", "start_char": 717, "end_char": 745, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 946, "end_char": 954, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Rules, 1962", "statute": "the Defence of India Rules, 1962"}}, {"text": "9th November 1962", "label": "DATE", "start_char": 1261, "end_char": 1278, "source": "ner", "metadata": {"in_sentence": "It was contended on behalf Of the appellant : (I) The State Govmunent having delegated its powers under r. 30 to District Magistrate by a notification dated 9th November 1962, it was not competent to pass an order of detention under r. 30."}}, {"text": "(1964) 6 S.C.R. 446", "label": "CASE_CITATION", "start_char": 2366, "end_char": 2385, "source": "regex", "metadata": {}}, {"text": "A Naranjan Singh Nathawan", "label": "OTHER_PERSON", "start_char": 2775, "end_char": 2800, "source": "ner", "metadata": {"in_sentence": "319 BDl\n\nA Naranjan Singh Nathawan \"· State of Punja/J, [19521 S.C.R. 395, relied on . .-.."}}, {"text": "R. K. Garg", "label": "OTHER_PERSON", "start_char": 3377, "end_char": 3387, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, for appellant (in Cr."}}, {"text": "N. S. Bindra", "label": "OTHER_PERSON", "start_char": 3466, "end_char": 3478, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra and B. R. G. K. Achar, for the respondents . ."}}, {"text": "B. R. G. K. Achar", "label": "OTHER_PERSON", "start_char": 3483, "end_char": 3500, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra and B. R. G. K. Achar, for the respondents . ."}}, {"text": "Sikrl", "label": "JUDGE", "start_char": 3527, "end_char": 3532, "source": "ner", "metadata": {"in_sentence": "Sikrl, J. These appeals by certificate granted by the Bombay High Court are directed against its judgment dated April 13, 1964 in applications filed by the applicants under art."}}, {"text": "art. 226", "label": "PROVISION", "start_char": 3700, "end_char": 3708, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 491", "label": "PROVISION", "start_char": 3734, "end_char": 3740, "source": "regex", "metadata": {"statute": null}}, {"text": "S. V. Parulekar", "label": "PETITIONER", "start_char": 3851, "end_char": 3866, "source": "ner", "metadata": {"in_sentence": "143 of 1964 has become infructuous because the appellant, S. V. Parulekar, has died."}}, {"text": "Preventive Detention Act 1950", "label": "STATUTE", "start_char": 4544, "end_char": 4573, "source": "regex", "metadata": {}}, {"text": "Government of Maharashtra", "label": "ORG", "start_char": 4603, "end_char": 4628, "source": "ner", "metadata": {"in_sentence": "On 10th November, 1962, the Government of Maharashtra revoked the order of detention dated the 7th November 1962 issued by the District Magistrate, Thana, and the revocation order was served on the petitioner on the 11th November 1962."}}, {"text": "Defence of India Rules, 1962", "label": "STATUTE", "start_char": 4970, "end_char": 4998, "source": "regex", "metadata": {}}, {"text": "Defence of India Rules 1962", "label": "STATUTE", "start_char": 5996, "end_char": 6023, "source": "regex", "metadata": {}}, {"text": "India", "label": "GPE", "start_char": 6120, "end_char": 6125, "source": "ner", "metadata": {"in_sentence": "After she actually came out of the Arthur Road District Prison gates and was a free woman, she was served with a fresh order of detention dated the 3rd February 1964 issued by the Government of Maharashtra under rule 30 of the Defence of India Rules 1962 and redetained with a view to prevent her from acting in a manner prejudicial to the defence of India, the public safety and maintenance of public order."}}, {"text": "China", "label": "GPE", "start_char": 6540, "end_char": 6545, "source": "ner", "metadata": {"in_sentence": "I further say that the petitioner is a Communist belonging to the Ranadive Group, which maintains that China has not committed any aggression on India and which actively propagates that view.\""}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 6635, "end_char": 6655, "source": "ner", "metadata": {"in_sentence": "The High Court of Bombay held that the detention of the appellant from May 1963 to February 1964 was illegal but the order of detention passed on February 3, 1964 was legal, and accordingly the appellant could not be ordered to be released."}}, {"text": "February 3, 1964", "label": "DATE", "start_char": 6777, "end_char": 6793, "source": "ner", "metadata": {"in_sentence": "The High Court of Bombay held that the detention of the appellant from May 1963 to February 1964 was illegal but the order of detention passed on February 3, 1964 was legal, and accordingly the appellant could not be ordered to be released."}}, {"text": "Garg", "label": "OTHER_PERSON", "start_char": 6963, "end_char": 6967, "source": "ner", "metadata": {"in_sentence": "Mr. Garg for the appellant raised the following points before us:\n\n(I) That the State Government having delegated its powers conferred upon it under r. 30 of the Defence of India Rules, 1962, by Notification \"Home Department (Special) No."}}, {"text": "Defence of India Rules, 1962", "label": "STATUTE", "start_char": 7121, "end_char": 7149, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 8270, "end_char": 8274, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 8278, "end_char": 8282, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 8470, "end_char": 8474, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 8478, "end_char": 8482, "source": "regex", "metadata": {"statute": null}}, {"text": "s.1", "label": "PROVISION", "start_char": 8754, "end_char": 8757, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 49(1)", "label": "PROVISION", "start_char": 9213, "end_char": 9221, "source": "regex", "metadata": {"statute": null}}, {"text": "Defence of India Rules made under the Defence of India Act, 1939", "label": "STATUTE", "start_char": 9413, "end_char": 9477, "source": "regex", "metadata": {}}, {"text": "Wills", "label": "JUDGE", "start_char": 9501, "end_char": 9506, "source": "ner", "metadata": {"in_sentence": "In Huth v. C/arke(2) Wills, J., observed at p. 395:\n\n\"Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself.\""}}, {"text": "art. 166", "label": "PROVISION", "start_char": 14319, "end_char": 14327, "source": "regex", "metadata": {"statute": null}}, {"text": "P.P. Sanzgiri", "label": "PETITIONER", "start_char": 15243, "end_char": 15256, "source": "ner", "metadata": {"in_sentence": "144of1964, the appellant P.P. Sanzgiri, adopted the arguments of Mr. Garg and further urged that he had been validly detained by order of the District Magistrate dated November 11, 1962, and there had been no proper cancellation of this order."}}, {"text": "November 11, 1962", "label": "DATE", "start_char": 15386, "end_char": 15403, "source": "ner", "metadata": {"in_sentence": "144of1964, the appellant P.P. Sanzgiri, adopted the arguments of Mr. Garg and further urged that he had been validly detained by order of the District Magistrate dated November 11, 1962, and there had been no proper cancellation of this order."}}, {"text": "SUPREMB COURT REPORTS\n\n[1966] 3 S.C.R.", "label": "COURT", "start_char": 15654, "end_char": 15692, "source": "ner", "metadata": {"in_sentence": "SUPREMB COURT REPORTS\n\n[1966] 3 S.C.R.\n\ncd now under the order dated February 3, 1964, and we need not A go into the point."}}, {"text": "February 14, 1964", "label": "DATE", "start_char": 15938, "end_char": 15955, "source": "ner", "metadata": {"in_sentence": "227/64, the orders of detention are dated February 14, 1964, but nothing turns on this difference in the dates of detention."}}]}
{"document_id": "1966_3_321_327_EN", "year": 1966, "text": "• • >\n\nTRAVANCORE TITANIUM PRODUCTS LTD.\n\nCOMMISSIONER OF INCOME-TAX, KERALA\n\nJanuary 17, 1966\n\n[K. SUBBA RAo, J.C. SHAH AND S.M. Snoo JJ.]\n\nB Income Tax Act, 1922 (11 of 1922), s. 10(2) (xv)-Wea/th-tax paid\n\non assets owned for purpose of business-Whether a pennissib/e deduction.\n\nIn computing the total earned income of the appellant company for the calendar year 1959, the Income Tax Officer disallowed a claim for deduction of Rs. 80,255 in respect of liability for payment of tax under the Wealth Tax Act, 27 of 1957 incurred by the company. Tho order of the Income Tax Officer was confirmed in appeal by the Appellate Assistant Commissioner, the Tribunal and, on a reference, by the High Court.\n\nIt was contended by the appellant company that since the company held the assets on which tax was levied for the purpose of its business and profits were earned by the use of those assets, tax paid in respect of those assets was expenditure laid out wholly and exclusively for the purpose of the business and on that account was a permissible allowance under s. 10(2) (xv) of the Income-tax Act, 1922.\n\nHELD : The amount of tax paid on the net wealth of an as.50SSCO under the Wealth Tax Act is not a permissible deduction under o. 10(2) (xv) of the Income-tax Act, for tax i• imposed under the Wealth Tax Act on the owner of the assets and not on any commercial activity, The charge of tax is the same, whether the asset are part of or used in the trading organization of the owner or are merely owned by him. [326 G-HJ\n\nFor expenditure to be regarded as being for the purpose of the assessee's business within the meaning of s. 10(2)(xv), the nature of the expenditure of outgoing must be adjudged in the light of accepted commercial practice and trading principles. The expenditure must be incidental to the business and must be necessitated or justified by commercial expediency. It must be directly and intimately connected with the business and be laid out by the tax payer in his character as a trader. To be a permissible deduction, there must be a direct and intimate connection between the expenditure and the business i.e. between the expenditure and the character of the assessce as a trader. and not as owner of assets, even if they are assets of the business. [326 F]\n\nCase law discussed.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 235 of 1963 ~\" -\"\"\"--\" ~\"\"\"\"~--~--------c~--- Appeal by special leave from the judgment and order dated August 26, 1963 of the Kerala High Court in Income-tax Referred Case No. 29 of 1962.\n\nG. B. Pai, T. A. Ramachandran and 0.C. Mathur, for the appellant.\n\nA. V. Viswanatha Sastri, N. D. Karkhanis, R. H. Dhebar and R. N. Sachthey, for the respondent.\n\n3Z2\n\nSUPREME COURT\n\nREPORTS\n\n(1966) 3 S.C.R.\n\nThe Judgment of the Court was delivered by\n\nShah, J. In computing the total earned income of the appellant Company for the calendar year 1959, the Income-tax Officer, Trivandrum, disallowed a claim for deduction of Rs. 80,255/- in respect of liability for payment of tax under the Wealth Tax Act 27 of 1957 incurred by the Company for the calendar years 1957 and\n\n1958. The order was confirmed by the Appellate Assistant Commissioner and by the Appellate Tribunal. On the following question referred by the Wealth Tax Appellate Tribunal,\n\n\"Whether on the facts and circumstances of the case, the assesscc Company is entitled to a deduction of Rs. 12,873/- being the wealth tax paid during the account year ended 29-2-1960 against the profits and gains of its business for the assessment year 1960-61 under Sec. 10 (2)(xv) of the Indian Income-tax Act ?\" the High Court of Kerala recorded an answer in the negative. The Company has appealed to this Court with special leave.\n\nThe Company claims that wealth-tax paid by it represented expenditure laid out wholly and exclusively for the purpose of its business, and on that account is a permissible allowance under s. 10(2)(xv) of the Income-tax Act. In determining the admissibility of this claim, it is necessary to ascertain the true character of the liability for payment of tax under the Wealth Tax Act. Tax is charged under s. 3 of the Wealth Tax Act, 1957, for every financial year in respect of the net wealth of every individual, Hindu undivided family and Company at the rate or rates specified in the Schedule to the Act; and 'net wealth' under the Act means the amount by which the aggregate value computed in accordance with the provisions of the Act of all the assets belonging to the assessee on the valuation date is in excess of the aggregate value of all the debts owed by the assessee on that date other than the debts specified. The tax under the Act is payable by all individuals, Hindu undivided families and Companies on the value of taxable assets belonging to the taxpayer: it is charged on the net value of the assets, and not on the business or trading activity carried on by the taxpayer. The rates of tax for companies as well as individuals and Hindu undivided families are prescribed by the Second Schedule. The slabs on which the rate of tax is nil are not uniform in the case of different taxable entities and a special exemption is given to a Company which has incurred in any year loss computed in accordance with 1s. 8, 9, IO and 12 of the Income-tax Act without referring to depreciation allowances and development\" rebates and without taking into account the losses brought forward from the earlier years, and which has not declared any dividend on its equity capital in respect of that year. It is also provided by r. 5 of the Schedule that where the profits of a company in respect of any year, before. deducting any\n\n• . ' •\n\nTRAY. TITANIUM LTD. v. C.!.T. (Shah, /,) 323\n\nof the allowances referred to in the second paragraph of Part II, are less than the amount of wealth-tax payable by it in respect of the relevant assessment year, the wealth-tax payable by the company for such assessment year shall be limited to the amount of such profits provided that the company has not declared any dividend on its equity capital in respect of that year. But by relating the quantum of liability of a company to wealth-tax in these special cases to the profits earned, the character of the tax is not altered.\n\nIt is and remains a tax charged upon the net wealth, and it is not made a tax related to or incidental to the carrying on of a business.\n\nThe rules in the Schedule merely extend the exemption which is\n\nprimarily declared in favour of a Company of which the net wealth does not exceed Rs. 5 lakhs, to a company which has in the previous year made a loss, and grant a partial exemption if the company has made profits which are inadequate to meet the wealth-tax liability at the prescribed rate.\n\nIn computing the profits or gains of an assessee who carried on business, certain allowances are permitted under s. 10(2) from the business profits, and one such head is:\n\n\"(xv) any expenditure not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure for personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation.\"\n\nAn allowance permissible under cl. (xv) in the computation of taxable income is therefore expenditure incurred in the year of account in respect of a business carried on by the assessee: the expenditure must not be in the nature of capital expenditure or personal expenses of the assessee and it must have been laid out or expended wholly and exclusively for the purpose of the business.\n\nThe argument for the Company in this case turns upon the meaning of the expressio~ \"for the purpose of such business.\" On behalf of the Company it is urged that for the purpose of its business, it holds assets and by the use of those assets profits are earned and therefore tax paid in respect of those assets is expenditure laid out for the purpose of the business. Whether an item of expenditure falls within that description has of necessity to be determined having regard to the nature of the business, the nature of the expenditure and the relation between the business and the expenditure. In adjudicating upon the claim that an outgoing is a permissible deduction under s. 10(2)(xv) of the Income-tax Act, the primary question is whether in the light of accepted commercial practice, trading principles and the relation between the business and the outgoing, the outgoing can be said to arise out of the carrying on of the business and to be incidental to that business. In the context of a variety of\n\nSUPREME COURT ltEPOllTS\n\n[1966] 3 S.C.R.\n\ntrading transactions and the relation between the transactions and the expenditure claimed as a permissible deduction, in the decisions of the courts under the Indian Income-tax Act and of the courts in the United Kingdom under the English taxing statutes, different tests arc suggested. Those tests, though adequate for the specific problem under discussion, cannot be regarded as exhaustive or necessarily applicable to other problems. When Rowlatt, J., in The Commissioners of Inland Revenue v. The Anglo Brewing Company Ltd.(') said that the expression \"for the purpose of the trade\" meant for the purpose of keeping the trade going, and of making it pay, he was making that statement in relation to the facts of the case, and he did not intend to suggest a universal test. Similarly when because of the special nature of the business, expenditure incurred for payment of rates, taxes and duties was held a permissible allowance in the computation of taxable income, it was not intended and could not be intended to be laid down that expenditure incurred for payment of rates, taxes or duties in respect of another business would be regarded necessarily as a permissible allowance. Illustrations of this class are to be found in Smith v. Lion Brewerv Company Ltd.(2) Usher's Wiltshire Brewery Ltd. v. Bruce(l) and Harrods (Buenos A.ires) Ltd. v. Taylor-Gooby.(•) In the Lion Brewery Company's case(2) a Brewery Company who were owners or lessees of licensed premises acquired as part of their business as brewer' and as a necessary incident to profitable exploitation were held entitled to the allowance in the computation of their income under Sch. D of Compensation Fund Charges imposed under the Licensing Act upon their tenants and which the tenants after paying recouped themselves by deduction from the rents payable to the Company.\n\nIn Usher's Wiltshire Brewery Ltd.'s case(3) the claim ofa Brewery Company as owners or lessees of licensed premises acquired in the course of and for the purpose of their business as brewers and as a necessary incident to the more profitable conduct of their business of certain expenses in connection with those licensed houses was allowed in the computation of their profits. In Harrod~ (Buenos Aires) Ltd's case(•)-Harrods (Buenos Aires)Ltd-a company incorporated in the United Kingdom-carried on business ofa retailstoreinArgentina and was liable to pay a ta:it known as \"substitute tall\" which was levied on joint stock companies incorporated in Argentina and on companies incorporated outside but which carried on business in Argentina through an \"empresa esrab!e\" (a \"commercial establishment\"). In proceedings for assessment of income-tax of the business the claim of the Company to deduct the \"substitute tax\" plid to the Argentina Government was accepted, for it was an expenditre without paying which the assessee Company could not carry on its business at all. In all the three cases the eltpenditure was directly related to the business organisation of the taxpayer.\n\n(I) 12 T.C. &13.\n\n(2) S T.C. 561.\n\n(l) 6 T.C. 399.\n\n(4) 4t T.C. 450.\n\n,._\n\n• • •\n\n•• '\n\n\\..,\n\n• B\n\nD .. '\n\nBut every item of expenditure merely because it is connected with the trade may not necessarily be treated as a permissible deduction. A fairly reliable approach for determining what may be regarded normally as expenditure laid out or expended wholly and exclusively for the purpose of the business was suggested in Strong and Company of Romsey Ltd. v. Woodifie!d.(1) That was a case of a Brewery Company owning a licensed house in which it carried on the business of inn-keepers. The Company had to pay damages to a customer who was, when sleeping in the inn, injured by a falling chimney, the fall of the chimney being due to the negligence of the Company's servants. The Company was held disentitled to deduct the expenditure in computing its profits for income-tax purposes.\n\nLord Loreburne, L. C., observed, in disallowing the claim as a permissible expenditure under the head expenditure laid out wholly and exclusively for the purpose of the business:\n\n\"A deduction cannot be allowed on account ofloss not connected with or arising out of such trade. That is one indication. And no sum can be deducted unless it be money wholly and exclusively laid out or expended for the purposes of such trade. That is another indication .. . . . .it does not follow that if a loss is in any sense connected with the trade, it must always be allowed as a deduction: for it may be only remotely connected with the - trade or it may be connected with something else quite as much as or even more than with the trade. I think only such losses can be deducted as are connected with it in the sense that they are really incidental to the trade itself. They cannot be deducted if they are mainly incidental to some other vocation, or fall on the trader in some character other than that of trader.\" In the same case Lord Davey observed:\n\n\"These words ........ appear to me to mean for the purpose of enabling a person to carry on and earn profits m the trade, etc. I think the disbursements permitted are such as are made for that purpose. It is not enough that the disbursement is made in the course of, or arises out of, or is connected with, the trade or is made out of the profits of the trade.\" In_ Badridas Daga v. Commissioner of lncome-tax,(2) Venkatarama Aiyar, J., observed that whether the expenditure is admissible or not will depend upon whether it can be said to arise out of the carrying on of the business and be incidental to it, and this was reaffirmed by this Court in a later judgment in Commissioner of Income-tax, Bombay v. Abdul!abhai Abdulkadar.(')\n\n(I) 5 T.C. 215\n\n(2) [1959] S.C.R. 690=34 I.T.R. 10\n\n(3) [1961] 2 S. C. R. 949=41 I. T.R. 545.\n\n326 SUPllEMB COURT llEPORTS [1966] 3 S.C.Jt.\n\nIn a recent judgment of this Court Commissioner of Incometax, Kera/av. Malayalam Plantations l.td.(1)certain amountspaidas estate duty under s. 84 of the Estate Duty Act, 1953, by a resident company incorporated outside India on the death of shareholders not domiciled in India, were sought to be deducted under s. 10(2) (xv) as expenditure laid out or expended wholly and exclusively for the purposes of the business. Subba Rao, J., speaking for the Court -0bserved at p. 705:\n\n\"The expression \"for the purpose of the business\" is wider in scope than the expression \"for the purpose of earning profits.\" Its range is wide: it may take in not only the day to day running of a business but also the rationalization of its administration and modernization of its machinery; it may include measures for the preservation of the business and for the protection of its assets and property from expropriation, coercive process or assertion of hostile title; it may also comprehend payment of statutory dues and taxes imposed as a precondition to commence or for carrying on of a business; it may comprehend many other acts incidental to the carrying on of a business.\n\nHowever wide the meaning of the expression may be, its limits are implicit in it. The purpose shall be for the purpose of the business, that is to say, the expenditure incurred shall be for the carrying on of the business and the assessce shall incur it in his capacity as a person carrying on the business.\"\n\nThe position may therefore be summarised thus: the nature of the expenditure or outgoing inust be adjudged in the light of accepted commercial practice and trading principles. The expenditure must be incidental to the business and must be necessitated or justified by commercial expediency. It must be directly and intimately connected with the business and be laid out by the taxpayer in his character as a trader. To be a permissible deduction, there must be a direct and intimate connection between the expenditure and the business i.e. between the expenditure and the character of the assessee as a trader, and not as owner of assets, even if they are assets of the business.\n\n,. .\n\n• 1\n\nIn the light of the principles the amount of tax paid on the net\n\n- .. wealth of an asscssee under the Wealth Tax Act is not a permissible deduction under s. I0(2)(xv) of the Indian Income-tax Act in his assessment to income-tax, for tax is imposed under the Wealth Tax Act on the owner of assets and not on any commercial activity.\n\nH The charge of the tax is the same, whether the assets are part of or\n\n(t) (19641 7 S.C.R. 693-53 !.T.R. 140.\n\n_L,\n\n' i '\n\n.. ·-\n\nused in the trading organisation of the owner or are merely owned by him. The assets of the taxpayer-incorporated or not-become chargeable to tax because they are owned by him, and not because they are used by him in the business.\n\nThe appeal therefore fails and is dismissed with cost~.\n\nAppeal dismissed .\n\n10 Sup, C.I./66--8", "total_entities": 56, "entities": [{"text": "TRAVANCORE TITANIUM PRODUCTS LTD", "label": "PETITIONER", "start_char": 7, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "TRAVANCORE TITANIUM PRODUCTS LTD", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, KERALA", "label": "RESPONDENT", "start_char": 42, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, KERALA", "offset_not_found": false}}, {"text": "January 17, 1966", "label": "DATE", "start_char": 78, "end_char": 94, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME-TAX, KERALA\n\nJanuary 17, 1966\n\n[K. SUBBA RAo, J.C. SHAH AND S.M. Snoo JJ.]"}}, {"text": "K. SUBBA RAo, J", "label": "JUDGE", "start_char": 97, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 113, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 143, "end_char": 163, "source": "regex", "metadata": {}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 178, "end_char": 186, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act, 1922", "statute": "Income Tax Act, 1922"}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 1062, "end_char": 1070, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act, 1922", "statute": "Income Tax Act, 1922"}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 1083, "end_char": 1103, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "SSCO under the Wealth Tax Act", "label": "STATUTE", "start_char": 1165, "end_char": 1194, "source": "regex", "metadata": {}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 1253, "end_char": 1267, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 1630, "end_char": 1642, "source": "regex", "metadata": {"linked_statute_text": "SSCO under the Wealth Tax Act", "statute": "SSCO under the Wealth Tax Act"}}, {"text": "G. B. Pai", "label": "LAWYER", "start_char": 2544, "end_char": 2553, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, T. A. Ramachandran and 0.C. Mathur, for the appellant."}}, {"text": "T. A. Ramachandran", "label": "LAWYER", "start_char": 2555, "end_char": 2573, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, T. A. Ramachandran and 0.C. Mathur, for the appellant."}}, {"text": "0.C. Mathur", "label": "LAWYER", "start_char": 2578, "end_char": 2589, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, T. A. Ramachandran and 0.C. Mathur, for the appellant."}}, {"text": "A. V. Viswanatha Sastri", "label": "LAWYER", "start_char": 2611, "end_char": 2634, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, N. D. Karkhanis, R. H. Dhebar and R. N. Sachthey, for the respondent."}}, {"text": "N. D. Karkhanis", "label": "LAWYER", "start_char": 2636, "end_char": 2651, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, N. D. Karkhanis, R. H. Dhebar and R. N. Sachthey, for the respondent."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 2653, "end_char": 2665, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, N. D. Karkhanis, R. H. Dhebar and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 2670, "end_char": 2684, "source": "ner", "metadata": {"in_sentence": "A. V. Viswanatha Sastri, N. D. Karkhanis, R. H. Dhebar and R. N. Sachthey, for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 2797, "end_char": 2801, "source": "ner", "metadata": {"in_sentence": "3Z2\n\nSUPREME COURT\n\nREPORTS\n\n(1966) 3 S.C.R.\n\nThe Judgment of the Court was delivered by\n\nShah, J. In computing the total earned income of the appellant Company for the calendar year 1959, the Income-tax Officer, Trivandrum, disallowed a claim for deduction of Rs."}}, {"text": "Trivandrum", "label": "GPE", "start_char": 2920, "end_char": 2930, "source": "ner", "metadata": {"in_sentence": "3Z2\n\nSUPREME COURT\n\nREPORTS\n\n(1966) 3 S.C.R.\n\nThe Judgment of the Court was delivered by\n\nShah, J. In computing the total earned income of the appellant Company for the calendar year 1959, the Income-tax Officer, Trivandrum, disallowed a claim for deduction of Rs."}}, {"text": "Wealth Tax Appellate Tribunal", "label": "COURT", "start_char": 3260, "end_char": 3289, "source": "ner", "metadata": {"in_sentence": "On the following question referred by the Wealth Tax Appellate Tribunal,\n\n\"Whether on the facts and circumstances of the case, the assesscc Company is entitled to a deduction of Rs."}}, {"text": "29-2-1960", "label": "DATE", "start_char": 3465, "end_char": 3474, "source": "ner", "metadata": {"in_sentence": "12,873/- being the wealth tax paid during the account year ended 29-2-1960 against the profits and gains of its business for the assessment year 1960-61 under Sec."}}, {"text": "Sec. 10", "label": "PROVISION", "start_char": 3559, "end_char": 3566, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 3589, "end_char": 3603, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High Court of Kerala", "label": "COURT", "start_char": 3611, "end_char": 3631, "source": "ner", "metadata": {"in_sentence": "the High Court of Kerala recorded an answer in the negative."}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 3916, "end_char": 3928, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 3936, "end_char": 3950, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4131, "end_char": 4135, "source": "regex", "metadata": {"statute": null}}, {"text": "Wealth Tax Act, 1957", "label": "STATUTE", "start_char": 4143, "end_char": 4163, "source": "regex", "metadata": {}}, {"text": "Hindu undivided family and Company at the rate or rates specified in the Schedule to the Act", "label": "STATUTE", "start_char": 4240, "end_char": 4332, "source": "regex", "metadata": {}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 5023, "end_char": 5038, "source": "regex", "metadata": {"linked_statute_text": "Hindu undivided family and Company at the rate or rates specified in the Schedule to the Act", "statute": "Hindu undivided family and Company at the rate or rates specified in the Schedule to the Act"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 5277, "end_char": 5291, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 6854, "end_char": 6862, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 8287, "end_char": 8299, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 8307, "end_char": 8321, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 8829, "end_char": 8843, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "United Kingdom", "label": "GPE", "start_char": 8869, "end_char": 8883, "source": "ner", "metadata": {"in_sentence": "In the context of a variety of\n\nSUPREME COURT ltEPOllTS\n\n[1966] 3 S.C.R.\n\ntrading transactions and the relation between the transactions and the expenditure claimed as a permissible deduction, in the decisions of the courts under the Indian Income-tax Act and of the courts in the United Kingdom under the English taxing statutes, different tests arc suggested."}}, {"text": "Rowlatt", "label": "JUDGE", "start_char": 9105, "end_char": 9112, "source": "ner", "metadata": {"in_sentence": "When Rowlatt, J., in The Commissioners of Inland Revenue v. The Anglo Brewing Company Ltd.(') said that the expression \"for the purpose of the trade\" meant for the purpose of keeping the trade going, and of making it pay, he was making that statement in relation to the facts of the case, and he did not intend to suggest a universal test."}}, {"text": "Lion Brewery Company", "label": "ORG", "start_char": 10036, "end_char": 10056, "source": "ner", "metadata": {"in_sentence": "Illustrations of this class are to be found in Smith v. Lion Brewerv Company Ltd.(2) Usher's Wiltshire Brewery Ltd. v. Bruce(l) and Harrods (Buenos A.ires) Ltd. v. Taylor-Gooby.(•) In the Lion Brewery Company's case(2) a Brewery Company who were owners or lessees of licensed premises acquired as part of their business as brewer' and as a necessary incident to profitable exploitation were held entitled to the allowance in the computation of their income under Sch."}}, {"text": "Compensation Fund Charges imposed under the Licensing Act", "label": "STATUTE", "start_char": 10321, "end_char": 10378, "source": "regex", "metadata": {}}, {"text": "Usher's Wiltshire Brewery Ltd.", "label": "ORG", "start_char": 10509, "end_char": 10539, "source": "ner", "metadata": {"in_sentence": "In Usher's Wiltshire Brewery Ltd.'s case(3) the claim ofa Brewery Company as owners or lessees of licensed premises acquired in the course of and for the purpose of their business as brewers and as a necessary incident to the more profitable conduct of their business of certain expenses in connection with those licensed houses was allowed in the computation of their profits."}}, {"text": "ofa Brewery Company", "label": "ORG", "start_char": 10560, "end_char": 10579, "source": "ner", "metadata": {"in_sentence": "In Usher's Wiltshire Brewery Ltd.'s case(3) the claim ofa Brewery Company as owners or lessees of licensed premises acquired in the course of and for the purpose of their business as brewers and as a necessary incident to the more profitable conduct of their business of certain expenses in connection with those licensed houses was allowed in the computation of their profits."}}, {"text": "Harrod~ (Buenos Aires) Ltd", "label": "ORG", "start_char": 10887, "end_char": 10913, "source": "ner", "metadata": {"in_sentence": "In Harrod~ (Buenos Aires) Ltd's case(•)-Harrods (Buenos Aires)Ltd-a company incorporated in the United Kingdom-carried on business ofa retailstoreinArgentina and was liable to pay a ta:it known as \"substitute tall\" which was levied on joint stock companies incorporated in Argentina and on companies incorporated outside but which carried on business in Argentina through an \"empresa esrab!e\" (a \"commercial establishment\")."}}, {"text": "Buenos Aires)Ltd-", "label": "ORG", "start_char": 10933, "end_char": 10950, "source": "ner", "metadata": {"in_sentence": "In Harrod~ (Buenos Aires) Ltd's case(•)-Harrods (Buenos Aires)Ltd-a company incorporated in the United Kingdom-carried on business ofa retailstoreinArgentina and was liable to pay a ta:it known as \"substitute tall\" which was levied on joint stock companies incorporated in Argentina and on companies incorporated outside but which carried on business in Argentina through an \"empresa esrab!e\" (a \"commercial establishment\")."}}, {"text": "Argentina", "label": "GPE", "start_char": 11157, "end_char": 11166, "source": "ner", "metadata": {"in_sentence": "In Harrod~ (Buenos Aires) Ltd's case(•)-Harrods (Buenos Aires)Ltd-a company incorporated in the United Kingdom-carried on business ofa retailstoreinArgentina and was liable to pay a ta:it known as \"substitute tall\" which was levied on joint stock companies incorporated in Argentina and on companies incorporated outside but which carried on business in Argentina through an \"empresa esrab!e\" (a \"commercial establishment\")."}}, {"text": "Argentina Government", "label": "ORG", "start_char": 11437, "end_char": 11457, "source": "ner", "metadata": {"in_sentence": "In proceedings for assessment of income-tax of the business the claim of the Company to deduct the \"substitute tax\" plid to the Argentina Government was accepted, for it was an expenditre without paying which the assessee Company could not carry on its business at all."}}, {"text": "Loreburne", "label": "JUDGE", "start_char": 12579, "end_char": 12588, "source": "ner", "metadata": {"in_sentence": "Lord Loreburne, L. C., observed, in disallowing the claim as a permissible expenditure under the head expenditure laid out wholly and exclusively for the purpose of the business:\n\n\"A deduction cannot be allowed on account ofloss not connected with or arising out of such trade."}}, {"text": "Davey", "label": "OTHER_PERSON", "start_char": 13602, "end_char": 13607, "source": "ner", "metadata": {"in_sentence": "In the same case Lord Davey observed:\n\n\"These words ........ appear to me to mean for the purpose of enabling a person to carry on and earn profits m the trade, etc."}}, {"text": "Venkatarama Aiyar", "label": "JUDGE", "start_char": 14033, "end_char": 14050, "source": "ner", "metadata": {"in_sentence": "In_ Badridas Daga v. Commissioner of lncome-tax,(2) Venkatarama Aiyar, J., observed that whether the expenditure is admissible or not will depend upon whether it can be said to arise out of the carrying on of the business and be incidental to it, and this was reaffirmed by this Court in a later judgment in Commissioner of Income-tax, Bombay v. Abdul!abhai Abdulkadar.(')"}}, {"text": "[1961] 2 S. C. R. 949", "label": "CASE_CITATION", "start_char": 14411, "end_char": 14432, "source": "regex", "metadata": {}}, {"text": "s. 84", "label": "PROVISION", "start_char": 14637, "end_char": 14642, "source": "regex", "metadata": {"statute": null}}, {"text": "Estate Duty Act, 1953", "label": "STATUTE", "start_char": 14650, "end_char": 14671, "source": "regex", "metadata": {}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 14808, "end_char": 14816, "source": "regex", "metadata": {"linked_statute_text": "the Estate Duty Act, 1953", "statute": "the Estate Duty Act, 1953"}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 14915, "end_char": 14924, "source": "ner", "metadata": {"in_sentence": "Subba Rao, J., speaking for the Court -0bserved at p. 705:\n\n\"The expression \"for the purpose of the business\" is wider in scope than the expression \"for the purpose of earning profits.\""}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 16842, "end_char": 16856, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1966_3_328_338_EN", "year": 1966, "text": "KATRA EDUCATIONAL SOCIETY\n\nSTATE OF UITAR PRADESH\" ORS.\n\nJanu11ry 17, 1966\n\n[P.B. GAJENDRAGADKAR, C.J., J.C. SHAH, S.M. SIKRI,\n\nV. RAMASWAMI AND P. SATYANARAYANA RAJU JJ.j\n\nIntermediate Educaiion Act ( U.P. 2 of 1921) as amended by Act 35 of 1958-Yalidity of ss. 16A to 161-Sections whether unreaso1uible, ducriminatory-Whetlrer within legislative power of State Legislature.\n\nThe appellant-a society registered under the Societies Regislration Act 21 of 1860--<>lnducled an educational institution at Allahabad in Ultar Pradesh.\n\nManagement of the affairs of the society was entrusted by the memorandum of association to an Executive Commiuee whose membership was confined to members of the Society.\n\nUnder the Intermediate Education Act (U.P. Act 2 of 1921) provision was made for establishing\n\na Board with powers to regulate High School and Intermediate Education.\n\nThis Act was amended by U.P. Act 35 of 1958. By s. 7 of the amending Act which came into force on January 23, 1959, ss. 16A to 161, were incorporated into U.P. Act 2 of 1921.\n\nBy leuer dated September 12, 1960, lhe Regional Inspector of Girls Schools called upon lhe Society to submit and get approved a scheme of Adminislration of lhe institution managed by it. The society thereupon presented a petition under Art. 226 of the Cons1i1u1ion for the issue of a wril quashing the orders of the Regional Inspector and requiring the authorities not to enforce the provi. sions of ss. 16A lo 161. The High Court dismissed the petition. In il.9 appeal to this Court it was contended on behalf of the Society that (I) The amending Act of 1958 was inoperative to the exlent to which it sought 10 impose controls upon the management of an educational institution registered under the Societies Registration Act and thereby directly trenched upon legislative power conferred by Entry 44 of List I and Entries\n\n10 and 18 of List Ill. (2) Section 16I was discriminatory inasmuch as it conferred uncontrolled pow.,, r on the Regional Deputy Director of Education. (3) The provisions of s. 168(3) read withs. 16D(3)(a) and\n\n(b) were unreasonable. ( 4) Section 160( 4) invaded the society's right to property guaranteed by Arts. 19 and 31 of the Constitution.\n\n(5) The provisions in question made unlawful dcrimination between private and State institutions.\n\nHELD :\n\n(i) The impugned legislation does not fall under Enlry 44 of List I.\n\nBoard of Trustees v. State of Delhi, A.J.R. 1962 S.C. 458, applied.\n\nIt cannot also he said that the pith and substance of the impugned Act relates to charities and charitable institutions or to trusts and trustees.\n\nThe true nature and character of the Act falls within the express legislative power conferred by Entry 11 of List II and merely because it inci dentally trenches upon or affected a charitable institution or the powers of the trustee. of the institution it will not on that account be beyond the legislative authority of the State.\n\n[333 E-GJ H\n\n(ii) Section 16F(4) is enacted in the interest of the students of the Institution.\n\nVl'hen the Educational Authorities do not accept the .uitability of a person selected by the management on two successive occa- 328\n\n·-\n\n. -\n\n...\n\n...\n\n• ...\n\nto conduct examinations at the end of the High School and Intermediate courses, to recognize institutions for purposes of its examinations, and to do all such other acts and things as may be requisite in order to further the objects of the Board. This Act was amended by the U.P. Act 35 of 1958. By s. 7 of the amending Act which came into force on January 23, 1959, ss. 16A to 161 were incorporated into U.P. Act 2 of 1921. Bys. 8 the State Government was authorised to promulgate Regulations in respect of matters rovered by ss. l 6A to 161.\n\nBy letter dated September 12, 1960 the Regional Inspector of Girls Schools, Hird Region, Allahabad called upon the Society to submit and get approved a Scheme of Administration of the institution managed by it. The Society thereupon presented a petition under Art. 226 of the Constitution in the High Court of Judicature at Allahabad for the issue of a writ quashing the orders passed by the Regional Inspector of Girls Schools and requiring the State of U.P., the Director of Education, the Regional Inspector of Girls Schools and the Board of High School and Intermediate Education, who were respectively respondents Nos. 1 to 4, not to enforce the provisions of ss. I 6A to 161 as originally enacted or aa modified by the Removal of Difficulties Orders issued under •· 9 of the amending Act. Jt was submitted by the Society that ss. 16A to 161 were not within the competence of the State Legislature, and also because they infringed the fundamental rights of the Society guaranteed by Arts. 14, 19(1) (c), 19(1) (f) and 31 of the Constitution. It was urged that by the Act unreasonable restrictions were imposed on the management of educational institutioas and the Act conferred unguided and untrammelled powen upon executive authorities, no distinction having been made between \"well-managed and badly-managed\" institutions. The High Court rejected the contentions raised by the Society. With special leave. the Society has appealed to this Court.\n\n• t\n\n• •\n\n• - . ..,\n\nThe effect of ss. 16A to 161 which were added to the U.P. ...\n\nAct 2 of 1921 by the amending Act 35 of 1958 is briefly this. For every institution there shall be a Scheme of Administration which shall amongst other matters provide for the constitution of a Committee of Management vested with authority to manage and conduct the affairs of the institution, and which shall describe the powers, G duties and functions of the Headmaster or the Principal and of the Committee of Management in relation to the institution and that the Headmaster or the Principal of the institution and two teache~ thereof selected by rotation according to seniority shall be exoffici9 members of the Committee with a right to vote : (s. 16A). \\..\n\nIn the case of an institution recognized at the date of commence- 11 ment of the Intermediate Education (Amendment) Act, 1958, a draft of the Scheme of Administrntion shall be prepared and submitted to the Director for his approYal: (s.16B); and if the Scheme\n\n1 >\n\nJC, B, SOC!BTY v, U. P, STATB (Shah, J.) 331\n\nof Administration is not submitted within the time allowed, the Director shall take action in accordance with cl. (a) or (b) of sub-s.\n\n(3) of s. 16 D: (s. 16C). The Director is authorised to inspect recognized institutions and to remove defects or deficiencies found on inspection or otherwise and if the management fails to comply with any directions the Director may, after considering the explanation or representation, if any, given or made by the management, refer the case to the Board for withdrawal of recognition or recommend to the State Government to proceed against the institution In the manner provided by sub-s. (4) of s. 16. Jf on receipt of a recommendation, the State Government is satisfied that the affairs of the institution are being mismanaged, or the management of the institution has wilfully or persistently failed in the perfor mancc of its duties, or the institution is being conducted otherwise than in accordance with the Scheme of Administration, or the draft of the Scheme of Administration has not been submitted within the time allowed, the State Government may by order provide for exercising control over such institution by an Authorized Controller for such period as may be specified by the Government, and on the making of such order the institution and its management shall, so long as the order continues, in force, be conducted and carried on in accordance with the provisions of the order, and every person having any function of management of such institution shall comply with such directions. Where the manage ment or any person having any function of management does not comply with or refuses to carry out any direction given by the Authori7.ed Controller, that Officer may, with the previous approval of the State Government and for such period as the State Govern ment may fix, take over the management of the institution including management of the land, buildings, funds and other assets belonging to or vested in the institution, to the exclusion of the management or any such person and wherever the Authorized Controller so takes over the management he shall have in relation to the management of the institution all such powers and authority a> the management would have if the institution were not taken over under sub-ss. (4) or (5) : (s. 16D). Qualifications for appointment as Principals, Headmasters and teachers of different subjects shall be prescribed by regulation and there shall be constituted in every recognized institution a Selection Committee for selecting candidates for appointment as teachers in the institution: (s. 16E).\n\nQualifications which the Principal or Headmaster or teacher shall possess, and the procedure for appointment of selected candidates to the office of Principal or Headmaster or teacher are also to be prescribed : (s. 16F). Every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the mana gement and such employee insofar as it is inconsistent with the provisions of the Act or with the Regulations shall be void: the\n\n332 SUPREME COURT llEPOllTS\n\n [1966] 3 S.C.R.\n\nRegulatior_i~ shall inter a/ia _Provide for the period of probation, the coadU10ns of confirmation and the procedure and conditions for promotion and punishment, scales of pay and payment of salaries, transfer of service from one rccogni7.ed institution to another, grant of leave and Provident Fund and other benefits and maintenance of record of work and service etc. The Committee of Management may not remove or dismiss from service or reduce in rank or reduce the emoluments of any Principal, Headmaster or teacher except with the prior approval in writing of the Inspector: (s. 16G). Bys. 16H the provisions of ss. 16A, 16B, 16C, sub-ss. (2) to (7) of s. 16 D and ss. 16E, 16F and 16G are not to apply to recognized institutions maintained by the State Government or the Central Government and in the case of recognized institutions maintained by a local body, the State Government may declare that all or any of those provisions shall not apply or shall apply subject to such alterations, modifications or additions as it may make. The Director may by notification in the Official Gazette delegate all or any of the powers which he exercises under the Act except certain powers: s. l 6I.\n\nSome of these provisions have been amended from time to time by orders issued under s. 9 of the amending Act. For reasons which we will presently set out, we do not propose in this appeal to enter upon the question whether the amendments were validly made. We have referred to the act as it was originally enacted.\n\nCounsel for the Society contends that the amending Act insofar as it incorporates ss. 16A to 161 in the U.P. Act 2 of 1921 is beyond the legislative competence of the State Legislature, because in substance it seeks to supersede the provisions of the Societies\n\nRegistration Act, 1860-a field of legislation which is exclusively within the competence of the Parliament-and in any event because the Act insofar as it affects the powers of trustees of charitable institutions cannot be enacted without conforming to the requirements of Art. 254.\n\nManagement of the affairs of the Society was entrusted by Its memorandum of association to the Executive Committee, but the Society is required bys. 16A to submit a Scheme of Administration providing for the constitution of a Committee of Management G invested with authority to manage and conduct the affairs of the\n\nSociety, and of this Committee of Management the Headmaster or the Principal and two teachers selected by rotation are ex officio members. The Director has the power to inspect the School and to interfeit with the management calling upon them to remove any defect or deficiency found on inspection, and the State Government H is empowered to appoint an Authorized Controller to exercise with respect to the institution and its management such functions or control as may be specified in the order of the State Government.\n\n~'-\n\n1 •\n\n_, '\n\n__)\n\n- <\n\nIn the matter of appointment and removal of the Principal or the Headmaster, and teachers the authority of the Executive Conimittteeof the Society is restricted. Management of the affairs since the enactment of the amending Act ha_s therefore to be carried on not in accordance with the memorandum of association of tile Society, but in accordance with and subject to the provisions of ss.\n\n16A to 161 as added by the amending Act.\n\nPower of the State Legislature to legislate under the head \"education including Universities\" in Entry 11 of List II of the 7th Schedule would prima facie include the power to impose restrictions on the management of educational institutions in matters relating to education. The pith and substance of the impugned legislation being in regard to the field of education within the competence of the State Legislature, authority to legislate in respect of the maintenance of control over educational institutions imparting higher secondary education and for that purpose to make provisions for proper administration of the educational institutions was not denied. But it was said that the impugned Act is inoperative to the extent to which it seeks to impose controls upon the management of an educational institution registered under the Societies Registration Act and managed through trustees, and thereby directly trenches upon legislative power conferred by Entry 44 of List I and Entries 10 & 18 of List III. This argument has no substance. This Court has in Board of Trwtu1 v.\n\nState of Delhi oi held that legislation which deprives the Board of Management of a Society registered under the Societies Registration Act of the power of management and creates a new Board does not fall within Entry 44 of List I, but falls under Entry 32 of List II, for by registration under the Societies Registration Act the Society does not acquire a corporate status. It cannot also be said that the pith and substance of the Act relates to charities or charitable institutions, or to trusts or trustees. If the true nature and character of the Act falls within the express legislative power conferred by Entry 11 of List II, merely because it incidentally trenches upon or affects a charitable institution, or the powers of trustees of the institution, it will not on that account be beyond the legislative authority of the State. The impact of the Act upon the rights of the trustees or the management of a charitable institution is purely incidental, the true object of the legislation being to provide for rontrol over educational institutions. The amending Act was therefore within the competence of the State Legislature and the fact that it incidentally affected the powers of the trustees or the management in respect of educational institutions which may be regarded as charitable, could not detract from the validity of the exercise of that power.\n\n(1) AJ.R. 1962 S. C. 4S8.\n\nThe plea that certain specific provisions were invalid as infringing Aris. 19, 31 and 14 may now be considered. Section\n\n16F (4) was challenged as conferring an uncontrolled power upon the Regional Deputy Director of Education.\n\nBy that provision. whco a recommendation for appointment of a teacher or a Principal or Headmaster made by the management has been rejecied and another selection made is again disapproved after representation of the management ii; considered, the Regional Deputy Director of Education in case of a teacher, and the Director in case of a\n\nPrincipal or Headmaster, may appoint any qualified person out of the list of candidates applying for the vacancies and such appointment is made final.\n\nIt is clear that the selection of teachers and principals or headmasters is in the first instance left to the Committee of Management. But the exercise of the power is subject to approval of the Education Authorities. The Educational Authorities may reject the selection after considering the repr=ntation of the management. The Selection Committee would then have power to make another recommendation. If that second recommendation alio be not accepted after considering the representation made by the management, power is conferred upon the Educational Authoritie1 to make appointments of qualified persons out of the list of candidates applying for the vacancies.\n\nBut the person to be so appointed must possess the prescribed qualifications, and his name must be included in the list of candidates applying for the vacancy. The provision is enacted in the interest of the students of the institution.\n\nWhere the Educational Authorities do not accept the suitability of a person selected by the management on two successive occasions in respect of the same vacancy, the Educational Authorities have been given the power to fill up the vacancy. It is implicit in the provision that the power has to be e11ercised by the Educational Authority in the interest of the institution and for serving the cause of education, and it cannot be said that the power conferred is uncontrolled.\n\nIt was then urged that the provisions of s. 16B(3) read with s. 16(d) (3) (a) & (b) are unreasonable provisions. Bys. 16 D power is given to the Director to inspect recognized institutions and to direct removal of defects. If the management fails to comply with the directions made by the Director, that Officer may after considering the explanation or representation, if any, given or made by the management, refer the case to the Board for withdrawal of recognition or recommend to the State Government to proceed against the institution under sub-s.\n\n(4) and the powers which the State Government may exercise after being satisfied that the affairs of the intitution are being mismanaged or that the management has wilfully or persistently failed in the performance of its duties, include the power to appoint an Authorised Controller to anage the affairs of the institution for such period as may he specified by\n\nD •\n\nF ...\n\nthe Government. The provision is disciplinary and enacted for\n\necuring the best interests of the students. The State in a democratic set-up is vitally interested in securing a healthy system of imparting education for its coming generation of citizens, and if the m1magement is recalcitrant and declines to afford facilities for enforcement of the provisions enacted in the interests of the students,\n\n11 provision authorising the State Government to enter upon the management through its Authorized Controller cannot be regarded ns unreasonable.\n\nSection 16B (3) authorises the State Government to take action under s. 160 (3) in the event of the Scheme of Administration not being submitted. The basis of an effective exercise of the controls envisaged by the amending provisions is the Scheme of Administration for educational institutions. If with a view to prevent enforcement of the provisions of the Act the management seeks to nullify the control envisaged by the provisions of the Act by the State Government, a provision whereby compliance with the requirements of the statute may be secured cannot also be regarded as unreasonable.\n\nIt was then urged that property of the Society is taken away under s. 160 ( 4) if the Scheme of Administration is not submitted within the time allowed, and the Authorized Controller is appointed by the Government pursuant to a recommendation made under sub-s. (3) of s. 160. But on a plain reading of the terms of s.\n\n160 (4) it is clear that the powers contemplated to be entrusted to the Authorized Controller are merely of management. Management of the institution in respect of which an Authorized Controller has been appointed has to be conducted and carried on in accordance with the directions given by the Authorized Controller.\n\nThe property continues to remain the property of the institution: only the right of management of the recalcitrant managers is taken away temporarily to secure compliance with the provisions of the Act. Temporary deprivation of management to secure compliance with the provisions of the Education Act does not amount to deprivation of property of the educational institution which may attract the protection guaranteed by Art. 19 or Art. 31 of the Constitution.\n\nIt was the• urged that unlawful discrimination is made between educational institutions maintained. by private citizens and institutions maintained by the State Government or the Central Government or local bodies. On that part of the case it may be noticed that the petition filed by the Society is singularly defective: it is baldly averred in the petition that the provisions of s. 16H are ultra vires of the U.P. Legislature as they are discriminatory and infringe the guarantee of the fundamental freedom under Art. 14 of the Constitution. Section 16H exempts all recognized educa.\n\ntional institutions maintained by the State Government and the Central Government from the operation of certain specified provisions of the Act and in the case of recognized institutions maintained by a local body the State Government may declare that all or any of those provisions shall not apply or shall apply subject to such alterations, modifications or additions as it may make.\n\nPrima facie, there is a justifiable classification between the privately managed educational institutions and those maintained by the State Government, the Central Government and local bodies.\n\nTo claim the protection of Art. 14 it must be shown that persons differently treated are similarly situated and discrimination is made with an uneven hand. In the petition, no particulars are furnished as to why the classification made is not based on a rational basis having relation to the objects sought to be achieved thereby. In the affidavit which has been filed on behalf of the State by the Deputy Director of Education it is stated that since the termination of the Second World War there was a marked increase in the number of private schools imparting higher secondary education and there were many complaints against the management of those schools, and discontentment among the teachers was rife. A Committee appointed by the State Government to enquire into the conditions of the private institutions was of the view that the managing committees of the private schools as then constituted were unsatisfactory as many of them were ridden by factions and they had failed to give a sense of security to teachers, that it was necessary that teachers should have a right of representation on such managing committees, and that the Government should have power to supersede any managing committee for persistent and serious dereliction of duty.\n\nAnother Committee appointed by the Government of U.P. to examine the progress of the scheme of reorganisation of secondary education recommended that in the interest of better management of non-Government institutions the head of the institution and representatives of the teachers of the institution should be included in the managing committee of each aided institution to support and safeguard the legitimate interests of the teachers. The Government had also received representations from time to time from associatioll! interested in education that the service conditions of teachers should be ameliorated and high handedness on the part of the management of the recognized institutions should be checked. From the statistics collected by the Director it appeared that a situation had arisen which required effective measures to be adopted for reasonably rci; tricting the activities of the managing bodies of the recognized institutions in the interest of the students and the teachers with a view to harmonise the relationship between the teachers and the management so as to bring about an atmosphere conducive to efficient imparting of education.\n\nA table was incorporall:d in paragraph-16 of the affidavit showing the number of recognized educational institutions imparting higher secondary education.\n\n,..\n\n• .,\n\nFrom an analysis of that table it is apparent that between the years 1956-57 and 1959-60 the number of State Government institutio11s was less than 9% of the total number of the institutions, and the number of Central Government institutions was Jess than 0 5 % and that of local bodies' institutions approximately 2 5 %· The institutions run by the State Government, Central Government and local bodies were governed by definite rules laying down the conditions of service of teachers and the institutions were run through official agencies under conditions which were entirely different from the conditions prevailing in the privately managed institutions. Another table showed that there was year after year great disparity between the percentages of successful candidates trained in the Government and local body institutions, and non- Government institutions. The materials placed on the record by the State, viewed in the light of complete absence of any details furnished by the Society, are sufficient to indicate that the plea of unlawful discrimination has no basis.\n\nIt was then urged that the State had accorded to the Society and others similarly situated, as against the Anglo-Indian Schools which are privately managed institutions, a discriminatory treatment to the detriment of the former. But there is no specific allegation in the petition in this behalf. From the table submitted in paragraph-18 of the affidavit of the Director of Education it appears that the number of students appearing from the Anglo-Indian Schools is very small, that no adverse reports were received against the management of such institutions, and that there is a separate Code of Regulations for the Anglo-Indian Schools in the State of U.P. laying down the necessary conditions with regard to all the important aspects of their educational activities and such institutions are not governed by the U.P. Educational Code of 1958 which applies to other recognized institutions. A plea of unlawful discrimination cannot be adjudged unless the petition contains a full averment of the grounds on which equality is claimed, and the denial of equality is pleaded as not based on a rational relation to the object sought to be achieved by the statute which makes a classification. We therefore do not propose to deal with this question in this appeal.\n\nThere only remains to be considered the challenge to the validity of s. 9 of the amending Act. By that section the State Government has been authorized for the purpose of removing any difficulties in relation to the enforcement of the Act to direct that the Act shall take effect subject to such adaptations, whether by way of modification, addition or omission as it may deem necessary or expedient and may make such other temporary provision for the purpose of removing any such difficulty as it may deem to be necessary or expedient. The High Court was of the view that the legislative policy has been laid down in the amending Act and by\n\ns. 9 power has been conferred on the State Government for the purpose of removing any difficulties in relation to the enforcement of the Act, and since this may be done only within a period of twelve months from the date of the commencement of the Act and the adaptations whether by way of modification, addition or omission may only be made for the purpose of removing any difficulties in relation to the enforcement of the Act, no legislative power was conferred thereby on the State Government, and on that account the provisions are not invalid. The High Court also observed that the period in respect of which various orders were passed had expired and it was therefore immaterial for the purpose of the petition to consider whether s. 9 of the impugned Act is invalid. In our opinion, on the averments made in the petition and the materials brought before this Court, it is unnecessary to enter upon the question as to the validity of s. 9 and the orders issued thereunder.\n\nNo specific Removal of Difficulties Order affecting the rights of the Society has been brought to our notice. But we may state -that nothing in this judgment may be understood as according approval to the views expressed by the High Court on the validity -of s. 9 or the ordes issued thereunder. We leave that question open .to be canvassed when a suitable occasion arises.\n\nThe appeal fails and is dismissed with cost~\n\nAppeal dismissed.\n\n• •\n\n. \\.\n\n' ~-", "total_entities": 79, "entities": [{"text": "KATRA EDUCATIONAL SOCIETY", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "KATRA EDUCATIONAL SOCIETY", "offset_not_found": false}}, {"text": "STATE OF UITAR PRADESH\" ORS", "label": "RESPONDENT", "start_char": 27, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTTAR PRADESH & ORS", "offset_not_found": false}}, {"text": "Janu11ry 17, 1966", "label": "DATE", "start_char": 57, "end_char": 74, "source": "ner", "metadata": {"in_sentence": "Janu11ry 17, 1966\n\n[P.B. GAJENDRAGADKAR, C.J., J.C. SHAH, S.M. SIKRI,\n\nV. RAMASWAMI AND P. SATYANARAYANA RAJU JJ.j\n\nIntermediate Educaiion Act ( U.P. 2 of 1921) as amended by Act 35 of 1958-Yalidity of ss."}}, {"text": "P.B. 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SATYANARAYANA RAJU", "offset_not_found": false}}, {"text": "Intermediate Educaiion Act", "label": "STATUTE", "start_char": 173, "end_char": 199, "source": "regex", "metadata": {}}, {"text": "ss. 16A to 161", "label": "PROVISION", "start_char": 259, "end_char": 273, "source": "regex", "metadata": {"linked_statute_text": "Intermediate Educaiion Act", "statute": "Intermediate Educaiion Act"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 918, "end_char": 922, "source": "regex", "metadata": {"linked_statute_text": "Intermediate Educaiion Act", "statute": "Intermediate Educaiion Act"}}, {"text": "January 23, 1959", "label": "DATE", "start_char": 968, "end_char": 984, "source": "ner", "metadata": {"in_sentence": "By s. 7 of the amending Act which came into force on January 23, 1959, ss."}}, {"text": "ss. 16A to 161", "label": "PROVISION", "start_char": 986, "end_char": 1000, "source": "regex", "metadata": {"linked_statute_text": "Intermediate Educaiion Act", "statute": "Intermediate 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"end_char": 2052, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 160( 4)", "label": "PROVISION", "start_char": 2108, "end_char": 2123, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 19 and 31", "label": "PROVISION", "start_char": 2178, "end_char": 2193, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16F(4)", "label": "PROVISION", "start_char": 2960, "end_char": 2974, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 3497, "end_char": 3501, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 16A to 161", "label": "PROVISION", "start_char": 3565, "end_char": 3579, "source": "regex", "metadata": {"statute": null}}, {"text": "Regional Inspector of Girls Schools, Hird Region,", "label": "PETITIONER", "start_char": 3782, "end_char": 3831, "source": "ner", "metadata": {"in_sentence": "By letter dated September 12, 1960 the Regional Inspector of Girls Schools, Hird 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of Girls Schools and the Board of High School and Intermediate Education, who were respectively respondents Nos."}}, {"text": "State of U.P.", "label": "ORG", "start_char": 4189, "end_char": 4202, "source": "ner", "metadata": {"in_sentence": "226 of the Constitution in the High Court of Judicature at Allahabad for the issue of a writ quashing the orders passed by the Regional Inspector of Girls Schools and requiring the State of U.P., the Director of Education, the Regional Inspector of Girls Schools and the Board of High School and Intermediate Education, who were respectively respondents Nos."}}, {"text": "Board of High School and Intermediate Education", "label": "ORG", "start_char": 4279, "end_char": 4326, "source": "ner", "metadata": {"in_sentence": "226 of the Constitution in the High Court of Judicature at Allahabad for the issue of a writ quashing the orders passed by the Regional Inspector of Girls Schools and requiring the State of U.P., the Director of Education, the Regional Inspector of Girls Schools and the Board of High School and Intermediate Education, who were respectively respondents Nos."}}, {"text": "ss. 16A to 161", "label": "PROVISION", "start_char": 4575, "end_char": 4589, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 14, 19(1)", "label": "PROVISION", "start_char": 4731, "end_char": 4746, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 16A to 161", "label": "PROVISION", "start_char": 5232, "end_char": 5246, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16A", "label": "PROVISION", "start_char": 5932, "end_char": 5938, "source": "regex", "metadata": {"statute": null}}, {"text": "s.16B", "label": "PROVISION", "start_char": 6180, "end_char": 6185, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 6401, "end_char": 6406, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16C", "label": "PROVISION", "start_char": 6411, "end_char": 6417, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 6893, "end_char": 6898, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16D", "label": "PROVISION", "start_char": 8553, "end_char": 8559, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16E", "label": "PROVISION", "start_char": 8848, "end_char": 8854, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16F", "label": "PROVISION", "start_char": 9071, "end_char": 9077, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16G", "label": "PROVISION", "start_char": 10007, "end_char": 10013, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 16A, 16B, 16C", "label": "PROVISION", "start_char": 10043, "end_char": 10060, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 10084, "end_char": 10089, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 16E, 16F and 16G", "label": "PROVISION", "start_char": 10096, "end_char": 10116, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 10203, "end_char": 10221, "source": "ner", "metadata": {"in_sentence": "16E, 16F and 16G are not to apply to recognized institutions maintained by the State Government or the Central Government and in the case of recognized institutions maintained by a local body, the State Government may declare that all or any of those provisions shall not apply or shall apply subject to such alterations, modifications or additions as it may make."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 10706, "end_char": 10710, "source": "regex", "metadata": {"statute": null}}, {"text": "Counsel for the Society contends that the amending Act", "label": "STATUTE", "start_char": 10938, "end_char": 10992, "source": "regex", "metadata": {}}, {"text": "ss. 16A to 161", "label": "PROVISION", "start_char": 11020, "end_char": 11034, "source": "regex", "metadata": {"linked_statute_text": "Counsel for the Society contends that the amending Act", "statute": "Counsel for the Society contends that the amending Act"}}, {"text": "Registration Act, 1860", "label": "STATUTE", "start_char": 11200, "end_char": 11222, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Parliament", "label": "ORG", "start_char": 11296, "end_char": 11306, "source": "ner", "metadata": {"in_sentence": "16A to 161 in the U.P. Act 2 of 1921 is beyond the legislative competence of the State Legislature, because in substance it seeks to supersede the provisions of the Societies\n\nRegistration Act, 1860-a field of legislation which is exclusively within the competence of the Parliament-and in any event because the Act insofar as it affects the powers of trustees of charitable institutions cannot be enacted without conforming to the requirements of Art."}}, {"text": "Art. 254", "label": "PROVISION", "start_char": 11472, "end_char": 11480, "source": "regex", "metadata": {"linked_statute_text": "the Societies\n\nRegistration Act, 1860", "statute": "the Societies\n\nRegistration Act, 1860"}}, {"text": "ss.\n\n16A to 161", "label": "PROVISION", "start_char": 12736, "end_char": 12751, "source": "regex", "metadata": {"statute": null}}, {"text": "Societies Registration Act", "label": "STATUTE", "start_char": 13620, "end_char": 13646, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Societies Registration Act", "label": "STATUTE", "start_char": 13978, "end_char": 14004, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Societies Registration Act", "label": "STATUTE", "start_char": 14164, "end_char": 14190, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section\n\n16F", "label": "PROVISION", "start_char": 15370, "end_char": 15382, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16B(3)", "label": "PROVISION", "start_char": 17402, "end_char": 17411, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(d)", "label": "PROVISION", "start_char": 17422, "end_char": 17430, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16B", "label": "PROVISION", "start_char": 18839, "end_char": 18850, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 160", "label": "PROVISION", "start_char": 18908, "end_char": 18914, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 160", "label": "PROVISION", "start_char": 19502, "end_char": 19508, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 160", "label": "PROVISION", "start_char": 19703, "end_char": 19709, "source": "regex", "metadata": {"statute": null}}, {"text": "s.\n\n160", "label": "PROVISION", "start_char": 19750, "end_char": 19757, "source": "regex", "metadata": {"statute": null}}, {"text": "Temporary deprivation of management to secure compliance with the provisions of the Education Act", "label": "STATUTE", "start_char": 20277, "end_char": 20374, "source": "regex", "metadata": {}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 20496, "end_char": 20503, "source": "regex", "metadata": {"linked_statute_text": "Temporary deprivation of management to secure compliance with the provisions of the Education Act", "statute": "Temporary deprivation of management to secure compliance with the provisions of the Education Act"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 20507, "end_char": 20514, "source": "regex", "metadata": {"linked_statute_text": "Temporary deprivation of management to secure compliance with the provisions of the Education Act", "statute": "Temporary deprivation of management to secure compliance with the provisions of the Education Act"}}, {"text": "s. 16H", "label": "PROVISION", "start_char": 20919, "end_char": 20925, "source": "regex", "metadata": {"linked_statute_text": "Temporary deprivation of management to secure compliance with the provisions of the Education Act", "statute": "Temporary deprivation of management to secure compliance with the provisions of the Education Act"}}, {"text": "U.P. Legislature", "label": "ORG", "start_char": 20949, "end_char": 20965, "source": "ner", "metadata": {"in_sentence": "On that part of the case it may be noticed that the petition filed by the Society is singularly defective: it is baldly averred in the petition that the provisions of s. 16H are ultra vires of the U.P. Legislature as they are discriminatory and infringe the guarantee of the fundamental freedom under Art."}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 21053, "end_char": 21060, "source": "regex", "metadata": {"linked_statute_text": "Temporary deprivation of management to secure compliance with the provisions of the Education Act", "statute": "Temporary deprivation of management to secure compliance with the provisions of the Education Act"}}, {"text": "Section 16H", "label": "PROVISION", "start_char": 21082, "end_char": 21093, "source": "regex", "metadata": {"linked_statute_text": "Temporary deprivation of management to secure compliance with the provisions of the Education Act", "statute": "Temporary deprivation of management to secure compliance with the provisions of the Education Act"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 21733, "end_char": 21740, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of U.P.", "label": "ORG", "start_char": 22995, "end_char": 23013, "source": "ner", "metadata": {"in_sentence": "Another Committee appointed by the Government of U.P. to examine the progress of the scheme of reorganisation of secondary education recommended that in the interest of better management of non-Government institutions the head of the institution and representatives of the teachers of the institution should be included in the managing committee of each aided institution to support and safeguard the legitimate interests of the teachers."}}, {"text": "U.P.", "label": "GPE", "start_char": 26017, "end_char": 26021, "source": "ner", "metadata": {"in_sentence": "From the table submitted in paragraph-18 of the affidavit of the Director of Education it appears that the number of students appearing from the Anglo-Indian Schools is very small, that no adverse reports were received against the management of such institutions, and that there is a separate Code of Regulations for the Anglo-Indian Schools in the State of U.P. laying down the necessary conditions with regard to all the important aspects of their educational activities and such institutions are not governed by the U.P. Educational Code of 1958 which applies to other recognized institutions."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 26695, "end_char": 26699, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 27269, "end_char": 27273, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 28007, "end_char": 28011, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 28210, "end_char": 28214, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 28509, "end_char": 28513, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_339_343_EN", "year": 1966, "text": ".- F\n\nGULAM YASIN KHAN\n\nSURI SAHEBRAO YESHWANTRAO WALASKAR & ORS.\n\nJanuary, 17, 1966\n\n[P. B. GAJENDRAGADKAR, C.J., J. C. SHAH AND S. M. SIKRI,\n\nV. RAMASWAMI AND P. SATYANARAYANA RAJU, JJ.]\n\n' Central Provinees Jc Berar Mu11icipa/itl<S Act, 1922 (C.P. Berar Act 2: of 1922), ' 15(1)--Candidate's son employed by Municipality-Whetlier dl•qualification,\n\nThe appellant and respondent No. I were candidates for election os members ID the Municipal Committee, Malkapur.\n\nRespondent No. I objected, at the time of scrutiny, to the candidature. of the appellant on. the ground that the appellant had an interest in the Municipal Committee because his son was employed by the Committee and so, be w.. di!- qualified from standing for election under s. IS (1) of the Central Provinces & Bernr Municipalities Act, 1922.\n\nThe appellant disputed the validity of the objection by sayin,'l that his son was not staying with him aad had no connection with him whatsoever. The appellant and bia sons. were living in the same house, but each one lived in the portion allotted to him, and messed oeparately, Though tho ration-card w.. in the name of the appellant for the whole family and the income shown therein .. the income of the family Wlli only that of the appellant, the earnings of thit sons were not utilized for purposes of the family. The Supervising Officor overruled the objection. Thereupon, respondent No. 1 filed a writ petition in the High Court, in which the objection was upheld. In appeal to this Court,\n\nHELD : The mere relationship of a person with an employee of the Municipal Committee does not justify the mferenco that 1uch a person has interest direct or indirect in his employment under the Municipal Committee.\n\nThe interest to which s. 15 (1 ) of the Act refers cannot mem mere sentimental or friendly interest; it must mean interest which is pecuniary, or material, or of a similar nature. Hence the enquiry should' be not whether the appellant is interested in his son but whether the appellant is interested m the employment of his son.\n\nIn the circumstances of this case. all that was proved was the mere relationship between the appellant and his son who was the employee of the Municipal Committee. Therefore, the conclusion of the High Court,. based on that relationship, was erroneous.\n\n[341 H; 342 E-F; 343 F)\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 936of1965.\n\nAppeal by special leave from the judgment and order dated April 17, 1964 of the Bombay High Court (Nagpur Bench) at Nagpur in Special Civil Application No. 173 of 1964.\n\nM. C. Setalvad and A. G. Ratnaparkhl, for the appellant.\n\nK. L. Gauba, D. D. Verma, S. S. Khanduja and Ganpat Ral, ,4 for the respondents.\n\nH The Judgment of the Court was delivered by Gajendragadkar, C. J. The appellant, Gulam Yasin Khan, and respondent No. !, Sahebrao Yeshwantrao Walaskar, were candi-\n\nSUPREME COURT REPORTS\n\n[1966) 3 S.C.R.\n\ndates for election as members to the Municipal Committee, Malkapur, District Buldana, from Ward No. 17. The date fixed for filing the nomination papers was 16th March, 1964, and the date for scrutiny was 18th March, 1964. Both the appellant and respondent No. I had filed their nomination papers as required by the relevant Rules.\n\nWhen the stage of scrutiny arrived, respondent No. I objected to the validity of the candidature of the appellant.\n\nHe alleged that the appellant's son Khalildad Khan was a Moharir on Octroi Naka employed by the Municipal Committee; as such, he was a servant of the Committee. According to respondent No. I. the employment of the appellant's son by the Municipal Committee showed that the appellant had an interest in the Municipal Commiltee; and so, he was disqualified from standing for election under section 15(1) of the Central Provinces and Berar Municipalitica Act, 1922 (No. II of 1922) (hereinafter called 'the Act'). The appellant disputed the validity of this objection.\n\nHe alleged that his son was not staying with him and had no connection with him whatsoever.\n\nOn the 18th March, 1964, the Supervising Officer over-ruled D the objection raised by respondent No. I. He held that on the facts brought to his notice, s. 15( I) of the Act was inapplicable.\n\nAggrieved by this order, respondent No. I filed a Special Civil Application No. 173 of 1964 under Articles 226 and 227 of the Constitution before the Bombay High Court (Nagpur Bench) on the 3rd April, 1964.\n\nBy his petition, respondent No. I urged that the decision of the Supervising Offioer over-ruling his objection to the candidature of the appellant was patently invalid in law; and so, he asked for a writ, order or direction of an appropriate nature setting aside the impugned order of the Supervising Officer and prohibiting him from holding the election from Ward No. 17 as scheduled on the 19th April, 1964.\n\nThis writ petition was resisted by the appellant on the same grounds which he had urged before the Supervising Officer. The High Court, however, upheld the objection raised by respondent No. I, set aside the order passed by the Supervising Officer, and held that the appellant was disqualified from standing for election under s.15(1) of the Act. In consequence, it directed that the nomination paper filed by the appellant should be rejected. It appears that from Ward No. 17, only two nomination papers had been filed-one of the appellant and the other or respondent No. I.\n\nIn view of the fact that after the rejection of the nomination paper of the appellant, respondent No. I was the only candidate who had offered for election on behalf of Ward No. 17, the High Court declared that respondent No. I had been duly elected from the said Ward. It is against this decision that the appellant has come to this Court by special leave: and the short question which has\n\n.......\n\n~ -\"' . ..\n\n• ,~\n\nYAtlN KHAN l'. WALASKAR (Gajt.tldragadkar, C./.) 341\n\nbeen argued before us by Mr .. Setalvad on bahalf of the appellant is that the High Court erred in law in holding that on the facts proved in this case, the appellant was disqualified for being nominated as member of the Municipal Committee under s. 15(1) of the Act.\n\nBefore dealing with this point, it is relevant to refer to the facts which have either been found or admitted in the present proceedings. It appears that the appellant has three adult sons, including Khalildad Khan who has been employed by the Municipal Committee. The three sons and the father live in the same house, but mess separately. They have no share in each other's income. The earnings of the sons and the father are not put into the common hotch-pot. There are separate living arrangements in the house, and each one lives in a portion of the house allotted to him. It is true that the ration card is in the name of the appellant for the whole family, but it is admitted that the income of Rs. 2,000 which is shown in the ration card as the income of the family is the income of the appellant himself; it does not include the incbtne earned by his sons, and it is plain that the salary earned by Khalildad Khan is used by himself for the maintenance of his own family. There is no doubt that the appellant and his sons being Mcihammedans, cannot be said to be members of an undivided family in the sense in which that expression is used in regard to Hindus. It is in the light of these facts that we have to decide the question as to whether the High Court was right in holding that the appellant was disqualified under s. 15(1) of the Act.\n\nThe Act was passed in 1923 to make better provision for the organisation and administration of municipalities in Madhya Pradesh. It contains provisions which are true to the pattern of municipal legislation of this type. Naturally, one of its sections deals with the question of disqualification of candidates as in all municipal Acts; it is section 15. Section 15 by clause (J) provides that no person shall be eligible for election, selection or nomination as a member of a Committee, if such person had directly or indirectly any share or interest in any contract with, by or on behalf of the Committee, while owning such share or interest.\n\nThe question which we have to consider is whether by virtue of his relationship with Khalildad Khan, the appellant can be said to have any indirect share or interest in the employment of Khalildad Khan with the Muncipal Committee. We are assuming for the purpose of dealing with this point that the contract to which clause\n\n(1) refers, includes employment, though unlike other similar statutes, the word \"employment\" is not specifically mentioned in the said clause. In order to incur disqualification, what the clause requires is \"interest or share in any contract\"; it may either be a share or an interest; and if it is an interest, the interest may be direct or\n\nSUPREME COURT\n\nRF.PORTS\n\n [196,] 3 S.C.R.\n\nindirect. But it is plain that the interest to which the clause refers, cannot mean mere sentimental or friendly interests; it must mean interest which is pecuniary, or material or of a similar nature.\n\nIf the interest is of this latter category, it would suffice to incur disqualification even if it is indirect. But it is noticeable that the clause also requires that the person who incurs disqualification by such interest must \"own such share or interest\". It is not easy to determine the scope of the limitation introduced by this last sub-clause.\n\nMr. Gauba for respondent No. I urged that the clause \"owning such share or interest\" is tautologous when it refers to direct interest or share, and is meaningless when it refers to indirect share or interest. Prima facie, there is some force in this contention; but whatever may be the exact denotation of this clause, it does serve the purpose of limiting the character of the share or interest which incurs disqualification prescribed by the clause, and it would not be easy to ignore the existence of the last portion of the calusc altogether. ll is quite true that the purpose and the object of prescribing the several disqualifications enumerated in clauses (a) to (I) ofs. 15 of the Act is to ensure the purity of the administration of municipal Committees, and in that sense, it may be permissible to hold that the different clauses enumerated in section 15 should not receive an unduly narrow or restricted construction. But even if we were to adopt a liberal construction of s. 15(1), we cannot escape the conclusion that the interest or share has to be in the contract itself. When we are enquiring as to whether the appellant is interested directly or indirectly in the employment of his son we cannot overlook the fact that the enquiry is not as to whether the appellant is interested in the son, but the enquiry is whether the appellant is interested in the employment of the son. The distinction between the two enquiries may appear to be subtle, but, nevertheless, for the purpose of construing the clause, it is very relevant.\n\nConsidered from this point of view, on the facts proved in this case, we find it difficult to hold that by mere relationship with his son, the appellant can be said to be either directly or indirectly interested in his employment.\n\nIncidentally, we may point out that clause (k) of s. 15 refer~ to the disqualification resulting from the fact that the person concerned holds :my office of profit under the Committee. In other words, it deals with a case where the person offering for election himself holds any office of profit under the Committee; and naturally that constitutes a disqualification. Having referred to the case 'or a person holding an office of profit under the Committee, clause (1) does not refer to employment i11 terms, though, as we will presently point out, similar provisions in other municipal Acts refer to employment in this context. But quite apart from this co1111ideration, it is not easy to hold that the appellant owns any\n\nH -\n\n' ..\n\nYASIN KHAN v. WALASKAR (Gajendragadkar, C.J.) 343\n\nkind of interest in the employment of his son or even otherwise is directly or indirectly interested in the said employment. . _..;..--:- ,,...\n\nThis question has, in a sense, become academic, because the Act has been repealed by Maharashtra Act 40 of 1965. Section 16(1) (i) of this repealing Act deals with the question covered by s. 15(1) of the Act. Section 16(1) (i) provides that no person shall be qualified to become a Councillor wheather by election, co-\n\n-~ ' \"\n\nB option or nomination, who, save as hereinafter provided, has directly or indirectly, by himself or his partner, any share or interest • in any work done by order of a Council or in any contract with or under or by or on behalf of a Council. There are several other clauses of section 16{1), but it is unnecessary to refer to them. c\n\nAs we have already indicated, corresponding provisions dealing with disqualifications contained in similar municipal Acts refer to 'employment' in terms. By wa'] of illustration, we may refer to section 12(2) (b) of the Bombay Municipal Boroughs Act, 1925 (No. 18 of 1925); it provides that no person who, save as hereinafter provided, has directly or indirectly, by himself or his partner, any share or interest in any work done by order of a Municipality or in any contract or employment with or under or by or on behalf of a Municipality, may be a Councillor of such Municipality, Similarly, the Bombay Provincial Municipal Corporations Act, 1949 (No. 59 of 1949) provides by section 10(1) (f) that a person shall be disqualified for being elected and for being a Councillor if such person has directly or indirectly, by himself or his partner, any share or interest in any contract or employment with, by or on behalf of the Corporation.\n\nIt would, we think, be unreasonable to hold that mere relationship of a person with an employee of the Municipal Committee justifies the inference that such a person has interest, direct or indirect, in the employment under the Municipal Commitee.\n\nIn the circumstances of this case, what is proved is the mere relationship between the appellant and his son who is the employee of the Municipal Committee; and on that relationship the High Court has based its conclusion that the appellant is disqualified under s. 15(1) of the Act. We are satisfied that this conclusion is erroneous in law. --\n\nThe result is, the appeal is allowed, the order passed by the High Court is set aside, and the declaration granted by the High Court that respondent No. 1 is duly elected from Ward No. 17 is reversed. Respondent No. 1 should pay the costs of the appellant throughout.\n\n' -'.\n\nH Appealallo wed.\n\nM10Sup.CIJ66-9", "total_entities": 48, "entities": [{"text": "F\n\nGULAM YASIN KHAN", "label": "PETITIONER", "start_char": 3, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "F\n\nGULAM YASIN KHAN", "offset_not_found": false}}, {"text": "SURI SAHEBRAO YESHWANTRAO WALASKAR & ORS", "label": "RESPONDENT", "start_char": 24, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "SURI SAHEBRAO YESHWANTRAO WALASKAR & ORS", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 87, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 118, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 130, "end_char": 141, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 144, "end_char": 156, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "P. SATYANARAYANA RAJU, JJ.", "label": "JUDGE", "start_char": 161, "end_char": 187, "source": "metadata", "metadata": {"canonical_name": "P. SATYANARAYANA RAJU", "offset_not_found": false}}, {"text": "Bernr Municipalities Act, 1922", "label": "STATUTE", "start_char": 778, "end_char": 808, "source": "regex", "metadata": {}}, {"text": "s. 15", "label": "PROVISION", "start_char": 1746, "end_char": 1751, "source": "regex", "metadata": {"linked_statute_text": "Bernr Municipalities Act, 1922", "statute": "Bernr Municipalities Act, 1922"}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 2563, "end_char": 2577, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad and A. G. Ratnaparkhl, for the appellant."}}, {"text": "A. G. Ratnaparkhl", "label": "LAWYER", "start_char": 2582, "end_char": 2599, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad and A. G. Ratnaparkhl, for the appellant."}}, {"text": "K. L. Gauba", "label": "LAWYER", "start_char": 2621, "end_char": 2632, "source": "ner", "metadata": {"in_sentence": "K. L. Gauba, D. D. Verma, S. S. Khanduja and Ganpat Ral, ,4 for the respondents."}}, {"text": "D. D. Verma", "label": "LAWYER", "start_char": 2634, "end_char": 2645, "source": "ner", "metadata": {"in_sentence": "K. L. Gauba, D. D. Verma, S. S. Khanduja and Ganpat Ral, ,4 for the respondents."}}, {"text": "S. S. Khanduja", "label": "LAWYER", "start_char": 2647, "end_char": 2661, "source": "ner", "metadata": {"in_sentence": "K. L. Gauba, D. D. Verma, S. S. Khanduja and Ganpat Ral, ,4 for the respondents."}}, {"text": "Ganpat Ral", "label": "LAWYER", "start_char": 2666, "end_char": 2676, "source": "ner", "metadata": {"in_sentence": "K. L. Gauba, D. D. Verma, S. S. Khanduja and Ganpat Ral, ,4 for the respondents."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 2748, "end_char": 2762, "source": "ner", "metadata": {"in_sentence": "H The Judgment of the Court was delivered by Gajendragadkar, C. J. The appellant, Gulam Yasin Khan, and respondent No. !,"}}, {"text": "Gulam Yasin Khan", "label": "RESPONDENT", "start_char": 2785, "end_char": 2801, "source": "ner", "metadata": {"in_sentence": "H The Judgment of the Court was delivered by Gajendragadkar, C. J. The appellant, Gulam Yasin Khan, and respondent No. !,", "canonical_name": "F\n\nGULAM YASIN KHAN"}}, {"text": "Sahebrao Yeshwantrao Walaskar", "label": "RESPONDENT", "start_char": 2825, "end_char": 2854, "source": "ner", "metadata": {"in_sentence": "Sahebrao Yeshwantrao Walaskar, were candi-\n\nSUPREME COURT REPORTS\n\n[1966) 3 S.C.R.\n\ndates for election as members to the Municipal Committee, Malkapur, District Buldana, from Ward No."}}, {"text": "Khalildad Khan", "label": "OTHER_PERSON", "start_char": 3393, "end_char": 3407, "source": "ner", "metadata": {"in_sentence": "He alleged that the appellant's son Khalildad Khan was a Moharir on Octroi Naka employed by the Municipal Committee; as such, he was a servant of the Committee."}}, {"text": "section 15(1)", "label": "PROVISION", "start_char": 3745, "end_char": 3758, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Provinces and Berar Municipalitica Act, 1922", "label": "STATUTE", "start_char": 3766, "end_char": 3818, "source": "regex", "metadata": {}}, {"text": "18th March, 1964", "label": "DATE", "start_char": 4024, "end_char": 4040, "source": "ner", "metadata": {"in_sentence": "On the 18th March, 1964, the Supervising Officer over-ruled D the objection raised by respondent No."}}, {"text": "s. 15( I)", "label": "PROVISION", "start_char": 4170, "end_char": 4179, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces and Berar Municipalitica Act, 1922", "statute": "the Central Provinces and Berar Municipalitica Act, 1922"}}, {"text": "Articles 226 and 227", "label": "PROVISION", "start_char": 4308, "end_char": 4328, "source": "regex", "metadata": {"linked_statute_text": "the Central Provinces and Berar Municipalitica Act, 1922", "statute": "the Central Provinces and Berar Municipalitica Act, 1922"}}, {"text": "Bombay High Court (Nagpur Bench)", "label": "COURT", "start_char": 4360, "end_char": 4392, "source": "ner", "metadata": {"in_sentence": "173 of 1964 under Articles 226 and 227 of the Constitution before the Bombay High Court (Nagpur Bench) on the 3rd April, 1964."}}, {"text": "3rd April, 1964", "label": "DATE", "start_char": 4400, "end_char": 4415, "source": "ner", "metadata": {"in_sentence": "173 of 1964 under Articles 226 and 227 of the Constitution before the Bombay High Court (Nagpur Bench) on the 3rd April, 1964."}}, {"text": "s.15(1)", "label": "PROVISION", "start_char": 5156, "end_char": 5163, "source": "regex", "metadata": {"statute": null}}, {"text": "YAtlN KHAN l'. WALASKAR", "label": "JUDGE", "start_char": 5825, "end_char": 5848, "source": "ner", "metadata": {"in_sentence": "• ,~\n\nYAtlN KHAN l'."}}, {"text": "Setalvad", "label": "OTHER_PERSON", "start_char": 5910, "end_char": 5918, "source": "ner", "metadata": {"in_sentence": "WALASKAR (Gajt.tldragadkar, C./.) 341\n\nbeen argued before us by Mr .. Setalvad on bahalf of the appellant is that the High Court erred in law in holding that on the facts proved in this case, the appellant was disqualified for being nominated as member of the Municipal Committee under s. 15(1) of the Act."}}, {"text": "s. 15(1)", "label": "PROVISION", "start_char": 6126, "end_char": 6134, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15(1)", "label": "PROVISION", "start_char": 7479, "end_char": 7487, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 7614, "end_char": 7628, "source": "ner", "metadata": {"in_sentence": "The Act was passed in 1923 to make better provision for the organisation and administration of municipalities in Madhya Pradesh."}}, {"text": "section 15", "label": "PROVISION", "start_char": 7843, "end_char": 7853, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 15", "label": "PROVISION", "start_char": 7855, "end_char": 7865, "source": "regex", "metadata": {"statute": null}}, {"text": "Gauba", "label": "OTHER_PERSON", "start_char": 9414, "end_char": 9419, "source": "ner", "metadata": {"in_sentence": "Mr. Gauba for respondent No."}}, {"text": "section 15", "label": "PROVISION", "start_char": 10264, "end_char": 10274, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15(1)", "label": "PROVISION", "start_char": 10394, "end_char": 10402, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 11236, "end_char": 11241, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(1)", "label": "PROVISION", "start_char": 12230, "end_char": 12243, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15(1)", "label": "PROVISION", "start_char": 12305, "end_char": 12313, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(1)", "label": "PROVISION", "start_char": 12326, "end_char": 12339, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 12723, "end_char": 12733, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(2)", "label": "PROVISION", "start_char": 12976, "end_char": 12989, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Municipal Boroughs Act, 1925", "label": "STATUTE", "start_char": 13001, "end_char": 13036, "source": "regex", "metadata": {}}, {"text": "Bombay Provincial Municipal Corporations Act, 1949", "label": "STATUTE", "start_char": 13380, "end_char": 13430, "source": "regex", "metadata": {}}, {"text": "section 10(1)", "label": "PROVISION", "start_char": 13460, "end_char": 13473, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Provincial Municipal Corporations Act, 1949", "statute": "the Bombay Provincial Municipal Corporations Act, 1949"}}, {"text": "s. 15(1)", "label": "PROVISION", "start_char": 14236, "end_char": 14244, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Provincial Municipal Corporations Act, 1949", "statute": "the Bombay Provincial Municipal Corporations Act, 1949"}}, {"text": "Appealallo", "label": "WITNESS", "start_char": 14598, "end_char": 14608, "source": "ner", "metadata": {"in_sentence": "H Appealallo wed.\n\nM10Sup."}}]}
{"document_id": "1966_3_344_351_EN", "year": 1966, "text": "TIIE STATE OF BIHAR\n\nRAMBALAK SINGH AND OTHERS\n\nJanuary 17, 1966\n\n[P.B. GAJF.NDRAGADKAR, C. J., J. C. SnAH, S. M. S1KRI,\n\nV. RAMASWAMI AND P. SATYANARAYANA RAJU, JJ.]\n\nConstitu1ion of India, Art. 226,-Habeas Corpus proceedingr-wliether Jligh l'our1 has jurisdiction to grant interim bail where detention is under R. 30. Defence of India Rules, 1962.\n\nThe respondent, who was ordered to be detained under Rule 30 of the Defence of India Rules, 1962, filed a petition in the High Court for a writ of habeas corpus. The High Court passed an order releasing the respondent on interim bail.\n\nIn the appeal to this Court against the said order, it was contended, Inter a/la, on behalf of the appellant slate that although ordinarily tho High Court may have juri•diction to graat interim bail in habeas corpus proceediDgi, this was not so in cases where a detenu is detained under R. 30; the policy underlying the enactment of the Defonce of hldia Act and the Rules and the object intended to be achieved by the detention which i• authorised under R. 30, clearly indicated that there were other valid considerations of paramount importance which di')tinguished the detention made under R. 30 and th•! altered the character of the proceedings initiated by or on behalf of the delenu under Art. 226; that ill sm:h proceedings the Court could not ignore the fact that the detention is purported to have been made in order to safeguard the Defence of India and Civil Defence, Public Safety, clc.; that the very object of making an order of detention against a c:tizen is to put an end to his prejudicial activities which are likely to affect one or the other of tho mallers of grave public importance specified by R. 30 and it would the'refore be illogical to hold that even before the Court comes to any decision as to the merits of the grounds on which the order of detention is challenged, it would be open to the Court to pass an interim order of bail; that furthermore any order of bail pa.<sed in such proceedings would not be interim but would be final and this also distinguished cases of this character from other habeas corpus proceedings.\n\nHELD : In dealing with habea.r corpus petitions under Art. 226 where orders of detention passed under R. 30 are challenged the High Conn has jurisdiction to grant bail, but the exercise of the said jurisdiction is inevi1ably circumc; crihed by the considerations which are special to such proceedings and which have relevctnce to the object which ia intended to be served by orders of detention properly and validly passed under the said Rules. (351 DJ\n\nSpecial Reference No. I of 1964 (1965] I S.C.R. 413; S1a1e of Ori.r.ra\n\nv. Madan Gopa/ Rung/a and others, (1952] S.C.R. 28; referred to.\n\nIf on proof of certain conditions or grounds it is oocn to the High Court to set aside the order of detention made under R. 30 and direct the release of the detenu. then it cannot be held that in a proper case II the Hieh Court has no iurkdiction to make an interim order f?ivin'! the detenu the relief which the High C.curt would be entitled to give him at the end of the proceedings. [348 CJ\n\n\"')',_.\n\n• _..\n\nB!HAR v. RAMBALAK (Gajendraxadkar, C.J.) 345\n\nIt cannot also be said that the jurisdiction of the High Court to pass interim auxiliary orders under Art. 226 is taken away by necessary implication when the High Court is dealing with habeas corpus petitions in relation to orders of detention passed under R. 30. [348 G] It is only when the High Court is satisfied that prima facie thore is something patently illegal in the order of detention that an order for bail would be passed.\n\nThe jurisdiction of the High Court to pass an interim order does not depend upon the nature of the order but its authority to give interim relief to a party which is auxiliary to the main relief to which the party would be enhtled if he succeeds in his petition. [349 E]\n\nThe jurisdiction of the High Court to grant relief to tho detenu in such proceedings is very narrow and very limited and that being so, if the Court takes the view that prima facie the allegations in a petition disclose a serious defect in the order of detention which would justify the release of the detenu, the wiser and the more sensible and reasonable course to adopt would invariably be to expedite the hearing of the writ petition and deal with the merits without any delay. [350 A-Bl If an order of bail is made by the High Court without a full trial of the issues involved merely on prima facie opinion formed by it, tho said order would be open to the challenge that is the result of improper exercise of jurisdiction.\n\nIt is essential to bear in mind the distinction between the existence of jurisdiction and its proper exercise.\n\nImproper exercise of jurisdiction in such matters must necessarily be avoided by the courts in dealing with applications of this character.\n\n[351 CJ\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 200 of 1965.\n\nAppeal by special leave from the judgment and order dated November 24, 1965 of the Patna High Court in Criminal W.J.C. No. 126 of 1965.\n\nLal Narain Sinha, Advocate-General, Bihar, Bajarang Sahai, and S. P. Varma, for the appellant.\n\nD. Goburdhan and G. N. Sinha, for respondent No. l.\n\nC. K. Daphtary, Attorney-General, and B. R. G. K. Achar for intervener.\n\nThe Judgment of the Court was delivered by\n\nGajendragadkar, C. J, This appeal by special leave is directed against the order passed by the Patna High Court ordering that the detenu Rambalak Singh be released on bail of Rs. 500 with two sureties of Rs. 250 each to the satisfaction of the Registrar of the High Court. The order further mentions that Mr. Girish Nandan Sinha who appeared for the detenu had given an undertaking to the Court that during the pendency of the proceedings when the petitioner is on bail, the petitioner will not indulge in any prejudicial activity or commit any prejudicial act. Mr. Lal Narain Sinha, the Advocate-General of Bihar, has urged on behalf of the appellant, the State of Bihar, that the order under appeal is without\n\nSUPRBMI! COURT\n\nREPORTS\n\n[1966] 3 S.C.R.\n\n.1urisdiction, and that raises an important question of Jaw as to whether while entertaining a habeas corpus petition under Art. 226 of the Constitution filed on behalf of a detenu who has been detained under Rule 30 of the Defence of India Rules (hereinafter called the \"Rules\"), the High Court has jurisdiction to release the detenu on bail pending the final disposal of the said habeas corpus petition.\n\nThe learned Advocate-General stated at the outset that the appellant was not keen on obtaining the reversal of the order of bail which is under appeal; he urgued that the appellant wanted the point of Jaw to be decided, because it is necessary that the true legal position in this matter should not be in doubt. That is why we do not propose to deal with the facts leading to the habeas corpus petition on behalf of Rambalak Singh and will not consider the propriety, or the reasonableness of the order under appeal.\n\nIt is true, as the learned Advocate-General contends, that one rarely comes across a case where the High Court has purported to exercise its jurisdiction under Art. 226 and released a detenu on bail where the order of detention has been passed under R. 30 of the Rules; but that by itself, can afford no assistance in dealing with the question of jurisdiction raised by the present appeal.\n\nThe learned Advoatc-General has fairly invited our attention to the observations recently made by this Court in Special Reference No. 1 of 1964Ct>, which are relevant for the purpose of dealing with the present appeal.\n\nIn that case, the Legislative Assembly of the State of Uttar Pradesh had committed Keshav Singh, who was not one of its members, to prison for its contempt. Keshav Singh had then moved the Allahabad High Court, Lucknow Bench, under Art. 226 of the Constitution ands. 491 of the Code of Criminal Procedure, challenging his committal as being in breach of his fundamental rights.\n\nHe had also prayed for interim bail. The learned Judges who entertained his petition admitted him to bail; and one of the points which arose for decision before this Court in the Special Reference was whether the order passed by the High Court admitting Keshav Singh to bail was without jurisdiction.\n\nMr. Seervai, who had appeared for the U.P. Assembly, had strenuously contended that the order passed by the High Court admitting Keshav Singh to bail was without jurisdiction, and in support of his contention, he had relied upon the English practice which seems to recognise that in regard to habeas corpus proceedings commenced against orders of commitment passed by the House of Commons on the ground of its contempt, bail is not granted by courts. This argument, however, was rejected by this Court, because this Court took the view that \"if Art. 226 confers jurisdiction on the Court to deal with the validity of the order of commit-\n\n(!) (1965] I S.C.R. 413.\n\n- l. ,\n\n.......\n\n• '\n\nBllJAR v. RAMBALAK (Gajendragadkar, C.J.) 347\n\nment even though the commitment has been ordered by the House, how can it be said that the Court has no jurisdiction to make an interim order in such proceedings?\" (p. 498). Reference was also made to an earlier decision of this Court in the State of Orissa\n\nv. Madan Gopal Rungta and Othersf.IJ, where it was ruled that an interim relief can be granted only in aid of, and as auxiliary to, the main relief which may be available to the party on final deternunation of his rights in a suit or proceeding.\n\nIt is clear that-this view proceeded on the well-recognised principle that if jurisdiction is conferred by a statute upon a Court, the conferment of jurisdiction implies the conferment of the power of doing all such acts, or employing such means, as are essentially necessary to its execution<2J.\n\nHaving thus rejected the contention raised by Mr. Seervai, this Court took the precaution of adding that it was not concerned to enquire whether the order admitting Keshav Singh to bail was proper and reasonable or not; all that this court was then concerned to consider was whether the said order was without jurisdiction, and on this point the opinion expressed by this Court was that in passing the order of interim bail, the High Court cannot be said to have exceeded its jurisdiction.\n\nThe learned Advocate-General does not dispute the correctness of these observations. He, however, argues that this principle cannot be invoked in cases where a detenu is detained under R. 30 of the Rules. The policy underlying the enactment of the Defence of India Act and the Rules, and the object intended to be achieved by the detention which is authorised under R. 30, clearly indicate that there are other valid considerations of paramount importance which distinguish the detention made under R. 30 and that alters the character of the proceedings initiated by or on behalf of the detenu under Art. 226. It is conceded that even in regard to orders of detention passed under R. 30, it would be competent to the High Court to order release of the detenu if the High Court is satisfied that the impugned order has been passed ma/a fide.\n\nThere is also no doubt that the order of detention can be set aside if it appears to the High Court that on the face of it, it i:; invalid, as for instance, when it appears to the High Court that the face of the order shows that it has been passed by an authority not empowered to pass it.\n\nBut the argument is that in dealing with the question as to whether the High Court can grant interim bail to a detenu in habeas corpus proceedings commenced on his behalf under Art. 226, the Court cannot ignore the fact that the detention purports to have been made in order to safeguard the defence of India and civil defence, public safety, maintenance of public order, India's relations with foreign powers, maintenance of peaceful conditions in any part of India, efficient conduct of military operations or the maintenance of\n\n(I) [1952] S.C.R. 28.\n\n(2) Muwell OD Interpretation or Statute• 11th ed., p. 350.\n\nSUPREME COURT\n\nREPORTS\n\n( 1966] 3 S.C.R.\n\nsupplies and services essential to the life of the community. The very object of making an order of detention against a citizen is to put an end to his prejudicial activities which are likely to affect one or the other of the matters of grave public importance specified by R. 30, and so, it would be illogical to hold that even before the Court comes to any decision as to the merits of the grounds on which the order of detention is challenged, it would be open to the Court to pass an interim order of bail; and that, it is urged, distinguishes habeas corpus proceedings in relation to orders of detention passed under R. 30 of the Rules.\n\nWe arc not impressed by this argument. If on proof of certain conditions or grounds it is open to the High Court to set aside the order of detention made under R. 30 of the Rules, and direct the release of the detcnu, we do not sec how it would be possible to hold that in a proper case, the High Court has no jurisdiction to\n\nmake an interim order giving the detrnu the relief which the High Court would be entitled to give him at the end of the proceedings.\n\nThe general principle on which the obser, ations of this C our! were based in the Special Reference would apply as much to the habeas rorpus proceedings commenced on behalf of a detenu detained under R. 30 of the Rules as to any other habeas corpus proceedings.\n\nIf the Court has jurisdiction to give the main relief to the deteu at the end of the proceedings, on principle and in theory, it is not easy to understand why the Court cannot give interim relief to the detenu pending the final disposal of his writ petition. The interim relief which can be granted in habeas corpus proceedings must no doubt be in aid of, and auxiliary to, the main relief. It cannot be urged that releasing a detenu on bail is not in aid of, or auxiliary to the main relief for which a claim is made on his behalf in the writ petition.\n\nIt is true that in dealing with the question as to whether interim bail should be granted to the detenu, the Court would naturally take into account the special objects which are intended to be achieved by orders of detention passed under R. 30.\n\nBut we are dealing with the bare question of jurisdiction and arc not concerned with the propriety or the reasonableness of any given order. Considering the 4ucstion as a hare question of jurisdiction, we arc reluctant to hold that the jurisdiction of the High Court to pass interim auxiliary orders under Art. 226 of the Constitution can be said to have been taken away by necessary implication when the High Court is dealing with habeas corpus petitions in relation to orders of detention passed under R. 30 of the Rules.\n\n-;-~ It is, however, urged by the learned Advocate-General that the order of bail in the present proceedings and indeed any order of bail passed in such proceedings would not be interim but would be final; and that, it is pointed out, distinguishes cases of this character from other cases of ha/:eas corpus petitions. The argument is 1hat if a person is convicted and he seeks to challenge the legality\n\n• It '\n\n- 1 ,\n\nBIHAR v. RAMBALAK (Gajendragadkar, C.J.) 349\n\nof the conviction by habeas corpus proceedings under Art. 226, the interim bail would be interim in the sense that if the proceedings fail, the person concerned will have to return to jail and run out the sentence imposed on him.\n\nReverting to the case of Keshav Singh, it was urged that if the writ petition filed by Keshav Singh had failed, he would have been compelled to return to jail and run out the sentence pronounced on him by the U.P. Legislative Assembly.\n\nThe cases in regard to detention effected by R. 30, however, stand on a different footing. There is no period imposed by the orders of detention:; they can be renewed from time to time as authorised by the respective relevant Rules, and the object of making C the order is to prevent the commission of prejudicial acts of the detenu. In such a case, if the writ petition ultimately fails, it may be that the detenu returns to jails; but his return to jail under such circumstances is not comparable to the return to jail of the detenu who was convicted and who was allowed interim bail in proceedings by which he challenged the legality of his conviction.\n\nThis argument also is not well-founded. It is obvious that when the High Court releases a detenu on bail pending the final disposal of his habeas corpus petition, the High Court will no doubt take all the relevant facts into account and it is only if and when the High Court is satisfied that prima facie, there is something patently illegal in the order of detention that an order for bail would be passed. The jurisdiction of the High Court to pass an interim order does not depend upon the nature of the order, but upon its authority to give interim relief to a party which is auxiliary to the main relief to which the party would be entitled if it succeeds in its petition. Therefore, considered as a mere proposition of law, we see no reason to accept the argument of the learned Advocate-General that the principle enunciated by this Court in the Special Reference has no application to habeas corpus petitions filed under Art. 226 in relation to orders of detention passed under R. 30 of the Rules.\n\nHaving thus rejected the main argument urged by the learned Advocate-General, we must hasten to emphasise the fact that though we have no hesitation in affirming the jurisdiction of the High Court in granting interim relief by way of bail to a detenu who has been detained under R. 30 of the Rules, there are certain inexorable considerations which are relevant to proceedings of this character and which inevitably circnmscribe the exercise of the jurisdiction of the High Court to pass interim orders granting bail to the detenu. There is not doubt that the facts on which the subjective satisfaction of the detaining authority is based, are not justiciable, and so, it is not open to the High Court to enquire whether the impugned order of detention is justified on facts or\n\nSUPREME OOURT REPORTS\n\n(1966] 3 S.C.R.\n\nnot. The jurisdiction of the High Court to grant relief to the detenu in such proceedings is very narrow and very limited. That being so, if the High Court takes the view that prima facie, the allegations made in the writ petition disclose a serious defect in the order of detention which would justify the release of the detenu, the wiser and the more sensible and reasonable course to adopt would invariably be to expedite the hearing of the writ petition and deal with the merits without any delay. Take the case where ma/a jides are alleged in respect of an order of detention. It is difficult, if not impossible, for the Court to come to any conclusion, even prima facie, about the ma/a jides alleged, unless a return is filed by the\n\nState. Just as it is not unlikely that the High Courts may come across cases where orders of detention are passed ma/a fide, it is also not unlikely that allegations . of ma/a fides arc made light heartedly or without justification; and so, judicial approach necessarily postulates that no conclusion can be reached, even prima facie, as to ma/a jides unless the State is given a chance to file its return and state its case in respect of the said allegations; and this emphasises the fact that even in regard to a challenge to the validity of an order of detention on the ground that it is passed ma/a.fide, It would not be safe, sound or reasonable to make an interim order on the prima facie provisional conclusion that there may be some substance in the allegations of ma/a jides. What is true about ma/a fides is equally true about other infirmities on which an order of detention may be challenged by the detenu. That is why the limitation on the jurisdiction of the Court to grant relief to the detenus who have been detained under R. 30 of the Rules, inevitably introduce a corresponding limitation on the power of the Court to grant interim bail.\n\nIn dealing with writ petitions of this character, the Court has naturally to bear in mind the object which is intended to be served by the orders of detention. It is no doubt true that a detenu is detained without a trial; and so, the courts woutd inevitably be anxious to protect the individual liberty of the citizen on grounds which are justiciable and within the limits of their jurisdition. But in upholding the claim for individual liberty within the limits permitted by law, it would be unwise to ignore the object which the orders of detention arc intended to serve. An unwise decision granting bail to a party may lead to consequences which are prejudicial to the interests of the community at large; and that is a factor which must be duly weighed by the High Court before it decides to grant bail to a detcnu in such proceedings. We are free to confess that we have not come across cases where bail has been granted in habeas corpU3 proceedings directed against orders of detention under R. 30 of the Rules, and we apprehend that the reluctance of the courts to pass orders of bail in such proccedinp is obviously based on the fact that they are fully conscious of the\n\nA -\n\nB!HAR v. RAMBALAK (Gajendragadkar, C.J.) 351\n\ndifficulties-legal and constitutional, and of the other risks involved in making such orders. Attempts are always made by the courts to deal with such applications expeditiously; and in actual practice, it would be very difficult to come across a case where without a full enquiry and trial of the ground on which the order of detention is challenged by the detenu, it would be reasonably possible or permissible to the Court to grant bail on prima facie conclusion reached by it at an earlier stage of the proceedings.\n\nIf an order of bail is made by the Court without a full trial of the issues involved merely on prima facie opinion formed by the High Court, the said order would be open to the challenge that it is the result of improper exercise of jurisdiction. It is essential to bear in mind the distinction between the existence of jurisdiction and its proper exercise. Improper exercise of jurisdiction in such matters must necessarily be avoided by the courts in dealing with applications of this character. Therefore, on the point raised by the learned Advocate-General in the present appeal, our conclusion is that in dealing with habeas c.orpus petitions under Art. 226 of the Constitution where orders of detention passed under R. 30 of tho Rules are challenged, the High Court has jurisdiction to grant bail, but the exercise of the said jurisdiction is inevitably circumscribed by the considerations which are special to such proceedings and which have relevance to the object which is intended to be served by orders of detention properly and validly passed under the said Rules.\n\nWe have already indicated that the learned Advocate-General has fairly stated that the appellant has brought the present appeal to this Court not for the purpose of challenging the correctness, propriety or reasonableness of the order under appeal, but for the purpose of getting a decision from this Court on the important question of jurisdiction raised by the said order. We do not, therefore propose to consider the question as to whether the order under appeal is proper, reasonable or valid.\n\nThe result is, the appeal fails and is dismissed.\n\nAppeal dismissed.", "total_entities": 45, "entities": [{"text": "TIIE STATE OF BIHAR", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF BIHAR", "offset_not_found": false}}, {"text": "RAMBALAK SINGH AND OTHERS", "label": "RESPONDENT", "start_char": 21, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "RAMBALAK SINGH AND OTHERS", "offset_not_found": false}}, {"text": "January 17, 1966", "label": "DATE", "start_char": 48, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "TIIE STATE OF BIHAR\n\nRAMBALAK SINGH AND OTHERS\n\nJanuary 17, 1966\n\n[P.B. GAJF.NDRAGADKAR, C. J., J. C. SnAH, S. M. S1KRI,\n\nV. RAMASWAMI AND P. SATYANARAYANA RAJU, JJ.]"}}, {"text": "S1K", "label": "PROVISION", "start_char": 114, "end_char": 117, "source": "regex", "metadata": {"statute": null}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 122, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "P. SATYANARAYANA RAJU, JJ.", "label": "JUDGE", "start_char": 139, "end_char": 165, "source": "metadata", "metadata": {"canonical_name": "P. SATYANARAYANA RAJU", "offset_not_found": false}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 191, "end_char": 199, "source": "regex", "metadata": {"statute": null}}, {"text": "Defence of India Rules, 1962", "label": "STATUTE", "start_char": 320, "end_char": 348, "source": "regex", "metadata": {}}, {"text": "Defence of India Rules, 1962", "label": "STATUTE", "start_char": 419, "end_char": 447, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1281, "end_char": 1289, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Rules, 1962", "statute": "the Defence of India Rules, 1962"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2194, "end_char": 2202, "source": "regex", "metadata": {"statute": null}}, {"text": "S1", "label": "PROVISION", "start_char": 2647, "end_char": 2649, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 3291, "end_char": 3299, "source": "regex", "metadata": {"statute": null}}, {"text": "Lal Narain Sinha", "label": "PETITIONER", "start_char": 5095, "end_char": 5111, "source": "ner", "metadata": {"in_sentence": "Lal Narain Sinha, Advocate-General, Bihar, Bajarang Sahai, and S. P. Varma, for the appellant.", "canonical_name": "Lal Narain Sinha"}}, {"text": "Bajarang Sahai", "label": "LAWYER", "start_char": 5138, "end_char": 5152, "source": "ner", "metadata": {"in_sentence": "Lal Narain Sinha, Advocate-General, Bihar, Bajarang Sahai, and S. P. Varma, for the appellant."}}, {"text": "S. P. Varma", "label": "LAWYER", "start_char": 5158, "end_char": 5169, "source": "ner", "metadata": {"in_sentence": "Lal Narain Sinha, Advocate-General, Bihar, Bajarang Sahai, and S. P. Varma, for the appellant."}}, {"text": "D. Goburdhan", "label": "LAWYER", "start_char": 5191, "end_char": 5203, "source": "ner", "metadata": {"in_sentence": "D. Goburdhan and G. N. Sinha, for respondent No."}}, {"text": "G. N. Sinha", "label": "LAWYER", "start_char": 5208, "end_char": 5219, "source": "ner", "metadata": {"in_sentence": "D. Goburdhan and G. N. Sinha, for respondent No."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 5244, "end_char": 5258, "source": "ner", "metadata": {"in_sentence": "l.\n\nC. K. Daphtary, Attorney-General, and B. R. G. K. Achar for intervener."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 5282, "end_char": 5299, "source": "ner", "metadata": {"in_sentence": "l.\n\nC. K. Daphtary, Attorney-General, and B. R. G. K. Achar for intervener."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 5361, "end_char": 5375, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar, C. J, This appeal by special leave is directed against the order passed by the Patna High Court ordering that the detenu Rambalak Singh be released on bail of Rs.", "canonical_name": "P.B. GAJENDRAGADKAR*"}}, {"text": "Patna High Court", "label": "COURT", "start_char": 5456, "end_char": 5472, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar, C. J, This appeal by special leave is directed against the order passed by the Patna High Court ordering that the detenu Rambalak Singh be released on bail of Rs."}}, {"text": "Rambalak Singh", "label": "RESPONDENT", "start_char": 5498, "end_char": 5512, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar, C. J, This appeal by special leave is directed against the order passed by the Patna High Court ordering that the detenu Rambalak Singh be released on bail of Rs.", "canonical_name": "RAMBALAK SINGH AND OTHERS"}}, {"text": "Girish Nandan Sinha", "label": "OTHER_PERSON", "start_char": 5670, "end_char": 5689, "source": "ner", "metadata": {"in_sentence": "The order further mentions that Mr. Girish Nandan Sinha who appeared for the detenu had given an undertaking to the Court that during the pendency of the proceedings when the petitioner is on bail, the petitioner will not indulge in any prejudicial activity or commit any prejudicial act."}}, {"text": "Lal Narain Sinha", "label": "PETITIONER", "start_char": 5927, "end_char": 5943, "source": "ner", "metadata": {"in_sentence": "Mr. Lal Narain Sinha, the Advocate-General of Bihar, has urged on behalf of the appellant, the State of Bihar, that the order under appeal is without\n\nSUPRBMI!", "canonical_name": "Lal Narain Sinha"}}, {"text": "Bihar", "label": "GPE", "start_char": 5969, "end_char": 5974, "source": "ner", "metadata": {"in_sentence": "Mr. Lal Narain Sinha, the Advocate-General of Bihar, has urged on behalf of the appellant, the State of Bihar, that the order under appeal is without\n\nSUPRBMI!"}}, {"text": "State of Bihar", "label": "ORG", "start_char": 6018, "end_char": 6032, "source": "ner", "metadata": {"in_sentence": "Mr. Lal Narain Sinha, the Advocate-General of Bihar, has urged on behalf of the appellant, the State of Bihar, that the order under appeal is without\n\nSUPRBMI!"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 6240, "end_char": 6248, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 7201, "end_char": 7209, "source": "regex", "metadata": {"statute": null}}, {"text": "Legislative Assembly of the State of Uttar Pradesh", "label": "ORG", "start_char": 7670, "end_char": 7720, "source": "ner", "metadata": {"in_sentence": "In that case, the Legislative Assembly of the State of Uttar Pradesh had committed Keshav Singh, who was not one of its members, to prison for its contempt."}}, {"text": "Keshav Singh", "label": "OTHER_PERSON", "start_char": 7735, "end_char": 7747, "source": "ner", "metadata": {"in_sentence": "In that case, the Legislative Assembly of the State of Uttar Pradesh had committed Keshav Singh, who was not one of its members, to prison for its contempt."}}, {"text": "Allahabad High Court, Lucknow Bench", "label": "COURT", "start_char": 7841, "end_char": 7876, "source": "ner", "metadata": {"in_sentence": "Keshav Singh had then moved the Allahabad High Court, Lucknow Bench, under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 7884, "end_char": 7892, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 7930, "end_char": 7956, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Seervai", "label": "OTHER_PERSON", "start_char": 8337, "end_char": 8344, "source": "ner", "metadata": {"in_sentence": "Mr. Seervai, who had appeared for the U.P. Assembly, had strenuously contended that the order passed by the High Court admitting Keshav Singh to bail was without jurisdiction, and in support of his contention, he had relied upon the English practice which seems to recognise that in regard to habeas corpus proceedings commenced against orders of commitment passed by the House of Commons on the ground of its contempt, bail is not granted by courts."}}, {"text": "U.P. Assembly", "label": "ORG", "start_char": 8371, "end_char": 8384, "source": "ner", "metadata": {"in_sentence": "Mr. Seervai, who had appeared for the U.P. Assembly, had strenuously contended that the order passed by the High Court admitting Keshav Singh to bail was without jurisdiction, and in support of his contention, he had relied upon the English practice which seems to recognise that in regard to habeas corpus proceedings commenced against orders of commitment passed by the House of Commons on the ground of its contempt, bail is not granted by courts."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 8878, "end_char": 8886, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 10962, "end_char": 10970, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 11672, "end_char": 11680, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 11798, "end_char": 11803, "source": "ner", "metadata": {"in_sentence": "226, the Court cannot ignore the fact that the detention purports to have been made in order to safeguard the defence of India and civil defence, public safety, maintenance of public order, India's relations with foreign powers, maintenance of peaceful conditions in any part of India, efficient conduct of military operations or the maintenance of\n\n(I) [1952] S.C.R. 28."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 14627, "end_char": 14635, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 15365, "end_char": 15373, "source": "regex", "metadata": {"statute": null}}, {"text": "U.P. Legislative Assembly", "label": "ORG", "start_char": 15752, "end_char": 15777, "source": "ner", "metadata": {"in_sentence": "Reverting to the case of Keshav Singh, it was urged that if the writ petition filed by Keshav Singh had failed, he would have been compelled to return to jail and run out the sentence pronounced on him by the U.P. Legislative Assembly."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 17366, "end_char": 17374, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 22567, "end_char": 22575, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_352_358_EN", "year": 1966, "text": "K. G. KHOSLA & CO.\n\nI'.\n\nDEPUTY COMMISSIONER o•· COMMERCIAL TAXES\n\nJanuary 18, 1966\n\n[P. B. GAJENDRAGADKAR, c. J., J. c. SHAH, s. M. SIKRI\n\nV. RAMASWAMI AND SATYASARAYA1'A RAJU, JJ.)\n\nCentral Sc.In Ta.t Act, 1956 (64 of 1956), s. 5(2)-Sai<r in tlu courSI of i1nport 1\"1t•a11in~ of.\n\nThe ap_pellant enlered into a contract wj1h the Direclor-General ot Civil Suphe\"· New Delhi far the supply of .xle bodies manufactured by 1t5 pnnc1pals 1n Belgium. -rhc goods 1,1, crc in:; pectctl on behalf of the\n\nbuyer~ in Beliun1 but under the contract they were liable to rejection after further in,; pe...:tion in India. In pur5uance of the contract the appellant supplied axlebodie• to the Southern Railway at Perambur and Mysore. 'fhe Joint Comn1l!rcial Tax ~)nicer Madras rejectt.-d the con. tention of the appellant th;, i, t the salel ere in the coure of import.\n\nHe held that the said sales \\Vere intra-State sales because the seller wa-; thlJ consignee of the good:; and the buyer h41.d reserved the right to reject the goods even afler their arriv; i( in lndi:i.\n\nHe made ;, in assessment under the Madras General Sale-; Tax Act in respect of 1he -; upplics at Pcr<unbur and another assmcnt under ihc- Central Sales rax Ac1 in respect of the supplies at Myo; orc. rhe ; ippellant tiled ;1ppealo; against the as.; e-; menl! but the Appellant Assitant Comn1bsioner rejected them. 'fhe Tribunal held that part of' the gooJ_, , ere sold in the course of import.\n\nAgaint the Tribunal's orders both parties file<l tv•o reviion:; each in the High Court.\n\nThe High Court allO\\\\ed the petitioni filed by the State and rejcc; eJ thoe\n\nfiled hy the asses, ee. It held that '\"before a sale c:in he s<iid to h;1\\'e occasioned the import it is nece .. -; ary that the S<1le c; hould have prcccc.led tho import\" and as the sale had not taken placl! at Belgium there \"-'<l'i no quc~ tion of sale occasioning the import of the good<:;.\n\nThe appellant then came to this C'-0urt by speci.:il leave.\n\nOn behalf of the re.; pondents two preliminary objection\" v.e-e r.liscd : ( 1) The appr.:llant had no£ complied with O.Xlll r. 2 of the Supreme Court Rules, 1950 before coming to this Court; (2) The appellant h; id filed only two appeal< in this Court whilo the High Court's judgment !..:overed four re\\'ision pctition'i.\n\nHELD : (i) 'lhe appellant had not filed a petition for certificale before the Madras High Court as required hy O.XllI r. 2 becau'ie of the view of that High Court that no c; uch petition lay in Revenue matters. There fore non-compliance wilh 0.Xlll r. 2 could he condoned.\n\n(ii) Two revisions were filed in the High Court by the •ppellont and two by the State in respect of tY.'O assessment orders and they were disposed of by a common judgn1ent. The subject matler of lhe four revisions were two assegsmcnts, one under the Madras General Sates Tax Act and the other under the Central Sal\"' Tax Act. The appellant was quite right in tiling two appeals before this Court. [356 B-D]\n\n\"(tii) Section 5(2) of the Central Sales Tax Act does not lay down any condilion that before a sa1e could be said to have occasil)fled import it i!\n\n,..\n\nA necessary that the sale should have preceded the import. Tho High Court wrongly held so. [358 D-E]\n\nTata Iron & Steel Co. Ltd. v. S. R. Sarkar, [1961] I S. C. R. 379, relied on. ·\n\nThe Cement Marketing Co. of India v. State of Mysore, [1963] 3 S.C.R. 777 State Trading Corporation of India v. State of Mysore, [1963] 3 S.C.R. 792 and Singareni Collieries Co, v. Commissioner of Commercial Taxes, Hyderabad, [1966] 2 S.C.R. 190, referred to.\n\n(iv) Jn the present case it was quite clear from the contract that it wa-s incidental to the contract that the axle-box bodies. would be manufactured in Belgium, inspected there, and imported into India for the consignee.\n\nMovement of goods from Belgium to India wa5 in -pursuance of the conditions of the contract between the assessee and the D!fector-General of Supplies. There was no possibility of those good• being diverted by the assessee for any other purpose. Consequently the saleg took place in the couroe of import of goods within •· 5(2) of the Act and were therefore exempt from taxation. [358 Fi\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 143 and 144 of 1965.\n\nAppeal by special leave from the judgment and order date August 16, 1963 of the Madras High Court in Tax Cases Nos. 100, 219, 220 and 225 of 1962.\n\nVeda Vyasa and K. K. Jain, for the appellant.\n\nE A. Ranganadham Chetty and A. V. Rangam, for the respon\n\ndent.\n\nThe Judgment of the Court was delivered by\n\nSlkri, J. These two appeals by special leave are directed against the judgment of the Madras High Court in Tax Cases Nos.\n\n100, 219, 220 and 225 of 1962, and involve the interpretation of s. 5(2) of the Central Sales Tax Act (64 of 1956)-hereinafter referred to as the Act. The relevant facts are these. The appellant K. G. Khosla & Co., hereinafter referred to as the assessee entered into a contract with the Director-General of Supplies and Disposal, New Delhi, for the supply of axle-box bodies. According to the contract the goods were to be manufactured in Belgium, and the D.G.I.S.D., London, or his representative, was to inspect the goods at the works of the manufacturers. He was to issue an inspection certificate. Another inspection by the Deputy Director of Inspections, Ministry of W.H. & S., Madras, was provided for in the contract. It was his duty to issue inspection notes on Form No. WSB.65 on receipt of a copy of the Inspection Certificate from the D.G.I.S.D. London and after verification and visual inspection. The goods were to be manufactured according to specifications by M/s La Brugeoies. ET. Nivelles, Belgium. Thee\n\nassessee was entitled to be paid 90 % after inspection and delivery of the stores to the consignee and the balance of 10% wa! payable on final acceptance by the consignee. In the case of deliveries on F.O:R. basis, the assessee was entitled to 90 % payment after inspection on proof of despatch and balance 10 % after receipt of stores by the consignees in good condition. The date of delivery was \"in 8 months ex-your principal's works from the date of receipt of order and the approved working drawings, i.e. delivery in India by 31-7-1957, or earlier.\" The assessee was entirely responsible for the execution of the contract. Clause 17(1) of the Contract provides:\n\n\"The Contractor is entirely responsible for the execution of the contract in all respects in accordance with the terms and conditions as specified in the A/T and the schedule annexed thereto. Any approval which the Inspector may have given in respect of the stores, materials or other particulars and the work or workmanship involved in the contract (whether with or without test carried out by the contractor's Inspector) shall not bind the purcha!er and notwithstanding any approval or acceptance given by the Inspector, it shall be lawful for the consignee or the stores on behalf of the Purchaser to reject the stores on arrival at the destination, if it is found that the stores supplied by the contractor are not in confirmity with the terms and conditions of the Contract in all respects.\"\n\nFurther, the assessee was responsible for the safe arrival of the goods at the destination. By an endorsement the D.G.l.S.D., London, was requested to issue pre-inspection delay reports regularly to all concerned, including the Railway Liaison Officer, C/o D.G.S. & D. Shahjahan Road, New Delhi. He was also requested to endorse copies of the Inspection Certificates to the Director of Inspection, Ministry of W.H. & S. Bombay. It is further found by the Sales Tax Appellate Tribunal that \"the Belgian manufacturers, after manufacture, consigned the goods to the appellants by ship under bills of lading in which the consignee was the appellants themselves. The goods were consigned to Madras Harbour, cleared by the appellant's own clearing agents and despatched for delivery to the buyers thereafter.\"\n\nIn pursuance of this contract, the asscssee supplied axle-box bodies of the value of Rs. 1,74,029.50 to the Southern Railway at Perambur Works and of the value of Rs. 1,32,987.75 to Southern Railway, Mysore. The Joint Commercial Tax Officer held that the former sales were liable to tax under the Madras General Sales Tax Act and the latter under the Central Sales Tax Act.\n\nHe rejected the contention of the asscssee that the sales were in the . course of import.\n\nHe held that \"there was no privily of contract\n\n• ' '\n\n1 ' .\n\n_.,\n\nA ,. ..\n\n~ ..\n\n/ •\n\nbetween the foreign seller and the Government for the goods ..\n\nThe goods were shi\\, ped only as the goods of the seller and intended for them. They were cleared as their own and delivered after clearance. The transaction is therefore one of intra-state sales. and not one in the course of import. The sale is completed only when the goods are delivered in this state and so it is not occasioning the import. It is also seen from the contract of sale that the terms of delivery are F.0.R. Madras. Again Cl. (1) of the contract says that any approval where the Inspector may have given in respect of stores materials or other particulars and the work or workmanship involved in the contract shall not bind the purchaser and notwithstanding any approval or acceptance given by the Inspector it shall be lawful for the consignee of the stores on behalf of the purchaser to reject the stores on arrival at the destination. It will be seen from the words underlined by me that the purchaser has reserved the right to reject the goods even though an inspection of the goods might have been made. So there is no force in the argument of the dealer that the goods were appropriated to the contract of sale.\"\n\nThe assessee filed two appeals but the Appellate Assistant Commissioner, agreeing with the Joint Commercial Tax Officer, rejected the appeals. The Appellate Tribunal on appeal held that the property in the goods had not passed on to the buyers even while the goods were with the Belgian manufacturers and that the sale by the appellants had not occasioned the imports. The Tribunal, however, accepted the contention of the assessee that sales. to the extent of Rs. 22,983 75 and Rs. !0,987.50 had taken place in the course of import as the goods had been appropriated to the contract while the goods were on the high seas.\n\nThe assessee then filed two revisions before the High Court and the Deputy Commissioner of Commercial Taxes, Madras filed two revisions challenging the deductions of the two sums of\n\nRs. 22,983 75 and Rs. 10,987 50. The High Court allowed the petitions filed by the State and dismissed the petitions filed by the assessee. It rejected the contention of the assessee that the property in the goods must be deemed to have passed at the stage when the goods were approved by the representative in the factory of the manufacturers at Balgium. The High Court further rejected the contention of the assessee that the sale by the assessee to the Government Department had occasioned the import on the ground that \"before a sale can be said to have occasioned the import, it is ncccs, ary that the sale should have preceded the import\", and as the sale had not taken place at Belgium there was no question of the sale occasioning the import of the goods.\n\nBefore we deal with the merits of the appeals, we must dispose of two preliminary objections raised by Mr. Ranganadham Chetty.\n\n-0n behalf of the respondents. Basing himself on Management of A Ilindusthan Commercial Bank Ltd. v. Bhagwan Dass(') he urged that the assessee should have filed an application for leave to appeal before the High Court before applying for special leave.\n\nWe see no force in this objection. It is common ground that the Madras High Court had at the relevant time consistently taken the view that no application for leave to appeal to Supreme Court lay before the High Court in matters involving revenue. In these circumstances we dispense with the requirement of Order XIII, r. 2 of the Supreme Court Rules, and overrule the objection. The second preliminary objection raised by him was that the assessec should have filed four appeals and not two appeals because there were four revision petitions before the High Court. We see no force in this objection also. Two revisions were filed by the assessce and two by the State in respect of two assessment orders and they were disposed of by one common judgment. The subject matter of the four revisions were two assessments, one under the Madras General Sales Tax Act and the other under the Central Sales Tax Act. In our opinion, the assessce was qtiitc right in filing two appeals before this Court.\n\nThe learned counsel for the assessce Mr. Ved Vyasa, raised two points before us : First that the 'ales were in the course of import within the meaning of s. 5(2) of the Act; and secondly that the property in the goods passed in Belgium and consequently the sales were outside the State within the meaning of art. 286(1) (a) of the Constitution. As we are of the opinion that the asscssce must succeed on the first point it will not be necessary to deal with the second point.\n\nSection 5(2) of the Central Sales Tax Act provides :\n\n\"5(2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India.\"\n\nSection 3 of the Act, which deals with inter-state trade and commerce may also be set out as it employs the same terminology and has been interpreted by this Court. S. 3 reads :\n\n\"A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the 'ale or purchase-\n\n(a) occasions the movement of goods from one State to another; or\n\n(I) (I965j 2 S.C.R. 265.\n\n~.\n\n(b) is effected by a transfer of documents of title to the goods during their movement from one State to another.\"\n\n~ , It is not necessary to set out the two Explanations to s. 3. •' It seems to us that the expression \"occasions the movement\n\n- -'\n\nB of goods\" occurring in s. 3(a) and s. 5(2) must have the same meaning. In Tata Iron and Steel Co. Ltd. Bombay v. S. R. Sarkar,(') Shah, J. speaking for the majority, interpreted s. 3 as follows:\n\n\"In our view, therefore, within clause (b) of section 3 are included sales in which property in the goods passes during the movement of the goods from one State to another by transfer of documents of title thereto: clause\n\n(a) of section 3 covers sales, other than those included in clause (b), in which the movement of goods from one State to another is the result of a covenant or incident of the contract of sale, and property in the goods passes in either State.\"\n\nThese observations of Shah, J., were cited with appreval by this Court in The Cement Marketing Co. of India v. The State of Mysore(2).\n\nThis case, it is true, was not dealing with the Central Sales Tax Act, but the Court was dealing with a similar question arising 1mder art. 286 of the Constitution, before its amendment. But the same Bench, in dealing with a case arising under the Act (The State Trading Corporation of India v. The State of Mysore<'>) again approved of the observations in Tata Iron and Steel Co. caseOl.\n\nSarkar, I., observed thus:\n\n\"The question then is, did the sales occasion the movement of cement from another State into Mysore within the meaning of the definition? In Tata Iron and Steel Co., Ltd. v. S . . R. Sarkar<'J it was held that a sale occasions the movement of goods from one State to another within section 3(a) of the central Sales Tax Act, when the movement \"is the result of a covenant or incident of the contract of sale.\" That the cement concerned in the disputed sales was actually moved from another State into Mysore is not denied. The respondents only contend that the movement was-not the result of a covenant in or an incident of the contract of sale.\"\n\nThis Court then, on the facts of the case, found that the movement of cement from another State into Mysore was the result of a covenant in the contract of sale or incident of such contract. This Court did not go into the question as to whether the property had\n\n(I) [1961] I S.C-R. 379 : II S.T.C. 655.\n\n\npassed before the movement of the goods or not, and this was be A cause according to the decision in Tata Iron and Steel Co. v. S. R.\n\nSarkarC'> it did not matter whether the property passed in one State or the other. Tata Iron & Steel Co.C 1> case was again followed by this Court in Singareni Collieries Co. v. Commissioner of Commercial Taxes, Hyderabad(').\n\nThe learned counsel for the respondent, Mr. A. Ranganadham Chetty, invited us to hold that the observations of Shah, J., in Tata Iron and Steel Co. {1) case were obiter, and to consider the question afresh.\n\nWe are unable to reopen the question at this stage. Shah, J., was interpreting s. 3 of the Act, and although the Court was principally concerned with the interpretation of s. 3{b), it was necessarv to consider the interpretation of s. 3{a) in order to arrive at the correct interpretation of s. 3(b). Further these observations were approved in The Cement Marketing Co. of India\n\nv. The State of Mysore('), The State Trading Corporation of !11dia,\n\nv. The State of Mysore(') and Singareni Collieries Co. v. Commissioner of Commercial Tax, Hyderabad(').\n\nIn the State Trading Corporation(•) case, in so far as the assessment for the assessment year 1957-58 was concerned, this Court applied the principles laid down in Tata Iron and Steel Co.(1) case. Accordingly we hold that the High Court was wrong in holding that before a sale could be said to have occasioned import it is necessary that the sale should have preceded the import.\n\nThe next question that arises is whether the movement of axle-box bodies from Belgium into Madras was the result of a covenant in the contract of sale or an incident of such contract.\n\nIt seems to us that it is quite clear from the contract that it was incidental to the contract that the axle-box bodies would be manufactured in Belgium, inspected there and imported into India for the consignee. Movement of goods from Belgium to India was in pursuance of the conditions of the contract between the assessee and the Director-General of Supplies. There was no possibility of these goods being diverted by the assessee for any other purpose.\n\nConsequently we hold that the sales took place in the course of import of goods within s. 5(2) of the Act, and are, therefore, exempt from taxation.\n\nIn the result the appeals are allowed, the judgment of the High Court reversed and the assessment orders quashed. The appellant will have his costs here and in the High Court. One set of hearing fee.\n\n----·---··-- (!) (1961) l S.C.R. 379: 11 S.T.C. 655.\n\n\nAppeals allowed.\n\n(2) (1966] 2 S.C.R. 190.\n\n(4) (1963] 3 S.C.R. 792: 14 S.T.C. 188.", "total_entities": 75, "entities": [{"text": "K. G. KHOSLA & CO", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "K. G. Khosla & Co.", "offset_not_found": false}}, {"text": "I'.\n\nDEPUTY COMMISSIONER o•· COMMERCIAL TAXES", "label": "RESPONDENT", "start_char": 20, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "DEPUTY COMMISSIONER OF COMMERCIAL TAXES", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 86, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 118, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "s. M. SIKRI", "label": "JUDGE", "start_char": 127, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 140, "end_char": 152, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "SATYASARAYA1'A RAJU, JJ.", "label": "JUDGE", "start_char": 157, "end_char": 181, "source": "metadata", "metadata": {"canonical_name": "P. SATYANARAYANA RAJU", "offset_not_found": false}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 227, "end_char": 234, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 602, "end_char": 607, "source": "ner", "metadata": {"in_sentence": "-rhc goods 1,1, crc in:; pectctl on behalf of the\n\nbuyer~ in Beliun1 but under the contract they were liable to rejection after further in,; pe...:tion in India."}}, {"text": "Perambur", "label": "GPE", "start_char": 699, "end_char": 707, "source": "ner", "metadata": {"in_sentence": "In pur5uance of the contract the appellant supplied axlebodie• to the Southern Railway at Perambur and Mysore. '"}}, {"text": "Mysore", "label": "GPE", "start_char": 712, "end_char": 718, "source": "ner", "metadata": {"in_sentence": "In pur5uance of the contract the appellant supplied axlebodie• to the Southern Railway at Perambur and Mysore. '"}}, {"text": "Belgium", "label": "GPE", "start_char": 1833, "end_char": 1840, "source": "ner", "metadata": {"in_sentence": "at Belgium there \"-'<l'i no quc~ tion of sale occasioning the import of the good<:;."}}, {"text": "Supreme Court Rules, 1950", "label": "STATUTE", "start_char": 2113, "end_char": 2138, "source": "regex", "metadata": {}}, {"text": "Madras High Court", "label": "COURT", "start_char": 2378, "end_char": 2395, "source": "ner", "metadata": {"in_sentence": "HELD : (i) 'lhe appellant had not filed a petition for certificale before the Madras High Court as required hy O.XllI r. 2 becau'ie of the view of that High Court that no c; uch petition lay in Revenue matters."}}, {"text": "Section 5(2)", "label": "PROVISION", "start_char": 2989, "end_char": 3001, "source": "regex", "metadata": {"linked_statute_text": "the Supreme Court Rules, 1950", "statute": "the Supreme Court Rules, 1950"}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 3009, "end_char": 3030, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "[1963] 3 S.C.R. 777", "label": "CASE_CITATION", "start_char": 3373, "end_char": 3392, "source": "regex", "metadata": {}}, {"text": "[1963] 3 S.C.R. 792", "label": "CASE_CITATION", "start_char": 3448, "end_char": 3467, "source": "regex", "metadata": {}}, {"text": "[1966] 2 S.C.R. 190", "label": "CASE_CITATION", "start_char": 3545, "end_char": 3564, "source": "regex", "metadata": {}}, {"text": "Veda Vyasa", "label": "OTHER_PERSON", "start_char": 4409, "end_char": 4419, "source": "ner", "metadata": {"in_sentence": "Veda Vyasa and K. K. Jain, for the appellant."}}, {"text": "K. K. Jain", "label": "OTHER_PERSON", "start_char": 4424, "end_char": 4434, "source": "ner", "metadata": {"in_sentence": "Veda Vyasa and K. K. Jain, for the appellant."}}, {"text": "E A. Ranganadham Chetty", "label": "LAWYER", "start_char": 4456, "end_char": 4479, "source": "ner", "metadata": {"in_sentence": "E A. Ranganadham Chetty and A. V. Rangam, for the respon\n\ndent."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 4484, "end_char": 4496, "source": "ner", "metadata": {"in_sentence": "E A. Ranganadham Chetty and A. V. Rangam, for the respon\n\ndent."}}, {"text": "Slkri", "label": "JUDGE", "start_char": 4565, "end_char": 4570, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSlkri, J. These two appeals by special leave are directed against the judgment of the Madras High Court in Tax Cases Nos."}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 4753, "end_char": 4760, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 4768, "end_char": 4789, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "K. G. Khosla & Co.", "label": "PETITIONER", "start_char": 4883, "end_char": 4901, "source": "ner", "metadata": {"in_sentence": "The appellant K. G. Khosla & Co., hereinafter referred to as the assessee entered into a contract with the Director-General of Supplies and Disposal, New Delhi, for the supply of axle-box bodies.", "canonical_name": "K. G. Khosla & Co."}}, {"text": "New Delhi", "label": "GPE", "start_char": 5019, "end_char": 5028, "source": "ner", "metadata": {"in_sentence": "The appellant K. G. Khosla & Co., hereinafter referred to as the assessee entered into a contract with the Director-General of Supplies and Disposal, New Delhi, for the supply of axle-box bodies."}}, {"text": "London", "label": "GPE", "start_char": 5157, "end_char": 5163, "source": "ner", "metadata": {"in_sentence": "According to the contract the goods were to be manufactured in Belgium, and the D.G.I.S.D., London, or his representative, was to inspect the goods at the works of the manufacturers."}}, {"text": "of W.H. & S., Madras", "label": "ORG", "start_char": 5358, "end_char": 5378, "source": "ner", "metadata": {"in_sentence": "Another inspection by the Deputy Director of Inspections, Ministry of W.H. & S., Madras, was provided for in the contract."}}, {"text": "D.G.I.S.D. London", "label": "ORG", "start_char": 5535, "end_char": 5552, "source": "ner", "metadata": {"in_sentence": "WSB.65 on receipt of a copy of the Inspection Certificate from the D.G.I.S.D. London and after verification and visual inspection."}}, {"text": "La Brugeoies", "label": "ORG", "start_char": 5668, "end_char": 5680, "source": "ner", "metadata": {"in_sentence": "The goods were to be manufactured according to specifications by M/s La Brugeoies."}}, {"text": "31-7-1957", "label": "DATE", "start_char": 6243, "end_char": 6252, "source": "ner", "metadata": {"in_sentence": "The date of delivery was \"in 8 months ex-your principal's works from the date of receipt of order and the approved working drawings, i.e. delivery in India by 31-7-1957, or earlier.\""}}, {"text": "Clause 17(1)", "label": "PROVISION", "start_char": 6340, "end_char": 6352, "source": "regex", "metadata": {"statute": null}}, {"text": "Ministry of W.H. & S. Bombay", "label": "ORG", "start_char": 7576, "end_char": 7604, "source": "ner", "metadata": {"in_sentence": "He was also requested to endorse copies of the Inspection Certificates to the Director of Inspection, Ministry of W.H. & S. Bombay."}}, {"text": "Sales Tax Appellate Tribunal", "label": "COURT", "start_char": 7633, "end_char": 7661, "source": "ner", "metadata": {"in_sentence": "It is further found by the Sales Tax Appellate Tribunal that \"the Belgian manufacturers, after manufacture, consigned the goods to the appellants by ship under bills of lading in which the consignee was the appellants themselves."}}, {"text": "Madras", "label": "GPE", "start_char": 7864, "end_char": 7870, "source": "ner", "metadata": {"in_sentence": "The goods were consigned to Madras Harbour, cleared by the appellant's own clearing agents and despatched for delivery to the buyers thereafter.\""}}, {"text": "Southern Railway", "label": "ORG", "start_char": 8091, "end_char": 8107, "source": "ner", "metadata": {"in_sentence": "1,74,029.50 to the Southern Railway at Perambur Works and of the value of Rs."}}, {"text": "Perambur Works", "label": "GPE", "start_char": 8111, "end_char": 8125, "source": "ner", "metadata": {"in_sentence": "1,74,029.50 to the Southern Railway at Perambur Works and of the value of Rs."}}, {"text": "Southern Railway, Mysore", "label": "ORG", "start_char": 8165, "end_char": 8189, "source": "ner", "metadata": {"in_sentence": "1,32,987.75 to Southern Railway, Mysore."}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 8334, "end_char": 8355, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Balgium", "label": "GPE", "start_char": 10891, "end_char": 10898, "source": "ner", "metadata": {"in_sentence": "It rejected the contention of the assessee that the property in the goods must be deemed to have passed at the stage when the goods were approved by the representative in the factory of the manufacturers at Balgium."}}, {"text": "Ranganadham Chetty", "label": "OTHER_PERSON", "start_char": 11416, "end_char": 11434, "source": "ner", "metadata": {"in_sentence": "Before we deal with the merits of the appeals, we must dispose of two preliminary objections raised by Mr. Ranganadham Chetty."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 11870, "end_char": 11883, "source": "ner", "metadata": {"in_sentence": "It is common ground that the Madras High Court had at the relevant time consistently taken the view that no application for leave to appeal to Supreme Court lay before the High Court in matters involving revenue."}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 12576, "end_char": 12597, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ved Vyasa", "label": "OTHER_PERSON", "start_char": 12728, "end_char": 12737, "source": "ner", "metadata": {"in_sentence": "The learned counsel for the assessce Mr. Ved Vyasa, raised two points before us : First that the 'ales were in the course of import within the meaning of s. 5(2) of the Act; and secondly that the property in the goods passed in Belgium and consequently the sales were outside the State within the meaning of art."}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 12841, "end_char": 12848, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 286(1)", "label": "PROVISION", "start_char": 12995, "end_char": 13006, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5(2)", "label": "PROVISION", "start_char": 13164, "end_char": 13176, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 13184, "end_char": 13205, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 3", "label": "PROVISION", "start_char": 13537, "end_char": 13546, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 3", "label": "PROVISION", "start_char": 13702, "end_char": 13706, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14120, "end_char": 14124, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(a)", "label": "PROVISION", "start_char": 14220, "end_char": 14227, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 14232, "end_char": 14239, "source": "regex", "metadata": {"statute": null}}, {"text": "Shah", "label": "JUDGE", "start_char": 14327, "end_char": 14331, "source": "ner", "metadata": {"in_sentence": "In Tata Iron and Steel Co. Ltd. Bombay v. S. R. Sarkar,(') Shah, J. speaking for the majority, interpreted s. 3 as follows:\n\n\"In our view, therefore, within clause (b) of section 3 are included sales in which property in the goods passes during the movement of the goods from one State to another by transfer of documents of title thereto: clause\n\n(a) of section 3 covers sales, other than those included in clause (b), in which the movement of goods from one State to another is the result of a covenant or incident of the contract of sale, and property in the goods passes in either State.\""}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14375, "end_char": 14379, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 14439, "end_char": 14448, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 14623, "end_char": 14632, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 15046, "end_char": 15067, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "art. 286", "label": "PROVISION", "start_char": 15133, "end_char": 15141, "source": "regex", "metadata": {"statute": null}}, {"text": "Tata Iron and Steel Co.", "label": "ORG", "start_char": 15355, "end_char": 15378, "source": "ner", "metadata": {"in_sentence": "But the same Bench, in dealing with a case arising under the Act (The State Trading Corporation of India v. The State of Mysore<'>) again approved of the observations in Tata Iron and Steel Co. caseOl."}}, {"text": "Sarkar", "label": "JUDGE", "start_char": 15388, "end_char": 15394, "source": "ner", "metadata": {"in_sentence": "Sarkar, I., observed thus:\n\n\"The question then is, did the sales occasion the movement of cement from another State into Mysore within the meaning of the definition?"}}, {"text": "section 3(a)", "label": "PROVISION", "start_char": 15698, "end_char": 15710, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 15726, "end_char": 15739, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Tata Iron & Steel Co.", "label": "ORG", "start_char": 16588, "end_char": 16609, "source": "ner", "metadata": {"in_sentence": "Tata Iron & Steel Co.C 1> case was again followed by this Court in Singareni Collieries Co. v. Commissioner of Commercial Taxes, Hyderabad(')."}}, {"text": "A. Ranganadham Chetty", "label": "JUDGE", "start_char": 16776, "end_char": 16797, "source": "ner", "metadata": {"in_sentence": "The learned counsel for the respondent, Mr. A. Ranganadham Chetty, invited us to hold that the observations of Shah, J., in Tata Iron and Steel Co. {1) case were obiter, and to consider the question afresh."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 17019, "end_char": 17023, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 17112, "end_char": 17116, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 17172, "end_char": 17176, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(b)", "label": "PROVISION", "start_char": 17232, "end_char": 17239, "source": "regex", "metadata": {"statute": null}}, {"text": "Tata Iron and Steel Co.(1", "label": "ORG", "start_char": 17658, "end_char": 17683, "source": "ner", "metadata": {"in_sentence": "In the State Trading Corporation(•) case, in so far as the assessment for the assessment year 1957-58 was concerned, this Court applied the principles laid down in Tata Iron and Steel Co.(1) case."}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 18605, "end_char": 18612, "source": "regex", "metadata": {"statute": null}}, {"text": "(1966] 2 S.C.R. 190", "label": "CASE_CITATION", "start_char": 18946, "end_char": 18965, "source": "regex", "metadata": {}}, {"text": "(1963] 3 S.C.R. 792", "label": "CASE_CITATION", "start_char": 18972, "end_char": 18991, "source": "regex", "metadata": {}}]}
{"document_id": "1966_3_359_364_EN", "year": 1966, "text": ". '\n\nESTHURI ASWATHIAH\n\nCOMMISSIONER OF INCOME-TAX, MYSORE • [K. SUBBA RAO, M. HIDAYATULLAH AND R.S. BACHAWAT, JJ.j\n\nIncome-tax Act (11 ?f. 192,2). s, 2(11)-Length of previoU3 year-ft should be only 12 calendar months--Previous year of 21 months-Rate a/\n\ntax applicable.\n\nUp to the assessment year lsl51-S2, the appellant adopted the yea• ending on 30th June as the previous year applicable to him. For the\n\n.... essment year, 1952-53, the assessee filed a return for 21 months commencing on !st July 1950 and ending-on 31st March, 1952 and ruested the Income-tax Officer to accord his , Sanction to the change of the previous year from an year ending on 30th Jorie to an year ending on 31st March.\n\nThe Income-tax Officer sanctioned the change on condition that the total' income in the period of 21. month$ .en.diµg on 31st March 1952 would be asseosed to tax at the rate applicable to the total income in the sitld 21 months. Tue Appellate Assistant Coqunissioner and the Appellate Tribunal on appeal, and the High Court, on a reference, confirmed the order.\n\nIn appeal to this Court it was contended that: (i) the scheme of Act and.particularly ss. 2(11) and 3.show that tl; tere cannot be a prevrous year consisting of more than 12 il)\\)nths; (ii) the Income-tax Officer had no power to direct under the proviso to cl. (l)(a) of s. (2)(11) that the' previous year should consist of 2t months; (iii) the Income-tax Officer ohould have granted the. s.anction on condition that the asseMCc shall have 2 previoiµ, years, one consisting of a period of nine months from !st July\n\n1950 µp to 31st March 1951 and the other of a period of 12 months from 1st April 1951 to 31st March 1952; and (iv) the Income-tax Officer should have accorded sanction to the change on the basis that the income for 21 months should be assessed at the rate applicable to the income of the last period of 12 months.\n\nHELD: (i) A combined reading of the several clauses of s. 2(11} shows that the length of a previous year need not nocessarily be 12 calendar months. Under .s .. 2( 11 )(i)(b), the previous year is such . period as may be determined by the Central Board of Revenue or such f authority as the Board may authorise in this behalf, and the period so, determined.may be more or less than 12 months. [362 H-363 A)\n\n(ii) The Income-tax Officer may refuse .to give his consent to a change of the previous year, but if he gives his consent, he has ample power to impose the condition that the full period from the end of the \"prev:ous year\" for the preceding year's assessment to the end of the new accounting year should be taken as the previous year for the current assessn:ient year. The condition properly safeguards the interests of the Revenue because, if he had sanctioned the change on the footing that the previous year would only be the period of 12 months from 1st April 1951 to 31st March 1952 the income of the preceding 9 months from !st July 1950 to 3 lst March 1951 would have escaped taxation. [363 D-F]\n\n{iii) There cannot be two p'tevious yeas in respec~ of the same assess .. _ ment year and stich a concept of two previous years is repugnant to s. 3.\n\nSection 25 ( I) does not contemplate assessments in the same assessment IOSup. Cl/66-10\n\nyear in respect of two previous years. It only contemplates the usual aaeament in respect of the income of the previous year and a special and\n\nseparate assessment in the same assessment year in respect of the income of the broken period between the end of the previous year and the date or\n\ndiscontinuance of the business. (363 H-364 C]\n\niv) The lncome-ta.x Officer as no power to vary the rate on which the m<:ome of the previous year IS to be assessed. The condition imposed by the Jncome-tax Officer, that the income of the previous year of 21 months would be assessed at the rate applicable to the income for 21 months is redunda.nt, because, once the length of the previous year is found lo be a penod of 21 months, the income of the entire period of 21 months, must be considered to, be the income of the previous year relevant for the asseosment year. 1952-53, and the. entire income lllQlt be 83SeSSed at the rate specified in the relevant Finance Act, and at no other rate. [364 D-G]\n\nQYIL APPl;!.LATE JURISDICDON : Civil Appeal No. 402 of 1965 Appeal from the order dated June 4, 1962 of the Mysore High Court in Income-tax Referred Case No. 7 of 1961.\n\nK. Srinirasan and R. Gopalakrishnan, for the appellant.\n\nR. Ganapathy Iyer and R. N. Sachthy, for the respondent. o\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. The appeal raises a question of interpreiauon of the proviso to cl. (i)(a) of s. 2(11) of the Indian Income-tax Act,\n\n1922. Up to the assessment year 1951-52, the appellant adopted the year ending on June 30 as the \"previous year\" applicable to him. The assessment for the assessment year, 1951-52 was accordingly made in respect of the previous year ended on June 30, 1950.\n\nFor the assessment year, 1952-53, the assessee filed a return for 21 months commencing on July I, 1950 and ending on March 31, 1952, and requested the Income-tax Officer to accord his sanction to the change of the previous year from an year ending on June 30 lo an year ending on March 31. The Income-tax Officer duly sanctioned the change. In the assessment order for the year, 1952-53 he stated:\n\n\"The return of income filed for this year is for the period between 1-7-50 and 31-3-52. The permission to change the previous year is granted subject to the condition that the total income in the period of 21 months ending 31-3-52 will be assessed to lax at the rate applicable to the total income in the said 21 months.\"\n\nThe appellant was apparently happy with this order, and he made no protest before the Income-tax Officer. The assessment for the assessment year 1952-53 was accordingly made in respect of the income of the previous year consisting of 21 months commencing from July l, 1950 and ending on March 31, 1952. In his appeals before the Appellate Assistant Commissioner and the Income-\n\n....\n\nA tax Appellate Tribunal, the appellant, however, contended that the total income of 21 months should be assessed at the rate applicable to the proportionate income for a period of 12 months. Both the authorities concurrently rejected this contention. On the application of the assessee, the Tribunal referred the following two question( of law for the decision of the High Court of Mysore: B\n\nP' \"(!) Within the meaning of Sec. 2(ll)(a) of the . Income-tax Act, whether the Income-tax Officer is entitled to have the length of the 'previous year' as 21 months though the assessee itself applies for such a change?\n\n(2) When the length of the assessee's previous year is allowed to be 21 months, whether it is obligatory on the part of the Income-tax Officer to tax the income for the said period of 21 months at the rate applicable to the proportionate income for a period of 12 months?\"\n\nAt the hearing of the reference, the second question of law was no pressed. The first question of law was pressed, and it was contend- D ed that according to the scheme of the Indian Income-tax Act, there cannot be a previous year consisting of more than 12 months, and the Income-tax Officer was not competent to constitute a previous year consisting of 21 months under the proviso to cl. (i)(a) to s. 2(11). The High Court rejected this contention and answered the questions in favour of the Revenue and against the assessee.\n\nThe assessee now appeals to this Court on a certificate granted by E the High Court under s. 66A(2) of the Indian Income-tax Act, 1922.\n\nMr. Srinivasan repeated before us the contentions which he urged before the High Court. He submitted that the scheme of the Act and particularly ss.2(11) and 3 show that there cannot be a previous year consisting of more than 12 months, and the Income- F tax Officer had no power to direct under the proviso to cl. (i)(a) of s.2(1 I) that the previous year should consist of 21 months.\n\nWe are unable to accept this contention.\n\nSection 3 is the charging section. For any assessment year, income-tax is charged on the income of the previous year. Section\n\n3 does not define the length of the previous year. The \"previous G year\" is defined ins. 2(11). The main part of cl. (i)(a) of s. 2(11) reads:\n\n\"(II) 'previous year' means-\n\n(i) in respect of any separate source of income, profits and gains-\n\n(a) the twelve months ending on the 31st day of March next preceding the year for which the assessment is to be made, or, if tte accounts of the assessee have been made\n\nup to a date within the said twelve months in respect of a year ending on any date other than the said 31st day of March, then at the option of the assessee, the year ending on the date to which his accounts have been so made up.\"\n\nThe main part of cl. (i)(a) of s. 2(11) gives the primary meaning of the expression \"previous year\", and this meaning was elucidated by Mahajan, J. in Commissioner of lncome-rax, Madras v. K. Srini-\n\n1asm1 and K. Gopa/an(') thus:\n\n\"The expression 'previous year' substantially means an accounting period comprised of a full period of twelve months and usually corresponding to a financial year preceding the financial year of assessment. It also means an .accounting year comprised of a full period of twelve months adopted by the asscssee for maintaining his accounts but different from the financial year and preceding a financial year.\"\n\nThus, under the main part of cl. (i)(a) of s. 2(11 ), the previous year is either a period of 12 months ending on March 31 next preceding the assessment year or al the option of the assessee the year ending on some other date within the aforesaid period of 12 months, if the account' of the assessee have been made up to such date.\n\nThe proviso to sub-cl. (i)(a) reads :\n\n\"Provided that where in respect of a particular source E of income, profits and gains an assessee has once been assessed, or where in respect of a business, profession or vocation newly set up an asscssce has exercised the option . under sub-clause (e), he shall not, in respect of that source or, as the case may be, business, profession or vocation, exercise the option given by this sub-clause so as F to vary the meaning of the expression 'previous year' as then applicable to him except with the consent of the Income-tax Officer and upon such conditions as the Incometax Officer mav think fit to impose.\"\n\nSub-clause (i)(b) of s. 2(11) empowers the Central Board of Revenue or its nominee to detennine the period of the previous year in G respect of any person, business or company or class of person, business or company. Sub-clause (i)(c) dejines the previous year in respect of a newly set up business, profession or vocation. Subclause (ii) defines the previous year in respect of the share of the assessec's income in a firm.\n\nA combined reading of the several clauses of s. 2( 11) shows that the length of a previous year need not necessarily be 12 Calendar ----------\n\n(1) [19631 S.C.R. 486, 501\n\n' '\n\n' '\n\nmonths. Under s. 2(11 )(i)(b ), the previous year is such period as may be determined by the Central Board of Revenue or such authority as the Board may authorise in this behalf, and the period so determined may be more or Jess than 12 months. Under s. 2(ll)(i)(c), the period of the previous year in respect of a newly set up business, profession or vocation may be Jess than 12 months.\n\nIn this background, Jet us consider the meaning of s. 2(Jl)(i)(a).\n\nThe assessee has the option to choose his accounting year ending on any date within the preceding financial year as his previous year.\n\nOnce he exercises this option, the meaning of the expression \"previous year\" as applicable to him is determined, and he cannot exercise this option again \"so as to vary the meaning of the expression 'previous year' as then applicable to him except with the consent of the Income-tax Officer and µpon such conditions as the Income-tax Officer may think fit to impose.\" If the assessee wants to change the meaning of the previous year as then applicable to him, he must obtain theconsent of the Income-tax Officer, and the Income-tax Officer may accord such consent on proper terms. The Income-tax Officer may refuse to give his consent, but if he does give his consent, he has ample power to impose the condition that the full period from the end of the 'previous year' for the preceding year's assessment to the end of the new accounting year should be taken as the previous year for the current assessment year. Thus, if the previous year at any given time applicable to the assessee ends on June 30 and he wants to vary it so as to make it end on March 31 next, the Income-tax Officer has power to accord sanction to the change on the condition that the previous year would consist of the entire period of 21 months commencing on June 30 of the year up to which his accounts were last made up to March 31 of the year up to which his accounts are newly made up. The condition properly safeguards the interest of the Revenue. Had he sanctioned the change on the footing that the previous year of the assessee in relation to the current assessment year would be the period of 12 months from April I to March 31, the income of the preceding 9 months from July I to March 31 would have escaped taxation altogether.\n\nG Mr. Srinivasan submitted that the Income-tax Officer could grant the sanction on condition that the assessee should have two previous years, one consisting of a period of nine months from July I up to March 31 and the other of a period of 12 months from April I to the next succeeding March 31. This is an impossible contention. There cannot be two previous years in respect of the H same assessment year. The charge under s. 3 for any assessment year is in respect of the income of the previous year. The concept , of two previous years in relation to the same assessment year is repugnant to s. 3. In Dhandhania Kedia & Co. v. Commissioner\n\nSUPREME COURT\n\nIU>PORTS\n\n(1966] 3 S.C.R\n\nof Income-tax( ), this Court pointed out that it is a contradiction in terms to speak of six previous years 0in relation to any specified assessment year. Mr. Srinivasan is not right in submitting that s. 25(1) contemplates two previous years. Section 25(1) provides that in case of discontinuance of any business, profession or vocation in any assessment year, the Income-tax Officer may in that year make an accelerated assessment in respect of the income of the period between the end of the previous year and the date of such discontinuance, in addition to the usual assessment in respect of the income of the previous year. Section 25( 1) contemplates the usual assessment in respect of the income of the previous year and a special and separate assessment in the same assessment year in respect of the income of the broken period between the end of the previous year and the date of the discontinuance; it does not contemplate, as counsel submitted, assessments in the same assessment year in respect of two previous years.\n\nMr. Srinivasan alternatively submitted that the Income-tax Officer could accord sanction to the change on the basis that the income for 21 months should be assessed at the rate applicable to the income of the last period of 12 months. This again is an impossible contention. The Income-tax Officer has no power to vary the rate on which the income of the previous year is to be assessed. The rate of tax is fixed by the Finance Act every year.\n\nBys. 3, the tax is levied at that rate for an assessment year in respect of the income of the previous year. Once the length of the previous year is fixed and the income of the previous year is determined, that income must be charged at the rate specified in the Finance Act and at no other rate. The order of the Income-tax Officer, in substance, permitted the change of the previous year on condition that the previous year in relation to the assessment year, 1952-53, would consist of the period of 21 months commencing from July I, 1950-and ending on March 31, 1952.\n\nThe Income-tax Otftcer bad power to impose this condition. The further condition that the income of the previous year of 21 months would be' assessed at the rate applicable to the income for 21 months is redundant. Once the length of the previous year is found to be a period of 21 months, the income of the entire period of 21 months must be considered to be the income of the previous year relevant for the assessment year, 1952-53, and the entire income must be assessed at the rate specified in the relevant finance Act.\n\nThe appeal is dismissed with costs.\n\nAppeal dismissed .\n\nIJ) (1938) 33 l.T.R. 400, 404.\n\nA . ~\n\nI' B", "total_entities": 54, "entities": [{"text": "ESTHURI ASWATHIAH", "label": "PETITIONER", "start_char": 5, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "ESTHURI ASWATHIAH", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, MYSORE", "label": "RESPONDENT", "start_char": 24, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, MYSORE", "offset_not_found": false}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 62, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 76, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "R.S. BACHAWAT, JJ", "label": "JUDGE", "start_char": 96, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 117, "end_char": 131, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S2", "label": "PROVISION", "start_char": 304, "end_char": 306, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 2(11) and 3", "label": "PROVISION", "start_char": 1149, "end_char": 1164, "source": "regex", "metadata": {"statute": null}}, {"text": "1st April 1951 to", "label": "DATE", "start_char": 1650, "end_char": 1667, "source": "ner", "metadata": {"in_sentence": "st July\n\n1950 µp to 31st March 1951 and the other of a period of 12 months from 1st April 1951 to 31st March 1952; and (iv) the Income-tax Officer should have accorded sanction to the change on the basis that the income for 21 months should be assessed at the rate applicable to the income of the last period of 12 months."}}, {"text": "1st April 1951", "label": "DATE", "start_char": 2856, "end_char": 2870, "source": "ner", "metadata": {"in_sentence": "The condition properly safeguards the interests of the Revenue because, if he had sanctioned the change on the footing that the previous year would only be the period of 12 months from 1st April 1951 to 31st March 1952 the income of the preceding 9 months from !"}}, {"text": "31st March 1952", "label": "DATE", "start_char": 2874, "end_char": 2889, "source": "ner", "metadata": {"in_sentence": "The condition properly safeguards the interests of the Revenue because, if he had sanctioned the change on the footing that the previous year would only be the period of 12 months from 1st April 1951 to 31st March 1952 the income of the preceding 9 months from !"}}, {"text": "3 lst March 1951", "label": "DATE", "start_char": 2949, "end_char": 2965, "source": "ner", "metadata": {"in_sentence": "st July 1950 to 3 lst March 1951 would have escaped taxation. ["}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3150, "end_char": 3154, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 25", "label": "PROVISION", "start_char": 3157, "end_char": 3167, "source": "regex", "metadata": {"statute": null}}, {"text": "SeSSed at the rate specified in the relevant Finance Act", "label": "STATUTE", "start_char": 4150, "end_char": 4206, "source": "regex", "metadata": {}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 4349, "end_char": 4366, "source": "ner", "metadata": {"in_sentence": "402 of 1965 Appeal from the order dated June 4, 1962 of the Mysore High Court in Income-tax Referred Case No."}}, {"text": "K. Srinirasan", "label": "LAWYER", "start_char": 4411, "end_char": 4424, "source": "ner", "metadata": {"in_sentence": "K. Srinirasan and R. Gopalakrishnan, for the appellant."}}, {"text": "R. Gopalakrishnan", "label": "LAWYER", "start_char": 4429, "end_char": 4446, "source": "ner", "metadata": {"in_sentence": "K. Srinirasan and R. Gopalakrishnan, for the appellant."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 4468, "end_char": 4485, "source": "ner", "metadata": {"in_sentence": "R. Ganapathy Iyer and R. N. Sachthy, for the respondent."}}, {"text": "R. N. Sachthy", "label": "LAWYER", "start_char": 4490, "end_char": 4503, "source": "ner", "metadata": {"in_sentence": "R. Ganapathy Iyer and R. N. Sachthy, for the respondent."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 4572, "end_char": 4580, "source": "ner", "metadata": {"in_sentence": "o\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. The appeal raises a question of interpreiauon of the proviso to cl. ("}}, {"text": "s. 2(11)", "label": "PROVISION", "start_char": 4663, "end_char": 4671, "source": "regex", "metadata": {"linked_statute_text": "SeSSed at the rate specified in the relevant Finance Act", "statute": "SeSSed at the rate specified in the relevant Finance Act"}}, {"text": "Indian Income-tax Act", "label": "STATUTE", "start_char": 4679, "end_char": 4700, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "1-7-50", "label": "DATE", "start_char": 5428, "end_char": 5434, "source": "ner", "metadata": {"in_sentence": "In the assessment order for the year, 1952-53 he stated:\n\n\"The return of income filed for this year is for the period between 1-7-50 and 31-3-52."}}, {"text": "31-3-52", "label": "DATE", "start_char": 5439, "end_char": 5446, "source": "ner", "metadata": {"in_sentence": "In the assessment order for the year, 1952-53 he stated:\n\n\"The return of income filed for this year is for the period between 1-7-50 and 31-3-52."}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 6437, "end_char": 6457, "source": "ner", "metadata": {"in_sentence": "On the application of the assessee, the Tribunal referred the following two question( of law for the decision of the High Court of Mysore: B\n\nP' \"(!)"}}, {"text": "Sec. 2(ll)(a)", "label": "PROVISION", "start_char": 6492, "end_char": 6505, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 6515, "end_char": 6529, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7141, "end_char": 7155, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2(11)", "label": "PROVISION", "start_char": 7358, "end_char": 7366, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 66A(2)", "label": "PROVISION", "start_char": 7577, "end_char": 7586, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 7594, "end_char": 7621, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Srinivasan", "label": "OTHER_PERSON", "start_char": 7628, "end_char": 7638, "source": "ner", "metadata": {"in_sentence": "Mr. Srinivasan repeated before us the contentions which he urged before the High Court."}}, {"text": "ss.2(11) and 3", "label": "PROVISION", "start_char": 7769, "end_char": 7783, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s.2(1 I)", "label": "PROVISION", "start_char": 7949, "end_char": 7957, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 8053, "end_char": 8062, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Section\n\n3", "label": "PROVISION", "start_char": 8171, "end_char": 8181, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 2(11)", "label": "PROVISION", "start_char": 8307, "end_char": 8315, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 2(11)", "label": "PROVISION", "start_char": 8856, "end_char": 8864, "source": "regex", "metadata": {"statute": null}}, {"text": "Mahajan", "label": "JUDGE", "start_char": 8961, "end_char": 8968, "source": "ner", "metadata": {"in_sentence": "i)(a) of s. 2(11) gives the primary meaning of the expression \"previous year\", and this meaning was elucidated by Mahajan, J. in Commissioner of lncome-rax, Madras v. K. Srini-\n\n1asm1 and K. Gopa/an(') thus:\n\n\"The expression 'previous year' substantially means an accounting period comprised of a full period of twelve months and usually corresponding to a financial year preceding the financial year of assessment."}}, {"text": "K. Gopa", "label": "OTHER_PERSON", "start_char": 9035, "end_char": 9042, "source": "ner", "metadata": {"in_sentence": "i)(a) of s. 2(11) gives the primary meaning of the expression \"previous year\", and this meaning was elucidated by Mahajan, J. in Commissioner of lncome-rax, Madras v. K. Srini-\n\n1asm1 and K. Gopa/an(') thus:\n\n\"The expression 'previous year' substantially means an accounting period comprised of a full period of twelve months and usually corresponding to a financial year preceding the financial year of assessment."}}, {"text": "s. 2(11 )", "label": "PROVISION", "start_char": 9509, "end_char": 9518, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(11)", "label": "PROVISION", "start_char": 10471, "end_char": 10479, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Board of Revenue", "label": "ORG", "start_char": 10493, "end_char": 10517, "source": "ner", "metadata": {"in_sentence": "Sub-clause (i)(b) of s. 2(11) empowers the Central Board of Revenue or its nominee to detennine the period of the previous year in G respect of any person, business or company or class of person, business or company."}}, {"text": "s. 2( 11)", "label": "PROVISION", "start_char": 10921, "end_char": 10930, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(11 )(i)(b )", "label": "PROVISION", "start_char": 11072, "end_char": 11088, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(ll)(i)(c)", "label": "PROVISION", "start_char": 11308, "end_char": 11322, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(Jl)(i)(a)", "label": "PROVISION", "start_char": 11498, "end_char": 11512, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 13789, "end_char": 13793, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 13960, "end_char": 13964, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25(1)", "label": "PROVISION", "start_char": 14252, "end_char": 14260, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 25(1)", "label": "PROVISION", "start_char": 14294, "end_char": 14307, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 25( 1)", "label": "PROVISION", "start_char": 14679, "end_char": 14693, "source": "regex", "metadata": {"statute": null}}, {"text": "March 31, 1952", "label": "DATE", "start_char": 16081, "end_char": 16095, "source": "ner", "metadata": {"in_sentence": "The order of the Income-tax Officer, in substance, permitted the change of the previous year on condition that the previous year in relation to the assessment year, 1952-53, would consist of the period of 21 months commencing from July I, 1950-and ending on March 31, 1952."}}]}
{"document_id": "1966_3_365_372_EN", "year": 1966, "text": "EVEREST APARTMENTS CO-OPERATIVE HOUSING\n\nSOCIETY LTD.\n\nSTATE OF MAHARASHTRA & ORS.\n\nJanuary 18, 1966\n\n[K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACHAWAT JJ.j\n\nMaharashtra Co--0perative Societies Act, 1960 (24 of 1961), ss. 23(2), 154-0rders of Deputy Registrar under s. 23(2)-Whether final-State Government whether has revisional jurisdiction over 'then1 under s. 154- Parties whether can invoke revisional jurisdiction.\n\nThe appellant was a registered co-operative Housing Society, regi& tered under the Maharashtra Co-operative Societies Act, 1960.\n\nS, respondent no. 4, applied for membership of the society but this was retu.ed. He appealed under s. 23(2) of the Act to the Deputy Registrar Co-operative Societies who decided in bjs favour.\n\nThe appellant filed an application before the State Government for revision purporting to be under s. 154 of the Act which was rejected on the ground that Government bad no revisional jurisdiction against orders under s. 23(3). The appellant then went to the High C.Ourt under Arts. 226 and 227 and failing there also came to this Court by special leave. The questions that fell to be decided were. (i) Is the finality under s. 23(3) subject to s. 154 and (ii) Has a party a right to move the State Government under •. 154?\n\nHELD : (i) There is no doubt that s. 154 is potential but not compulsive. Power is reposed in Government to intervene to do justice when occasion demands it and of the occasion for its exercise Government is made sole judge. This power can be exercised in all cases except in a case in which a similar power has already been exercised by the Tribunal under s. 149(9) of the Act.\n\nThe exception was considered necessary because the legality or propriety of an order having been considered once,. it would be an act of superetogation to consider the matter twice.\n\nIt follows, thetefore, that Government can exercise its powers under s. 154 in all cases with one exception only, and that the finality of the order under s. 23(3) does not restrict the exercise of the power. The word •final' in this context means that the order is not subject to an ordinary appeal or revision but it does not touch the special power legislatively conferred on Government. The Government was in error in considering that .it had no jurisdiction in this case for it obviously had. [371 B-DJ\n\nConunissioner of Income-tax West Punjab v. The Trii.J-ruze Trust, Lahore, ( 1948) 16 l.T.R. 214 (P.C.) and Sheffield Corporation v. Luxford, [1929] 2 K.B. 180, refecred to.\n\n(ii) The fact that s. 154 does not expressly permit a party to invoke the revision jurisdiction under that section does not mean that a party is prohibited from moving the Government.\n\nBut as Government is not compelled to take action, unless it thinks fit the party who moves the Government cannot claim that he has a right of appeal or revision.\n\nOn the other hand Government should welcome such applications because they draw its attention to cases in some of which it may be interested to intervene. [371 FJ\n\n366 .\n\nSUPREME COUllT REPORTS\n\nI 1966] 3 S.C.R.\n\nSheffield Corporation v. Lu.tford, (1929] 2 K.B. 180, distinguished.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. I of 1966.\n\nAppeal by special leave from the order dated June 30, 1965 of the Bombay High Court in Special Civil Application No. 1027 of 1965.\n\nS. V. G11p1e, Solici1or-Cie11eral and N. N. Keswani, for the appellant.\n\nJViren De, Additional So/icitor-Ge11eral and B. R. G. K. Achar, for respondent No. I.\n\nThe judgment of the Court was delivered by\n\nHidayatullab, J, In this appeal by special leave we are not concerned with the merits of the controversy between the appellant and the fourth respondent, who are the contesting parties, because bnly two short questions of law arise for our decision. The appellant is a registered co-operative Housing Society, registered under the Maharashtra Co-operative Societies Act, 1960 (XXIV of 1961 ).\n\nThe Society was prori1oted by two individuals for the construction of a block of flats in Bombay. Shivdasani (respodent 4) claims to we paid the entrance fee, share money and other demands and cilmplaints that his membership was wrongly rejected by the Society.\n\nThe Society denies these statements and the claim.\n\nWe arc not concerned with the details of this dispute.\n\nWhat we are concerned with is this: On being informed of the rejection of his application for membership, Shivdasani filed an appeal under s. 23(2) of the above Act, which was heard and decided in his favour by the District Deputy Registrar, Co-operative Societies, Bombay. \"The Society filed an application before the State Government for revision purporting to be under s. 154 of the Act. \"l11is application was rejected. The Society was intimated this result by the Under Secretary to the Government of Maharashtra (Agriculture and Cooperative Department) and the communication (CAR/1064/426590/ C-42, 17th May, 1965) was as follows :\n\n\"Sir,\n\nI am directed to state that following the hearing to you by the Deputy Secretary of this Department on 10th March, 1965, in connection with the subject noted above, a note was received in this Department from Shri M. G.\n\nMani, Advocate wherein it was claimed that though an order was final under Section 23(3) of the Maharashtra Cooperative Societies Act, 1960, Government had inherent revisionary powers under Section 154 of the said Act to entertain in such representations against such an order.\n\nI am to inform you that the matter has been examined by Government and to state that in such cases orders given\n\nJ' '\n\nunder Section 23(3) are final and Government has no revisional jurisdiction, in such .a matter. .\n\nYours fa!thfully,\n\nSd/- (D. A. EKBOTE) Under Secretary to Government.\"\n\nThe Society filed a petition under Arts. 226 and 227 of the Constitution in the High Court of Bombay which was also rejected (S.C.A.\n\n1027/65, 30 June, 1965). The High. Court passed a short and laconic order which reads:\n\n\"Government right in declaring no jurisdiction. It is wrong to say that respondent had wHhdrawn the application voluntarily. Attitude of the Society unjust. Admittedly the promoters were members of Everest Co. and they wanted Rs. 3,000 from each one for themselves.\n\nSocieties are not meant for self aggrandizement.\n\nNo ground to interfere .\n\nREJECTED.\" It is against the last order that the present appeal has been brought and the first question is whether the Government is right in law in declining to interfere because it has \"no revisional jurisdiction in E such a matter.\" The answer to this question depends upon the construction of s. 154 of the Act but before we attempt it, we shall say something about the Act and the provisions applicable to this case.\n\nThe Maharashtra Co-operative Societies Act, which replaced the Bombay Co-operative Societies Act, 1925 was passed to provide for the orderly development of the co-operative movement in the\n\nState of Maharashtra. It deals, among others, with housing societies, the object of which is to provide their members with dwelling houses. Every society having as its objects the promotion of the economic interests or general welfare of its members, or of the public, in accordance with co-operative principles and which is economically sound may register under the Act. This entitles the societies to obtain certain benefits. The State Government appoints a · Registrar of Co-operative Societies, who has numerous powers under the Act, and may appoint one or more persons to assist him and may confer all or any of the powers of the Registrar upon them.\n\nChapter II of the Act then deals with registration of societies and all matters connected therewith. Chapter III next deals with members and their rights and liabilities. Section 22 in that Chapter Jays down who may become a member of a society and by its second sub-section provides:\n\n\"22. Person who may become member.\n\n(I) • •\n\n(2) Where a person is refused admission as a member of a society, the'decision (with the reasons therefor) shall be communicated to that person within fifteen days of the date of the decision, or within three months from the date of the application for admission,-whichever is earlier.\"\n\nSection 23 then gives a right of appeal to a member who has been refused admission. It provides:\n\n\"23. Open membership.\n\n(I) No society shall, without sufficient cause, refuse admission to membership to any person duly qualified therefor under the provisions of this Act and its by-laws.\n\n(2) Any person aggrieved by the decision of a society, refusing him admission to its membership, may appeal to the Registrar.\n\n(3) The decision of the Registrar in appeal, shall be final and the Registrar shall communicate his decision to the parties within fifteen days from the date thereof.\"\n\nThe appeal of Shivdasani was made under the above section. After the or.der in appeal \\\\as passed by the Registrar, the Society moved the State Government under s. 154 to exercise its powers under that section. It reads:\n\n\"154. Power of State Government and Registrar to call for proceedings of subordinate officer and to pass orders thereon.\n\nThe Stale Government and the Registrar may call for and examine the record of any inquiry or the proceedings of any other matter of any officer subordinate to them, except those referred to in sub-section (9} of section\n\n149 for the purpose of satisfying themselves as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.\n\nIf in any case, it appears to the State Government, or the Registrar, that any decision or order or proceedings so called for should be modified, annulled or reversed, the State Government or the Registrar, as the case may be, may after giving persons affected thereby an opportunity of being heard pass such order thereon as to it or him may seem just.\"\n\nThe State Government held that it had no jurisdiction as orders given under s. 23(3) were final.\n\nTwo questions arise here: (i) Is\n\nA the finality under s. 23(3) subject to s. 154, and (ii) Has a party a right to move the State Government under s. 154? r• Mr. Niren De defending the order of the State Government as well as that of the High Court, admits that the State Government ,/ has been given a power to call for and examine the record of.any\n\nB enquiry or the proceedings of any other matter of any officer subordinate. to it, except those referred to in sub-section 9 of s. 149, and that as the present is not a matter under s. 149(9) the power could be exercised by Government for the purpose of satisfying itself as to the legality or propriety of the order. In other words, he does not contest that the finality stated by s. 23(3) does not affect the power of the State Government. In making c this admission he is clearly right. The Act has provided for , , appeals in other sections and the decision on appeal is stated to be final. Yet the power of superintendence is given to the . State , Government in general terms in respec_t of any inquiry or proceeding with only one exception, namely, the proceedings of the Maharashtra State Trjbunal, when the Tribunal calls for and\n\nD examines the record of any proceeding in which an appeal lies to it, for the purpose of satisfying itself as to the legality or propriety of any decision or order passed. By mentioning one specific exception to the general power, the Act has indicated an intention to . • include every other inquiry or proceeding within the action by Governments as contemplated by s. 154. Mr. De, however, con-\n\nE tends, firstly, that the action by Government is intended to be on its own motion and not by application, and, secondly, that the power need not be exercised unless Government itself feels that its exercise is necessary. He refers, by way of contrast, to the opening words of s. 150 where provision is made for review of orders of the Tribunal in these words : .\n\nF \"150. Review of orders of Tribunal. -· t (I) The Tribunal may, either on the application of the Registrar, or on the apflication of any party interested, review its own order in any case, and pass in reference thereto such order as it thinks just: Provided that, no such application made by the party G interested shall be entertained, unless the Tribunal is satisfied that there has been the discovery of new and important matter of evidence, which after the exercise ·\"' of due diligence was not within the knowledge of the applicant or could not be produced by him at the time • when its order was made, or that there has been some ,. ...\n\nH mistake or error apparent on the face of the record, or for any other sufficient reason_:\n\nMr. De next submits that this power not being coupled with A any duty need not be exercised by Government even if moved to take action, unless Government itself feels inclined.\n\nHe relies upon • l the Commissioner of Income Tax, West Punjab v. The Tribune Trust, Lahore.' In that case th@ question was whether s. 33 of the Indian ' Income Tax Act, 1922 which conferred revisional jurisdiction on the Commissioner established a right to relief on the application of an B assessce. It was contended by the assessces in that case that the relief claimed by them under s. 33 was wrongly denied to them.\n\nIn dealing with this contention Lord Simond (later Viscount) observed, at page 225 of the report, as follows:-··\n\n\"The fallacy implicit in this question has been made clear in the discussion of the first two questions. It assumes that Section 33 creates a right in the assessce.\n\nIn their Lordships' opinion it creates no such right.\n\nOn behalf of the respondent the well-known principle which was discussed in Julius v. Bishop of Oxford-(1880) 5 App.\n\nCas. 214-was invoked and it was urged that the section which opens with the words \"The Commissioner may of his own motion\" imposed upon him a duty which he was bound to perform upon the application of an assessee.\n\nIt is possible that there might be a context in which words so inept for that purpose would create a duty.\n\nBut in the present case there is no such context. On the contrary Section 33 follows upon a number of sections which determine the rights of the assessee and is itself, as its language clearly indicates, intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinates and take the necessary action upon such review.\n\nIt appears that as a matter of convenience a practice has grown up under which the Commissioner has been invited to act \"of his own motion\" under the section and where this occurs acertain degree of formality has been adopted. But the language of the section does not support the contention, which lies at the root of the third question and is vital to the respondent's case, that it affords a claim to relief.\n\nAs has heen already pointed out, appropriate relief is specifically given by other sections: it is not possihle to interpret Section 33 as conferring general relief.\" Mr. De also relies upon certain passages from Julius v. Bishop of Oxford2 which show the distinction between power which is discretionary in its exercise and power which must be exercised every time the occasion for its exercise arises.\n\nHe contends in the words of Talbot J. in Sheffield Corporation v. Luxfort/l that the\n\n(I) (1948) 16 1.T.R. 214 P.C.\n\n(2) (1880) 5 App. Cas. 214. (3). (1929) 2 K.B. 180 al 183.\n\nI '1\n\ni F\n\nE. H. , SOCIETY v. MAHARASHTRA (Hidayatu/lah, !.) 371\n\nword \"may\" always means \"may\" which is a permissive or enabling expression and that there are no circumstances either in the Act or in the facts here, by which it can be said that Government was under a duty to interfere. He submits that the order of Government must be read as indicating the above position and not that it had no jurisdiction. There is no doubt that s. 154 is potential but not compulsive.\n\nPower is reposed in Government to intervene to do justice when occasion demands it and of the occasion for its exercise, Government is made the sole judge. This power can be exercised in all cases except in a case in which a similar power has already been exercised by the Tribunal under s. 149(9) of the Act. The exception was considered necessary because the legality or the propriety of an order having been considered once, it would be an act of supererogation to consider the matter twice. It follows, therefore, that Government can exercise its powers under s. 154 in all cases with one exception only and that the finality of the order under s. 23(3) does not restrict the exercise of the power. The word 'final' in this context means that the order is not subject to an ordinary appeal or revision but it does not touch the special power legislatively conferred on Government. The Government was in error in considering that it had no jurisdiction in this case for it obviously had .\n\nThere remains the question whether a party has a right to move Government. The Tribune Trust case is distinguishable and cannot help the submission that Government cannot be moved at all.\n\nTue words of the two enactments are not materially equal. The Income-tax Act used the words 'suo mo tu' which do not figure here.\n\nIt is, of course, true that the words \"on an application of a party\" which occur in s. 150 of the Act and in similar enactments in other Acts, are also not to be found. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action, unless it thinks fit, the party who moves Government cannot claim that he has a right of appeal or revision.\n\nOn the other hand, Government should welcome such applications because they draw the attention of Government to cases in some of which, Government may be interested to intervene. In many statutes, as for example the two major procedural Codes, such language has not only not inhibited the making of applications to the High Court, but has been considered to give a right to obtain intervention, although the mere making of the application has not clothed a party with any rights beyond. bringing a matter to the notice of the Court. After this is done, it is for the court to consider whether to act or not. The extreme position does not obtain here because there is no right to interference in the same way as in a judicial proceeding. Government may act or may not act; the choice is of Government. There is no right of relief as in an appea1\n\nor revision under the two Codes.\n\nBut to say that Government has no jurisdiction at all in the matter is to err, and that is what Government did in this case.\n\nThe order of the High Court in these circumstances overlooked that the Government had denied to itself a jurisdiction which it undoubtedly possessed by considering that the finality of the order under s. 23(3) precluded action under s.\n\n154. The High Court ought to have issued a mandamus to Government to deal with the application before it within its jurisdiction under s. 154. That mandamus shall now issue to Government.\n\nThe appeal is thus allowed with costs.\n\nAppeal a//oll'ed.", "total_entities": 81, "entities": [{"text": "EVEREST APARTMENTS CO-OPERATIVE HOUSING\n\nSOCIETY LTD", "label": "PETITIONER", "start_char": 0, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "EVEREST APARTMENTS CO-OPERATIVE HOUSING SOCIETY LTD", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA & ORS", "label": "RESPONDENT", "start_char": 55, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA & ORS", "offset_not_found": false}}, {"text": "January 18, 1966", "label": "DATE", "start_char": 84, "end_char": 100, "source": "ner", "metadata": {"in_sentence": "January 18, 1966\n\n[K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACHAWAT JJ.j\n\nMaharashtra Co--0perative Societies Act, 1960 (24 of 1961), ss."}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 103, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 117, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "R. S. BACHAWAT JJ", "label": "JUDGE", "start_char": 137, "end_char": 154, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Societies Act, 1960", "label": "STATUTE", "start_char": 184, "end_char": 203, "source": "regex", "metadata": {}}, {"text": "ss. 23(2), 154", "label": "PROVISION", "start_char": 218, "end_char": 232, "source": "regex", "metadata": {"linked_statute_text": "Societies Act, 1960", "statute": "Societies Act, 1960"}}, {"text": "s. 23(2)", "label": "PROVISION", "start_char": 266, "end_char": 274, "source": "regex", "metadata": {"linked_statute_text": "Societies Act, 1960", "statute": "Societies Act, 1960"}}, {"text": "s. 154", "label": "PROVISION", "start_char": 360, "end_char": 366, "source": "regex", "metadata": {"linked_statute_text": "Societies Act, 1960", "statute": "Societies Act, 1960"}}, {"text": "Maharashtra Co-operative Societies Act, 1960", "label": "STATUTE", "start_char": 504, "end_char": 548, "source": "regex", "metadata": {}}, {"text": "s. 23(2)", "label": "PROVISION", "start_char": 650, "end_char": 658, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Co-operative Societies Act, 1960", "statute": "the Maharashtra Co-operative Societies Act, 1960"}}, {"text": "s. 154", "label": "PROVISION", "start_char": 844, "end_char": 850, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Co-operative Societies Act, 1960", "statute": "the Maharashtra Co-operative Societies Act, 1960"}}, {"text": "s. 23(3)", "label": "PROVISION", "start_char": 963, "end_char": 971, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Co-operative Societies Act, 1960", "statute": "the Maharashtra Co-operative Societies Act, 1960"}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 1022, "end_char": 1039, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Co-operative Societies Act, 1960", "statute": "the Maharashtra Co-operative Societies Act, 1960"}}, {"text": "s. 23(3)", "label": "PROVISION", "start_char": 1170, "end_char": 1178, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Co-operative Societies Act, 1960", "statute": "the Maharashtra Co-operative Societies Act, 1960"}}, {"text": "s. 154", "label": "PROVISION", "start_char": 1190, "end_char": 1196, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Co-operative Societies Act, 1960", "statute": "the Maharashtra Co-operative Societies Act, 1960"}}, {"text": "s. 154", "label": "PROVISION", "start_char": 1304, "end_char": 1310, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Co-operative Societies Act, 1960", "statute": "the Maharashtra Co-operative Societies Act, 1960"}}, {"text": "s. 149(9)", "label": "PROVISION", "start_char": 1627, "end_char": 1636, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 154", "label": "PROVISION", "start_char": 1902, "end_char": 1908, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(3)", "label": "PROVISION", "start_char": 1988, "end_char": 1996, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 154", "label": "PROVISION", "start_char": 2535, "end_char": 2541, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 3148, "end_char": 3176, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 3274, "end_char": 3291, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the order dated June 30, 1965 of the Bombay High Court in Special Civil Application No."}}, {"text": "N. N. Keswani", "label": "LAWYER", "start_char": 3378, "end_char": 3391, "source": "ner", "metadata": {"in_sentence": "S. V. G11p1e, Solici1or-Cie11eral and N. N. Keswani, for the appellant."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 3458, "end_char": 3475, "source": "ner", "metadata": {"in_sentence": "JViren De, Additional So/icitor-Ge11eral and B. R. G. K. Achar, for respondent No."}}, {"text": "Hidayatullab", "label": "JUDGE", "start_char": 3544, "end_char": 3556, "source": "ner", "metadata": {"in_sentence": "I.\n\nThe judgment of the Court was delivered by\n\nHidayatullab, J, In this appeal by special leave we are not concerned with the merits of the controversy between the appellant and the fourth respondent, who are the contesting parties, because bnly two short questions of law arise for our decision."}}, {"text": "Maharashtra Co-operative Societies Act, 1960", "label": "STATUTE", "start_char": 3875, "end_char": 3919, "source": "regex", "metadata": {}}, {"text": "Bombay", "label": "GPE", "start_char": 4028, "end_char": 4034, "source": "ner", "metadata": {"in_sentence": "The Society was prori1oted by two individuals for the construction of a block of flats in Bombay."}}, {"text": "Shivdasani", "label": "PETITIONER", "start_char": 4036, "end_char": 4046, "source": "ner", "metadata": {"in_sentence": "Shivdasani (respodent 4) claims to we paid the entrance fee, share money and other demands and cilmplaints that his membership was wrongly rejected by the Society.", "canonical_name": "Shivdasani"}}, {"text": "Shivdasani", "label": "PETITIONER", "start_char": 4415, "end_char": 4425, "source": "ner", "metadata": {"in_sentence": "What we are concerned with is this: On being informed of the rejection of his application for membership, Shivdasani filed an appeal under s. 23(2) of the above Act, which was heard and decided in his favour by the District Deputy Registrar, Co-operative Societies, Bombay. \"", "canonical_name": "Shivdasani"}}, {"text": "s. 23(2)", "label": "PROVISION", "start_char": 4448, "end_char": 4456, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Co-operative Societies Act, 1960", "statute": "the Maharashtra Co-operative Societies Act, 1960"}}, {"text": "s. 154", "label": "PROVISION", "start_char": 4681, "end_char": 4687, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Co-operative Societies Act, 1960", "statute": "the Maharashtra Co-operative Societies Act, 1960"}}, {"text": "Government of Maharashtra", "label": "ORG", "start_char": 4801, "end_char": 4826, "source": "ner", "metadata": {"in_sentence": "The Society was intimated this result by the Under Secretary to the Government of Maharashtra (Agriculture and Cooperative Department) and the communication (CAR/1064/426590/ C-42, 17th May, 1965) was as follows :\n\n\"Sir,\n\nI am directed to state that following the hearing to you by the Deputy Secretary of this Department on 10th March, 1965, in connection with the subject noted above, a note was received in this Department from Shri M. G.\n\nMani, Advocate wherein it was claimed that though an order was final under Section 23(3) of the Maharashtra Cooperative Societies Act, 1960, Government had inherent revisionary powers under Section 154 of the said Act to entertain in such representations against such an order."}}, {"text": "M. G.\n\nMani", "label": "LAWYER", "start_char": 5169, "end_char": 5180, "source": "ner", "metadata": {"in_sentence": "The Society was intimated this result by the Under Secretary to the Government of Maharashtra (Agriculture and Cooperative Department) and the communication (CAR/1064/426590/ C-42, 17th May, 1965) was as follows :\n\n\"Sir,\n\nI am directed to state that following the hearing to you by the Deputy Secretary of this Department on 10th March, 1965, in connection with the subject noted above, a note was received in this Department from Shri M. G.\n\nMani, Advocate wherein it was claimed that though an order was final under Section 23(3) of the Maharashtra Cooperative Societies Act, 1960, Government had inherent revisionary powers under Section 154 of the said Act to entertain in such representations against such an order."}}, {"text": "Section 23(3)", "label": "PROVISION", "start_char": 5251, "end_char": 5264, "source": "regex", "metadata": {"statute": null}}, {"text": "Maharashtra Cooperative Societies Act, 1960", "label": "STATUTE", "start_char": 5272, "end_char": 5315, "source": "regex", "metadata": {}}, {"text": "Section 154", "label": "PROVISION", "start_char": 5366, "end_char": 5377, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Cooperative Societies Act, 1960", "statute": "the Maharashtra Cooperative Societies Act, 1960"}}, {"text": "Section 23(3)", "label": "PROVISION", "start_char": 5580, "end_char": 5593, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Cooperative Societies Act, 1960", "statute": "the Maharashtra Cooperative Societies Act, 1960"}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 5780, "end_char": 5797, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Cooperative Societies Act, 1960", "statute": "the Maharashtra Cooperative Societies Act, 1960"}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 5825, "end_char": 5845, "source": "ner", "metadata": {"in_sentence": "226 and 227 of the Constitution in the High Court of Bombay which was also rejected (S.C.A.\n\n1027/65, 30 June, 1965)."}}, {"text": "Everest Co.", "label": "ORG", "start_char": 6165, "end_char": 6176, "source": "ner", "metadata": {"in_sentence": "Admittedly the promoters were members of Everest Co. and they wanted Rs."}}, {"text": "s. 154", "label": "PROVISION", "start_char": 6607, "end_char": 6613, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Co-operative Societies Act, 1925", "label": "STATUTE", "start_char": 6796, "end_char": 6835, "source": "regex", "metadata": {}}, {"text": "Maharashtra", "label": "GPE", "start_char": 6932, "end_char": 6943, "source": "ner", "metadata": {"in_sentence": "The Maharashtra Co-operative Societies Act, which replaced the Bombay Co-operative Societies Act, 1925 was passed to provide for the orderly development of the co-operative movement in the\n\nState of Maharashtra."}}, {"text": "Chapter II of the Act", "label": "STATUTE", "start_char": 7580, "end_char": 7601, "source": "regex", "metadata": {}}, {"text": "Section 22", "label": "PROVISION", "start_char": 7751, "end_char": 7761, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "Section 23", "label": "PROVISION", "start_char": 8199, "end_char": 8209, "source": "regex", "metadata": {"linked_statute_text": "Chapter II of the Act", "statute": "Chapter II of the Act"}}, {"text": "s. 154", "label": "PROVISION", "start_char": 8945, "end_char": 8951, "source": "regex", "metadata": {"statute": null}}, {"text": "section\n\n149", "label": "PROVISION", "start_char": 9340, "end_char": 9352, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(3)", "label": "PROVISION", "start_char": 9953, "end_char": 9961, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(3)", "label": "PROVISION", "start_char": 10030, "end_char": 10038, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 154", "label": "PROVISION", "start_char": 10050, "end_char": 10056, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 154", "label": "PROVISION", "start_char": 10122, "end_char": 10128, "source": "regex", "metadata": {"statute": null}}, {"text": "Niren De", "label": "OTHER_PERSON", "start_char": 10137, "end_char": 10145, "source": "ner", "metadata": {"in_sentence": "r• Mr. Niren De defending the order of the State Government as well as that of the High Court, admits that the State Government ,/ has been given a power to call for and examine the record of.any\n\nB enquiry or the proceedings of any other matter of any officer subordinate."}}, {"text": "section 9", "label": "PROVISION", "start_char": 10443, "end_char": 10452, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 149", "label": "PROVISION", "start_char": 10456, "end_char": 10462, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 149(9)", "label": "PROVISION", "start_char": 10510, "end_char": 10519, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23(3)", "label": "PROVISION", "start_char": 10710, "end_char": 10718, "source": "regex", "metadata": {"statute": null}}, {"text": "Maharashtra State Trjbunal", "label": "ORG", "start_char": 11107, "end_char": 11133, "source": "ner", "metadata": {"in_sentence": "State , Government in general terms in respec_t of any inquiry or proceeding with only one exception, namely, the proceedings of the Maharashtra State Trjbunal, when the Tribunal calls for and\n\nD examines the record of any proceeding in which an appeal lies to it, for the purpose of satisfying itself as to the legality or propriety of any decision or order passed."}}, {"text": "s. 154", "label": "PROVISION", "start_char": 11536, "end_char": 11542, "source": "regex", "metadata": {"statute": null}}, {"text": "De", "label": "OTHER_PERSON", "start_char": 11548, "end_char": 11550, "source": "ner", "metadata": {"in_sentence": "Mr. De, however, con-\n\nE tends, firstly, that the action by Government is intended to be on its own motion and not by application, and, secondly, that the power need not be exercised unless Government itself feels that its exercise is necessary."}}, {"text": "s. 150", "label": "PROVISION", "start_char": 11845, "end_char": 11851, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 12981, "end_char": 12986, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 13003, "end_char": 13023, "source": "regex", "metadata": {}}, {"text": "s. 33", "label": "PROVISION", "start_char": 13236, "end_char": 13241, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act, 1922", "statute": "Income Tax Act, 1922"}}, {"text": "Simond", "label": "OTHER_PERSON", "start_char": 13308, "end_char": 13314, "source": "ner", "metadata": {"in_sentence": "In dealing with this contention Lord Simond (later Viscount) observed, at page 225 of the report, as follows:-··\n\n\"The fallacy implicit in this question has been made clear in the discussion of the first two questions."}}, {"text": "Section 33", "label": "PROVISION", "start_char": 13506, "end_char": 13516, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act, 1922", "statute": "Income Tax Act, 1922"}}, {"text": "Section 33", "label": "PROVISION", "start_char": 14113, "end_char": 14123, "source": "regex", "metadata": 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{"document_id": "1966_3_373_378_EN", "year": 1966, "text": "• I\n\nM. V. KRISHNAN NAMBISSAN\n\nSTATE OF KERALA\n\nJanuary 18, 1966\n\n(K. SUBBA RAO, M. HIDAYATULLAH AND\n\nR. S. BACHAWAT, JJ.]\n\nPrevention of Food Adulteration Act (37 of 1954), ss. 7 and 16(1) (a)(i) and Prevention of Food Adulteration Rules, rr. 5, 44 and Ap,.endi:x B-Butter-mi1k-Standard of quality whether specified.\n\nThe appellant was the manager of a dairy farm.\n\nHe was charged with an offence under ss. 7 and 16(1) (a) (i) of the Prevention of Food Adulteration Act, 1954, read with r. 44 of the Prevention of Food Adulteration Rules, 1955, in that, he exposed for sale skimmed thick buttermilk, which to analysis, was fonnd to be adulterated with water tD the extent of 11 per cent, and had thus not maintained the standard prescribed for butter-milk. The trial Court acquitted him on the ground that no standard of quality was prescribed for butter-milk.\n\nOn appeal, the High Court convicted him, on the view that, the standard for milk h•s been fixed by the Rules, that the same standard was made applicable to curd and that, as butter.milk was in essence curd from which butter has been extracted, butter-milk should contain the same quantity of solids-notfat as curd should contain .\n\nIn appeal to this Court,\n\nHELD . Appendix B to the Prevention of Food Adulteration Rules, which specifies the standards of quality of various articles of food, shows that it is not an ingredient of the definition of butter-milk that it should contain any particular percentage of solids-not-fat.\n\nWherever the rulemaking authority intended to prescribe a specific standard for the contents of a product, it definitely stated so, but in the case of butter-milk, no standard for contents either specifically or with reference to other items is prescribed. The only requirement is that it shall be a product obtained after removal of butter from curd by churning or otherwise. Therefore, the appellant had not committed the offence with which hy was charged.\n\n(377 C, F-H]\n\nCRIMINAL APPELLATE JURISDICTION :. Criminal Appeal No. 93 of 1964.\n\nAppeal from the judgment and order dated October 11, 1963 G of the Kerala High Court in Criminal Appeal No. 153 of 1962.\n\nR. Ganapathy Iyer, for the appellant.\n\nP. Govinda Menon and M. R. K. Pillai, for the respondent.\n\nThe judgment of the Court was delivered by Subba Rao, J. The appellant is the manager of the Palghat Depot of Messrs. Nambissan's D. V. Dairy Farm. On July 20, 1961, one' of the Food Inspectors visited his depot and purchased from the second accused, the salesman in cha.rge of the depot, two\n\nnazlzies of \"skimmed thick butter-milk\" out of the stock exposed for sale in the depot.\n\nHe sent a sample of it for analysis to the Public Analyst. The Analyst reported that the solids-not-fat content in the said sample was 7.5 per cent. as against 8 5 per cent. prescribed for curd: he was of the opinion that the sample contair;- ed not less than 11 per cent. of added water. When the sample was analysed a few months later hy the Central Food Analyst, he reported that the solids-not-fat content in the sample was only 6·4 per cent. Thereupon a complaint was filed in the Court of the District Magistrate (Judicial), Palghat, against the .ippcllant and his sales-man-we arc not concerned in this appeal with the charge against the sales-man. The charge against the appellant was that he committed an offence under s. 16(l)(a)(i) and >. 7 of the Prevention of Food Adulteration Act, 1954 (37 of 1954), hereinafter called the Act, read with r. 44 of the Prevention of Food Adulteration Rules, 1955, hereinafter called the Rules. The charge against him was that he exposed for sale \"kimmed thick butter-milk\" which on analysis was found to be adulterated with water tJ the extent of 11 per cent. The learned District Magistrate, on a consideration of the entire evidence placed before him, came to the conclusion that the appellant was not guilty of the offence with which he was charged: he held that no standard of quality was prescribed for butter-milk and, therefore, the accused could not be convicted for the offence under the Act and the Rules. On appeal, the High Court took the view that the standard for milk had been fixed by the Rules, that the same standard was made applicable to curd and that, as butter-milk was in essence curd from which butter had been extracted, the butter-milk should contain the same quantity of solids-not-fat as curd should contain. On this reasoning, the High Court held that, as the sample showed only 6·4 per cent. of solids-not-fat content while it should have contained 8 5 per cent. of it, the accused had committed the offence under the said provisions and sentenced him to pay a fine of Rs. 100/-, in default to suffer simple imprisonment for one month.\n\nHence the present appeal, by certific-Jte.\n\nMr. R. Ganapathy Iyer, learned counsel f.Jr the appellant, contended that the appellant was prosecuted for not maintaining the standard prescribed for butter-milk and that, as no standard was in fact prescribed for the said product, the High Court went wrong in convicting him.\n\nTo appreciate this contention it is necessary to notice the relevant provisions of the Act and the Rules.\n\nSectio11 2(i)(l). An article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are\n\n.. t\n\n' B\n\n_,. , '\n\n......\n\npresent in quantities which are in excess of the prescribed limits of variability.\n\nSection 7. No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute:\n\n(i) any adulterated food:\n\n(ii) any misbranded food;\n\n(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder. ·\n\nSection 16. (i) If any person-\n\n(a) whether by himself or by any person on his behalf imports into India or manufactures for sale, or stores, or distributes, any article of food in contravention of any of the provisions of this Act or of any rule made thereunder.\n\nhe shall, in addition to the penalty to which he may be liable under the provisions of s. 6, be punishable ...•\n\nIn exercise of the power conferred under s. 23 of the Act, the Central Government made rules defining the standard of quality for, anJ fixing the limits of variability permissible in respect of, any article of food.\n\nRule 5 reads: \"Standards of quality of the various articles of food specified in Appendix B to these Rules are as defined in that Appendix.\"\n\nAPPENDIX B A.11.01. Milk means the normal clean and fresh secretion obtained by complete milking of the udder of a healthy cow, buffalo, goat or sheep during the period following at least 72 hours after calving or until colostrum free whether such secretion has been processed or not.\n\nA.11.01.01. Cow milk shall contain not less than 3 5 per cent of milk fat, except in Orissa, where it shall be not less than 3 per cent and in Punjab and PEPSU where it shall be not less then 4 0 per cent. The milk solids other than milk fat shall be not less than 8 5 per cent ..\n\nA.11.01.02. Buffalo milk shall contain not less than 5 O per cent of milk fat except in Delhi,. Punjab, PEPSU.\n\nUttar Pradesh, Bihar, West Bengal, Assam, Bombay and Saurashtra where it shall not be less than 6 per cent. 1he lOSup. Cl/66-11\n\nmilk solids other than milk fat shall not be less than 9 per cent.\n\nA.11.01.03. Goat or sheep milk shall contain not less than 3 0 per cent of milk fat except in Madhya Pradesh, Punjab, PEPSU, Bombay, Uttar Pradesh and Travancore- Cochin where it shall be not less than 3 5 per cent. The milk solids other than milk fat, shall be not less than 9 per cent.\n\nWhere milk, other than skimmed milk is sold or offered for sale without any indication as to whether it is derived from cow, buffalo, goat, or sheep the standard prescribed for buffalo milk shall apply.\n\nA.11.02. Skimmed milk, either fresh or reconstituted, means milk from which all or most of the milk fat has been removed by mechanical or any other process and includes \"separated milk\" or \"machine skimmed milk\". The milk solids other than milk fat shall be not less than 8 5 per cent.\n\nA.11.03. Butter-milk means the product obtained after removal of butter from curds by churning or other wise.\n\nA.11.05. (a) Table (creamery) butter means the product prepared exclusively from milk, cream or curd E of cow or buffalo or a combination thereof with or with out the addition of salt and coloured with annatto and shall contain not less than 80 per cent of milk fat and not more than 16 per cent of moisture. No preservative is permissible in table butter. Diacetyl may be added for flavour but shall not exceed 4 parts per million.\n\n(b) Deshi (cooking) butter means the product prepared exclusively from milk, cream or curd of cow or buffalo or a combination thereof, without the addition of any salt or any colour or any preservative and intended exclusively for use in cooking or for preparation of ghee. It shall contain not more than 20 per cent of moisture and not less than 76 per cent of milk fat. Where butter is sold or offered for sale without any indication as to whether it is table butter or deshi butter, the standards of quality prescribed for table butter shall apply.\n\nA.U.06. Dahi or curd-{a) Whole milk dahi or curd means the product obtained from fresh whole milk either of cow or buffalo by souring. It shall not contain any ingredient not found in Milk except sucrose and/or gur.\n\n'~· •\n\n(b) Skimmed milk dahi or curd means the product obtained from skimmed milk either of cow or buffalo by souring. It shall not contain any ingredient not found in milk, except sucrose and/or gur.\n\nThe standard of purity of dahi or curd shall be the same as prescribed for the milk from which it is derived.\n\nWhere dahi or curd, other than skimmed milk dahi is sold or offered for sale without any indication as to whether it is derived from cow or buffalo milk, the standards prescribed for dahi prepared from buffalo milk shall apply.\n\nIt will be seen from the said provisions that it is not an ingredient of the definition of butter-milk that it should contain any particular percentage of solids-not-fat. Indeed, no standard in regard t<> its contents is prescribed. The only standard, if it may be described as one, is that it shall be a product obtained after removal ef butter from curd by churning or otherwise. It is not suggested that the butter-milk in question was not a product obtained in the manner described thereunder. Prime facie, therefore, it follows. that the appellant has not committed any offence with which he was charged, namely, that he had added water to the extent of 11 per cent to the butter-milk.\n\nMr. Govinda Menon, learned counsel for the State, contended that a fair reading of the definition of the various milk products in Appendix B leads to an irresistible conclusion that for buttermilk the same standard of solids-not-fat prescribed for curds would apply. It was said that butter-milk was nothing more than curd from which fat had been removed and, therefore, there was n<> reason why, apart from fat, the other contents should be different from those found in the milk.\n\nIt will be seen from the definitions of the various products in Appendix B to the Rules, which we have already extracted, that wherever the rule-making authority intended to prescribe a specific standard for the contents of a product, it definitely states so. The standards of solids-not-fat are fixed for the milk of cow, buffalo, goat or sheep. Though standards are fixed for the said milk products, in defining \"skimmed milk\", \"deshi (cooking) butter\", and \"skimmed milk dahi or curd\" the standard of quality is prescribed with reference to other products. But when we come to butterlllilk, no standard for its contents either specifically or with reference to other items is prescribed. A comparative study of the said items leaves no room for doubt that the rule making authority, for reasons, which, we think, are obvious has not thought fit or feasible to prescribe any such standard in regard to the contents of butter-milk. We cannot by inference read some thing in the definition of butter-milk which is not there. The reason for this omis-\n\nSUPRBME COURT\n\nREPORTS\n\n[1966) 3 S.C.R.\n\nsion is presumably due to the fact that it is not possible to maintain in butter-milk the same percentage of solids-not-fat content as is found in curds or milk, for water will be added in the process of making butter-milk owing to the fact that butter grains in the chum arc washed with cold water which will run off into the butter-milk.\n\nAnyhow, we would prefer to rest our judgment on the absence of fixation of any standard in respect of butter-milk rather than on the process of conversion of curds into butter-milk. We should not be understood to have expressed any view on the question whether a prosecution could be launched for adulteration of butter-milk under some other clauses of the definition of \"adulterated\" in s. 2 of the Act, for in the present case the prosecution was only for not maintaining the standard.\n\nIn the result, the order of the High Court is set aside and that Qf the District Magistrate is restored. The fine, if it had already\n\nbeen collected, shall be refunded\n\nAppeal allowed .", "total_entities": 50, "entities": [{"text": "I\n\nM. V. KRISHNAN NAMBISSAN", "label": "PETITIONER", "start_char": 2, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "M. V. 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shall be not less then 4 0 per cent."}}, {"text": "Punjab", "label": "GPE", "start_char": 6915, "end_char": 6921, "source": "ner", "metadata": {"in_sentence": "Cow milk shall contain not less than 3 5 per cent of milk fat, except in Orissa, where it shall be not less than 3 per cent and in Punjab and PEPSU where it shall be not less then 4 0 per cent."}}, {"text": "PEPSU", "label": "GPE", "start_char": 6926, "end_char": 6931, "source": "ner", "metadata": {"in_sentence": "Cow milk shall contain not less than 3 5 per cent of milk fat, except in Orissa, where it shall be not less than 3 per cent and in Punjab and PEPSU where it shall be not less then 4 0 per cent."}}, {"text": "A.11.01.02", "label": "DATE", "start_char": 7054, "end_char": 7064, "source": "ner", "metadata": {"in_sentence": "The milk solids other than milk fat shall be not less than 8 5 per cent ..\n\nA.11.01.02."}}, {"text": "Delhi", "label": "GPE", "start_char": 7142, "end_char": 7147, "source": "ner", "metadata": {"in_sentence": "Buffalo milk shall contain not less than 5 O per cent of milk fat except in Delhi,."}}, {"text": "Uttar Pradesh", "label": "GPE", "start_char": 7166, "end_char": 7179, "source": "ner", "metadata": {"in_sentence": "Uttar Pradesh, Bihar, West Bengal, Assam, Bombay and Saurashtra where it shall not be less than 6 per cent."}}, {"text": "Bihar", "label": "GPE", "start_char": 7181, "end_char": 7186, "source": "ner", "metadata": {"in_sentence": "Uttar Pradesh, Bihar, West Bengal, Assam, Bombay and Saurashtra where it shall not be less than 6 per cent."}}, {"text": "West Bengal", "label": "GPE", "start_char": 7188, "end_char": 7199, "source": "ner", "metadata": {"in_sentence": "Uttar Pradesh, Bihar, West Bengal, Assam, Bombay and Saurashtra where it shall not be less than 6 per cent."}}, {"text": "Assam", "label": "GPE", "start_char": 7201, "end_char": 7206, "source": "ner", "metadata": {"in_sentence": "Uttar Pradesh, Bihar, West Bengal, Assam, Bombay and Saurashtra where it shall not be less than 6 per cent."}}, {"text": "Bombay", "label": "GPE", "start_char": 7208, "end_char": 7214, "source": "ner", "metadata": {"in_sentence": "Uttar Pradesh, Bihar, West Bengal, Assam, Bombay and Saurashtra where it shall not be less than 6 per cent."}}, {"text": "Saurashtra", "label": "GPE", "start_char": 7219, "end_char": 7229, "source": "ner", "metadata": {"in_sentence": "Uttar Pradesh, Bihar, West Bengal, Assam, Bombay and Saurashtra where it shall not be less than 6 per cent."}}, {"text": "A.11.01.03", "label": "DATE", "start_char": 7363, "end_char": 7373, "source": "ner", "metadata": {"in_sentence": "A.11.01.03."}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 7457, "end_char": 7471, "source": "ner", "metadata": {"in_sentence": "Goat or sheep milk shall contain not less than 3 0 per cent of milk fat except in Madhya Pradesh, Punjab, PEPSU, Bombay, Uttar Pradesh and Travancore- Cochin where it shall be not less than 3 5 per cent."}}, {"text": "PEPSU", "label": "ORG", "start_char": 7481, "end_char": 7486, "source": "ner", "metadata": {"in_sentence": "Goat or sheep milk shall contain not less than 3 0 per cent of milk fat except in Madhya Pradesh, Punjab, PEPSU, Bombay, Uttar Pradesh and Travancore- Cochin where it shall be not less than 3 5 per cent."}}, {"text": "Travancore- Cochin", "label": "GPE", "start_char": 7514, "end_char": 7532, "source": "ner", "metadata": {"in_sentence": "Goat or sheep milk shall contain not less than 3 0 per cent of milk fat except in Madhya Pradesh, Punjab, PEPSU, Bombay, Uttar Pradesh and Travancore- Cochin where it shall be not less than 3 5 per cent."}}, {"text": "Govinda Menon", "label": "OTHER_PERSON", "start_char": 10696, "end_char": 10709, "source": "ner", "metadata": {"in_sentence": "Mr. Govinda Menon, learned counsel for the State, contended that a fair reading of the definition of the various milk products in Appendix B leads to an irresistible conclusion that for buttermilk the same standard of solids-not-fat prescribed for curds would apply."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 12997, "end_char": 13001, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_379_392_EN", "year": 1966, "text": ". ~· '\n\n,. !\n\nCOMMISSIONER OF INCOME-TAX, PATIALA & ORS.\n\nM/s. SHAHZADA NAND & SONS & ORS.\n\nJanuary 19, 1966\n\n[K. SUBBA RAO. M. HIDAYATULLAH AND R. S. BACHAWAT, JJj\n\nIndian Income-tax Act, 1922 (11 of 1922), &. 34, sub-s. 34(l)(a) as amended by the Finance Act 1956; sub\"S. 34(1A)-Field of operation of the two sub-sections whether overlapping in respect of war years-Whether s. 34(1A) as a special provision over-rides s. 34(1) (a) in respect of .the -war ytars.\n\nOn March 26, 1954 the Income-tax authorities issued a notice to the respondents under s. 34(1) (a) of the Indian Income-tax Act, 1922 in respect of assessment year 1945-46. The assessment made pursuant to the notice was set aside by the appellatte authorities on the ground that the notice under s. 34(1)(a) was time baned because the assessment year in question was beyond the period of 8 years covered bys. 34(l)(a).\n\nSub-s<>. (IA) to (ID) were imerted in s. 34 by the Income-tax (Amendment) Act 1954. By sub-s. (IA) power was given to the Income-tax authorities to issue notice in respect of escaped income of the previous years within the period September 1, 1939 to March 31,\n\n1946. By the Finance Act 1956 with effect from April 1, 1956 s. 34(1) (a) was amended so that notices in respect of \"\"\"!IPed income could be issued 'at any time' subject to certain conditions. ·-0n July 25, 1958 tho Income-tax Officer again issued a notice to the respondents calling upon them to file a return for tho as3CSSment year 1945-46. An appeal to the Centrll Board of Revenue by some of respondents failed. Thereupon they filed a petition und\"\" Art. 226 of the Constitution challenging the notice on various grounds. Their main contention Wat that no notice under s. 34(l)(a) couid be issued in respect of the war years as tbe escapee.I income of the said war years was governed by ' 34(lA), whereunder notices could be issued only up to March 31, 1956. The High Coutt having taken a view favourable to the respondents, the Revenue appealed to this Court by special leave.\n\nIt was contended on behalf of the appellant that the terms of s. 34(1)(a) after its amendment in 1956 were clear and unambiguous and the scope of the expression 'at any time' could not be curtailed by cons' truction and that s. 34( IA) did not operate to restrict the operation of s. 34(1)(a) in respect of the war years. On behalf of tbe respondents it was contended thats. 34(1A) was a species of which s. 34(1)(a) was genus that in respect of the war years th..-e was a conflict between. the two sub-sections, and that in view of the maxim, generalia specialibus non _derogant, s. 34( IA) should prevail.\n\nHElD:\n\n(i) It would not be appropriate to describe subJS. (IA) aJJ one carved out of sub-s. (l)(a) or to call it a species of which sub-s. (!)(a) is the genus.\n\nWhen s. 34(1A) was enacted s. 34(1)(a) bad practically ceased to function in respect of the war years.\n\nAgain wheri S 34(1)(a) was amended with effect from April 1, 1956 s. 34(1A) had practically ceased to operate as no notices under it could be issued after March 31, 195 6.\n\nThere is no conflict between the two sub-sections. after that date. The wide phraseology of the amended s. 34(1) (a) take•.\n\nin all the escaped concealed incomes during all the yeara oommencing from 1941 and confers power on the lncome-iax Officer to give notice there under in respect of the •aid income without any bar of limitation.\n\n[390 C-FJ\n\n(ii) Sub.Section (IA) does not really preocribe any period of lirnita tion. It enables the Income-tu Officer to !&kc proceedings within a panicular time, though the period of limitation had expired. It conferred a special power on the Income-tax Officer which expired on April I,\n\n1956. The non.obstante clause in llllH. (IA) indicatea that it waa enacted to operate notwithstanding that the period of 8 yoan had expired. The 1aid sub-section served its purpose only when the period of 8 yeara governed a notice under su!H. (I) (a). But when that bar of limilation was removed, sub-s. (IA) bad become otiose. (390 G-391 Al\n\nFunher sub-s. (IB) as amended by the Fmance Act of 1956 and 111b-1. 4 added by tho In4i1D Inotu Act (Alllendmcat) Act 19St,\n\nalso reinforces the construction that su!H. 34(l)(a) as amended in 1956 was applicable to the war years despite sub~. 34(1A). (391 B., D-E]\n\n(iii) The reason why su!H. (IA) wea retained in the statute even after the Finance Act of 1956 was that though DD new notices could be isimed under that sulH; ection after April 1, 1956, notices already issued before that date were pending. They could be disposed of in the manner prescribed by su!Hls. (IA), (IB), (IC), and (IDl of s. 34.\n\nAll the aid 111b\"ctions formed an intq1al code. 11io lcPiature, premmably,\n\nintended to keep the said sub-oectiOlllJ whercunder proceedings had already been initiated and make available to the said proceedings the procedure prescribed under the said provisions. It may also be that sub,,. (IA) wea kept in super abundant caution. What.ever that may be, it cannot, in the circumstances, detract from the clear provisions of sub-s. (I) (a).\n\n1391 F, G]\n\nCase law referred to.\n\nQvn. APPFH.ATE JtJP.ISDICTION and 495 of 1964.\n\nCivil Appeals Nos. 494\n\nAppeals by special leave from the judgment and order datod September 26, 1961 of the Punjab High Court in Civil Writ No. 80lof1959.\n\nF S. T. Desai, R. Ganapathy Tyer and R. N. Sachthey, for the appellant.\n\nN. A. Palkhiva/a, l. M. Nanavati, T. A. Ramachandran, J. B.\n\nDadachanji, 0. C. Mathur and Ravinder Narain, for the respon- •• G N. A. Palkhivala, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for intervener Nos. I and 2.\n\n[, M. Nanavali, J. B. Dadachanji, 0. C. Mathur and Ravirtder Narain, for intervener No. 3.\n\nN. A. Palkhivala, R. J. Ko/ah, J.B. Dadachanji, 0. C. Mathur H and Rll'linder Narain, for intervener No. 4.\n\nD. N. Mukherjee, for intervener No. 5.\n\n.> .,\n\n/ '\n\nA The judgment of the Court was delivered by\n\nSobba Rao, J. These two appeals, one by special leave and the other by certificate, raise the question whether notice can be issued at any time for reassessment under s. 34(1)(a), as amended by the Finance Act, 1956, of the Indian Income-tax Act, 1922, hereinafter called the Act, in respect of a concealed income to which s. 34(1A) thereof applied.\n\nThe facts may be briefly stated. Messrs. Shahzada and Sons, the lst respondent in both the appeals, was an undivided Hindu Family firm and it was assessed in that capacity up to the assessment year 1945-46. It is alleged that subsequently there was a partition in the family and a new firm came into existence, whic\\ took over the business of. the family. On March 26, 1954, the Income-tax authorities issued a notice to the members of the clefunct Hindu undivided family under s. 34(1)(a) of the Act i11 respect of the assessment year 1945-46 on the ground that certain •ncome of the said family had escaped assessment. Pursuant to the proceedings so initiated, a sum of Rs. 3,63,000/- was added to the original assessment of the said family. The assessee took up the matter on appeal to the Appellate Assistant Commissioner, who held that the said notice was barred by time, though on the merits he confirmed the order of the Income-tax Officer. The Income-tax Department as well as the l st respondent preferred appeals against the said order to the Income-tax Appellate Tribunal. The Tribunal held that the notice was barred by time and, therefore, the' income-tax authorities had no jurisdiction to give a finding on the merits. Meanwhile s. 34(1)(a) of the Act was amended by the Finance Act, 1956, with effect from April l, 1956, whereunder, subject to certain conditions, a notice under s. 34(1)(a) could be issued at any time. Thereafter, on July 25, 1958, the Income-tax Officer issued a notice to the 1st respondent calling upon the members who constituted the undivided family to file a return for the assessment year 1945-46. Respondents 2 to 5, who were the members of the said undivided Hindu family, appealed to the Central Board of Revenue for redress without any success. Thereafter, they filed a petition under Art. 226 of the Constitution in the High Court of Punjab challenging the notice on various grounds. Their main contention was that no notice under s. 34(l)(a) could be issued in respect of the war years, as the escaped income during the said years was governed by s. 34(1A) of the Act whereunder a notice .could be issued only before March 31, 1956. The writ petition\n\ncame up before a single Judge of the High Court, who referred the following question to a larger Bench :\n\n\"Whether or not in the circumstances of the present case the notice under section 34 issued on 25th July 1958 was barred by time.\"\n\nThe Division Bench, in its turn, referred the said queation to a Full Bench. The Full Bench, inter alia, held that s. 34(1A) was a special provision whereas s. 34(1)(a) was a general provision and that, as the escaped income of the year 1945-46 was governed by s. 34(1A), no notice under s. 34(1)(a) could be issued. In the result, after expressing that view, the Full Bench sent back the case to the single Judge before whom it came in the first instance. Dua, J., who heard the petition, following the view expressed by the Full Bene.Ii, allowed the petition. The appellants, thereafter, preferred a Letters Patent appeal against that order to a Division Bench, which dismissed the same. Civil Appeal No. 494 of 1964 has been !iled by the Revenue by special leave against the order of the Full Bench dated September 8, 1961, and Civil Appeal No. 495 of 1964 has been filed, by certificate, by the Revenue against the order of the Division Bench confirming that of Dua, J.\n\nAt the outset it will be convenient to read the material pro' visions of s. 34 of the Act as amended by the Finance Act, 1956, and by the Income-tax (Amendment) Act, 1959.\n\nStction 34. (I} If-\n\n(a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that y(:ar, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed.\n\nhe may in cases falling under clause (a) at any time ................ serve on the asscssee .............. .. a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22 and may proceed to assess or reassess such income .. profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall,\n\nSO> far as may be, apply accordingly as if the notice were a notice issued under that sub-section :\n\nProvided that the Income-tax Officer shall not issue a notice under clause (a) of sub-section (1)-\n\n(i) for eny year prior to the year ending on the 31st day of March, 1941;\n\n(ii) for any year, if eight years have elapsed after the expiry of that year, unless the income, profits or gains\n\n.-' ,..,, -1 B ,\n\nchargeable to income-tax which have escaped assessment or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief under this Act, or the Joss or depreciation allowance which has been computed in excess, amount to, or likely to amount to, one Jakh of rupees or more in the aggregate, either for that year, or for that year and any other year or years after which or after each of which eight years have elapsed, not being a year or years ending before the 3 Ist day of March, 1941;\n\n(iii) for any year, unless he has recorded his reasons for doing so, and, in any case falling under clause (ii), unless the Central Board of Revenue, and, in any other case, the Commissioner, is satisfied on such reasons recorded that it is a fit case for the issue of such notice :\n\n(IA). If in the case of any assessee, the Income-tax Officer has reason to believe :-\n\n(i) that income, profits or gains chargeable to incometax have escaped assessment for any year in respect of which the relevant previous year falls wholly or partly within the period beginning on the !st day of September, 1939, and ending on the 31st day of March, 1946, and\n\n(ii) that the income, profits or gains which have so escaped assessment for any such year or years amount, or are likely to amount, to one Jakh of rupees or more,\n\nhe may, notwithstanding that the period of eight years or, as the case may be, four years specified in sub-section (I) has expired in respect thereof, serve on the assessee ....................... . a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22, and may proceed to assess or re-assess the income, profits or gains of the assessee for all or any of the years referred to in clause (i), and thereupon the provisions of this Act [excepting those contained in clauses (i) and (iii) of the proviso to sub-section (I) and in subsections (2) and (3) of this section], shall, so far as may be, apply accordingly :\n\nProvided that the Income-tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so, and the Central Board of Revenue is satisfied on such reasons. recorded that it a fit ease for the issue of such notice :\n\nProvided further that no such notice shall be issued after the 3.lst day of March, J 956 •\n\n(IB) Where any assessee to whom a notice has been issued under clause (a) of sub-section (I) or under sub-section (IA) for any of the years ending on the 31st day of March of the years 1941 to 1948 inclusive applies to the Central Board of Revenue at any time within six months from the receipt of such notice or before the assessment or re-assessment is made, whichever is earlier, to have the matters relating to his asessment settled, the Central Board of Revenue may, after considering the terms of settlement proposed and subject to the previous approval of the Central Government, accept the terms of such settlement, and, if it does so, shall make an order in accordance with the terms of such settlement specifying among other things the sum of money payable by the assessee.\n\n(IC) Any sum specified in a settlement arrived at in pursuance of sub-section (IB) may be recovered and any penalty for default in making payment of any such sum may be imposed and recovered in the manner provided in Chapter VI.\n\n(ID) Any settlement arrived at under this section shall be conclusive as to the matters stated therein; and no person, whose assessments have been so settled, shall he entitled to re-open in any proceeding for the recovery of any sum under this Act or in any subsequent assessment or re- E .assessment proceeding relating to any tax chargeable under this Act or in any other proceeding whatsoever before any court or other authority any matter which forms part of such settlement.\n\n(4) A notice under clause (a) of sub-section (I) may he issued at any time notwithstanding that at the time of the issue of the notice the period of eight years specified in that sub-section before its amendment by clause (a) of section 18 of the Finance Act, 1956 (18of1956) had expired in respect of the year to which the notice relates.\n\nSub-section (I A) was inserted in s. 34 of the Act by the Income-tax (Amendment) Act, 1954, and it came into force on July 17, 1954. aause (a) of sub-s. (I) of s. 34 was amended by the Finance Act, 1956, with effect from April I, 1956. Sub-section (IB) of s. 34, which was inserted by the Income-tax (Amendment) Act, 1954, was also amended by the Finance Act, 1956, whereunder the wordi\n\n\"to whom a notice has been issued under clause (a) of sub-section (I) or under sub-section (IA) for any of the years ending on the 31st day of March of the years 1941 to 1948 inclusive\" were substituted for the words \"to whom a notice has been issued under sub-\n\n... '\n\n.. ,\n\n' ......\n\nsection (lA).\" Sub-section (4) was added by the Income-tax (Amendment) Act, 1959.\n\nThe gist of the relevant provisions may be stated thus : Under s. 34(l)(a), before it was amended by the Finance Act, 1956, in the case of concealed income a notice for re-assessment could be issued within 8 years of the end of the relevant year; and after the said amendment, notice in respect of the said income could be issued at any time, but it was subject to three conditions, namely,\n\n(i) it would not be issued for any year prior to the year ending on March 31, 1941, (ii) such concealed income amounted to one lakh of rupees or more in the aggregate, and (iii) the Income-tax Officer gave reasons for doing so and obtained the consent of the Central Board of Revenue. Sub-section (IA) of s. 34 did not undergo any change after the Finance Act, 1956. Escaped assessment for any year in respect of which the relevant previous year fell within the period beginning on September I, 1939, and ending on March 31, 1946, could be reached by issuing a notice thereunder: but, it was subject to the condition that the income which escaped assessment for any year amounted to or was likely to amount to rupees one lakh or more; it was subject to a further condition that no such notice should be issued after March 31, 1956. Sub-section (lB) of s. 34, as amended in 1956, enabled an assessee to whom a notice has been issued under cl. (a) of sub-s. (l) or sub-s. (IA) for any of the years ending on March 31 of the years 1941 to 1948 inclusive, to apply to the Central Board of Revenue for a settlement of the amount of tax payable by him, Sub-section (4), which was inserted in 1959, emphasized the fact that a notice could be issued under s. 34(1)(a), notwithstanding that the time of 8 years had expired before the Finance Act, 1956, came into force.\n\nWe may at this stage notice the arguments advanced by learned counsel on the interpretation of the said provisions.\n\nThe arguments of Mr. S. T. Desai, learned counsel for the\n\nevenue, may be summarized thus : The terms of s. 34(l)(a), after its amendment by the Finance Act, 1956, are clear and unambiguous and the scope of the expression \"at any time\" cannot be curtailed by construction. So construed, proceedings for re-assessment in respect of escaped income contemplated by the said clause can be initiated without any restriction of time. The legislative history of the fasciculus of sub-sections, namely, sub-ss. (l)(a), (IA), (lB), (1 C) and (ID) of s. 34, supports the said construction and explains the relative scope of s. 34(l)(a) and s. 34(1A)-the former, as amended by the Finance Act, 1956, operated after s. 34(1A) ceased to operate so far as the escaped concealed income of war years was concerned. The amendment of s. 34(1B) by the said Act and the introduction of s. 34(4) by the Income-tax (Amendment) Act, 1959, reinforces the said construction, namely,\n\nthat the amended s. 34(1)(a) lifted the ban of limitation also in respect of the escaped income of the war year,. The retention of s. 34(1A) on the statute became necessary as proceedings taken thereunder were pending at the time the Finance Act, 1956, came into force and the consequentiai provisions, such as, s. 34(1 B) etc .•\n\nith whlch s. 34(1A) \"as integrally connected could not be applied 1f the latter was omitted.\n\nFurther, the said sub-sections still applied to incomes falling under s. 34( l)(b) in respect of war years.\n\nIn any view. it must have been retained in superabundant caution and that fact could not restrict the scope of an otherwise clearly expressed provision, ri::., s. 34(1)(a). The construction accepted by the High Court led to the anomalous position of the Legislature prescribing a shorter period of limitation in the case of tax-evaders during the war years and no p!riud of limitation for evaders of such income during the pre-war and post-war years.\n\nThis could not have been the intention of the Legislature, as the evasion of tax during the war years was comparatively of larger amounts than during the other periods and for that very reason it has passed the Taxation of Income (Investigation Commission) Act, 1947, which was declared to be void by this Court. This contention was accepted by the Bombay and Calcutta High Courts in Laxminarayan R. Rachi v. Income-tax Officer, Poona (') and Mandanlal Jajodia v. Income-tax Officer, Dist. IT(l), Calcutta (2) respectively,\n\nMr. Palkhivala, learned counsel for the respondents, answered this criticism thus.\n\nIn a taxing Act one has to look merely what is clearly stated and, if the interpretation is open to doubt, the construction most beneficial to the subject must be adopted. Section 34(l)(a), before it was amended in 1956, provided for the genus out of which, hy the Income-tax (Amendment) Act, 1959, the species of ' 34(1A) was carved out. Whiles. 34(1 )(a) was a general provision. s. 34(1A) was a special provision. On the principle of genera/ia specia/ibus 11011 deroganr, the field covered by s. 34(1A) should be excluded from that covered by s. 34(1)(a). If that was the legal position before the 1956 amendment, the argument proceeded. the same position would continue thereafter, as Parliament retained s. 34(1A), along with ih provisos. as it stood before the amendment and amended only s. 34(1)(a). The lifting of the han of limitation, therefore, sh<>uld, on the basis of the said dnctrine, he confined to the field co1ered bys. 34(1)(a) hcfore the amendment. If Parliament intended to do away with the period of limitation in respect of the escaped incomes during the \\\\ar period, it would not h:ive retained s. 34(1A) on the statute hook; for, in that event, it would serve no purpose. It \"ould be wrong to say that it ceased to be operative after April I, 1956, for the period of limitation would still apply to proceedings in respect of escaped incomes of the war years.\n\nSub-s. (4) added ins. 34 in the year 1959 ands. 34(16), as amended\n\n(I) (1964) s2 r:r.R. 2s4.\n\n(2) (1965) 58 I.T.R. 693.\n\n' .\n\nin 1956, would not throw any light on the question, but in a way would support the view that they were concerned only with the escaped incomes covered by s. 34(\\)(a), excluding thereform those covered bys. 34(1A). The argument based on the alleged anomaly led nowhere and indeed the retention of s. 34(1A) on the statute book was intentionally done, as the Parliament, having already placed a particular class of assessees under a special and heav.y burden, did not think fit to make any provision which was likely to harass them further. The ambiguity in the section, if any, should go for the benefit of the tax-payer and not the tax-gatherer.\n\nThis argument was accepted by the Madhya Pradesh and Gujarat High Courts in Rustomji v. Income-tax Officer, Special Investigation Circle, lndore(I), and Mathurdas Govinddas v. G. N. Gadgil, Income-tax Officer, Special Investigation Office, Ahmedabad (2).\n\nBefore we advert to the said arguments, it will be convenient to notice the relevant rules of construction. The classic statement of Rowlatt, J., in Cape Brandy Syndicate v. I.R.C. (3). still holds the field. It reads :\n\n\"In a Taxing Act one has to look merely at what is clearly said. There is no room for any intendment.\n\nThere is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.\"\n\nTo this may be added a rider : in a case of reasonable doubt, the construction most . beneficial to the subject is to be adopted.\n\nBut even so, the fundamental rule of construction is the same for all statutes, whether fiscal or otherwise. \"The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the court as to what is just or expedient.\" The expressed intention must guide the court.\n\nAnother rule of construction which is relevant to the present enquiry is expressed in the maxim, generalia specialibus non derogant, which means that when there is a conflict between a general and a speciai provision, the latter shall prevail. The said principle has been stated in Craies on Statute Law, 5th Edn., at P. 205, thus :\n\n\"The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to 1 affect only the other parts of the statute to which it may . properly apply.\"\n\n(I). [1964] 54 I.T.R. 461\n\n(2) [1965] 561.T.R. 6;!1!\n\n(3) [1921] I K.B. 64, 71.\n\nBut this rule of construction is not of universal application. It A is subject to the condition that there is nothing in the general provision, expressed or implied, indicating an intention to the contrary : see Maxwell on Interpretation of Statutes, I Ith Edn., at pp. 168-169. When the words of a section are clear, but its scope is sought to be curtailed by construction, the approach suggested by Lord Coke in lleydons case('), yield better results : B \"To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the whole Act : to consider, according to Lord Coke :\n\n(1) What wasthelawbeforetheAct was passed; (2) What was the mischief or defect for which the law had not provided ; (3) What remedy Parliament has appointed : and c\n\n(4) Thereasonoftheremedy.\"\n\nWith these rules of construction in mind, let us now tackle the problem raised in this case.\n\nUnder s. 34{1)(a), after it was amended by the Finance Act, 1956, a notice in respect of an escaped concealed income could be issued at any time. The terms of cl.\n\n(a) and the expression \"at any time\" are clear and unambiguous and, if there is nothing in the Act detracting from the width of the said terms, it is clear that a notice can be issued at any time in respect of the concealed income of any year not being a year ending before March 31, 1941. But s. 34(1A) provides for the issue of notice in respect of escaped income of the previous years within the period beginning on September I, 1939, and ending on March 31, 1946.\n\nDoes this sub-section detract from the generality of s. 34(l)(a) ? The history of the said provision may usefully be noticed. As we have stated earlier, the Parliament passed the Taxation of Income (Investigation Commission) Act, 1947, mainly to catch the escaped incomes of the war profiteers. This Court in Suraj Mall Moh ta and Co. v. A. V. Viswanatha Sastri (2) and Muthiah v. C.1.T. (l) held that s. 5(4) and 5(1) of the said Act became void on the commencement of the Constitution as offending Art. 14 thereof. The first decision led to the insertion of sub-ss. (lA) to (lD) ins. 34 by the Income-tax (Amendment) Act, 1954, with effect from July 17, 1954. The object of the Amending Act was to provide for the assessment or re-assessment of persons who had, to a substantial extent, evaded payment of taxes during the war years and for matters connected therewith. But at the time sub-s. (IA) was inserted in s.34, the period of limitation provided with regard to issue of notices under s. 34(l)(a) was 8 years and for cases falling under s. 34(1)(b) it was 4 years; but, as the Income-true (Amendment) Act, 1954, came into force only on July 17, 1954, tk said periods of limitation prescribed in respect of escaped concealed incomes during the said period had run out except in respect\n\n(1) [!584! 3 Rep. 7b.\n\n(2) [1955) t S.C.R. 448.\n\n(3) (1955] 2 S.C.R. 1247.\n\n• ,,.,\n\nI .. \\\n\nE - F\n\nof one or two years. So, with the twin object of extending the time and expediting the assessment, the second proviso was introduced therein to the effect that no such notice should be issued after March 31, 1956. But, notwithstanding the said Act, presumably notices could not have been issued against all the evaders of tax with incomes of rupees one lakh or more during the said period. Parliament also wanted to bring to tax escaped concealed incomes during the period not covered by the said years. With that object, in 1956 s. 34 was amended by the Finance Act, 1956, by which it was provided that notice under s. 34(l)(a) can be issued at any time. But sub-s. (IA) was retained, including the second proviso. This amendment, along with the other amendments, made by the said Act came into force on April I, 1956. In 1959, the said section was again amended by the Indian Income-tax (Amendment) Act, 1959.\n\nUnder sub-s. (4), as amended by the 1959 amendment Act, notice under sub-s. (!)(a) might be issued at any time notwithstanding that at the time of the issue of notice the period of 8 years specified in that sub-section before its amendment by the Finance Act, 1956, had expired in respect of the year to which the notice related. This amendment was necessitated by the judgments of the Bombay and ca!cutta High Courts in Debi Dutt v. T. Belan(I) and S. C. Prashar v. Vasantsen (2) respectively holding that if the right of the Income-tax Officer to reopen an asessment was barred under the law for the time being in force, no subsequent enlargement of the time could revive such right in the absence of express words or necessary intendment. Sub-section ( 4) was added to s. 34 to make it abundantly clear that notice under s. 34(1)(a) could be issued at any time notwithstanding that the said right was barred before the Amendment Act of 1956. This history of the legislation leaves no room for doubt that the intention of the Legislature was to bring the escaped concealed income of rupees one lakh and more to tax without any time limit. Before the 1956 Act was passed, the period of limitation prescribed for proceeding against concealed incomes of rupees one lakh and more during the war years and the earlier years had expired. The Legislature stepped in to prevent evasion of taxes on such incomes and lifted the ban of limitation in respect thereof, subject to certain conditions.\n\nBut the crucial question is, whether the Legislature by making the relevant amendments has succeeded to effectuate its intention.\n\nTo state it differently, do the amended provisions carry out its intention ?\n\nSection 34(l)(a), as it now stands on the statute book, expressly states that in cases falling under cl. (a) of sub-s. (I) notice can be served thereunder on an assessee at any time. The terms of s. 34(a) read with the 2nd proviso, take in the concealed incomes of all the\n\n(I) [1959] 35 I.T.R. 781.\n\n(2) [1956] 29 I.T.R. 857\n\nyears commencing from the year ending on March 31, 1941. It does not exclude the incomes of the war years, but the said incomes are sought to be excluded on the principle of genera/ia specia/ibus non derogant.\n\nAs we ha\\'e pointed out earlier, the said doctrine embodies a rule of construction, but it has no universal application.\n\nTo invoke it, the general and special provisions shall occupy the same field.\n\nIn this case, hoth during the period between the amendments of 1954 and 1956 and thereafter they occupied different fields.\n\nBy July 17, 1954, when sub-s. (IA) was introduced ins. 34, no proceedings under s. 34(l)(a) could be initiated except for the assessment year 1946-47 in respect of the previous years that fell within the period beginning on September J, 1939, and ending on March 31, 1946, for they were barred under the unamended section. Sub-section (IA), therefore, practically governed a situation that was not governed by the provisions of s. 34\\l)(a).\n\nIt was intended to catch escaped incomes of the war years which were out of the reach of s. 34(1 )(a). It is not, therefore, appropriate to describe suh-s. (IA) as one carved out of sub-s. (l)(a) or to call it a species of which sub-s. (a)(!) is the genus.\n\nSub-section (IA) operated where sub-s. (l)(a) practically ceased to function.\n\nNow, coming to the period after the Finance Act, 1956, was passed, i.e., after April I, 1956, a different situation arose. The extended period given under the second proviso to sub-s. (IA) expired on March 31, 1956. Thereafter, sub-s. (IA) ceased to be operative in the sense that no notice could thereafter be given thereunder. It worked itself out. The Legislature could have extended the period under the second proviso to sub-s. (IA), but it did not do so. It did not give a further lease of life to it; instead it removed the period of limitation under sub-s. (l)(a), as sub-s. (IA) had become practically defunct. The wide phraseology of sub-s. (l)(a) takes in all the escaped concealed incomes during all the years commencing from 1941 and confers a power on the Income-tax Officer to give notice thereunder in respect of the said income~ without any bar of limitation. There is, therefore, no conflict after April I, 1956, between sub-s. (l)(a) and sub-s. (IA), as the latter ceased to be operative.\n\nThere is another way of looking at the problem. Sub-section (IA) does not really prescribe any period of limitation. It enables the Income-tax Officer to take proceedings within a particular time, though the period of limitation had expired. Jn this view, no question of carving out a species out of a genus arises. It conferred a special power on the Income-tax Officer and the said power expired on April I. l 956.\n\nThere is yet another way of looking at the problem. The nonobstante clause in sub-s. (IA) indicates that it was enacted to operate notwithstanding that the period of 8 years had expired. The said\n\n>-- ---.. ,\n\nsub-section served its purpose only when the period of 8 years governed a notice under sub-s. (!)(a). But when that bar of limitation was removed, sub-s. (IA) had become otiose .\n\nSub-section (IB), as amended by the Finance Act of 1956, also throws some light on the interpretation of s. 34. Before it was amended, an assessee to whom a notice had been issued under sub-s. (l)(a) could apply to the Central Board of Revenue for settlement of the amount of tax payable by him. After the amendment, an assessee to whom a notice was given under sub-s. (!)(a) and under sub-s. (IA) for any of the years ending on March 31, 1941 to 1948 could apply for such a relief to the Central Board of Revenue. The years 1941 to 1948 are the war years. This sub-section, therefore, assumes that notice could be issued in respect of the war years under sub-s. (l)(a). The notice contemplated by sub-s. (IB) could only be a notice after the amendment of 1956, for such notice could not have been issued earlier under sub-s. (!)(a) in respect of the said years. The notice under sub-s. (IA) obviously refers to the notice issued before the amendment of 1956 and pending disposal.\n\nSub-section (4) added by the Indian Income-tax (Amendment) Act, 1959, also reinforces the said construction. As indicated earlier, that sub-section was added to get over the legal objection that proceedings barred before 1956 were not revived underthe 1956 Act.\n\nIt is true that sub-s. (4) refers only to sub-s. (!)(a), but the subsection indicates that the Legislature assumed that proceedings after 1956 could only be taken under sub-s. (!)(a).\n\nIt was asked, with some plausibility, if the Legislature assumed that sub-s. (IA) ceased to be operative, why it was retained along with its proviso prescribing a period of limitation in the amended section. Though no new notices could be issued under that sub-· section after April I, 1956. notices aleady issued before that date were pending. They would be disposed of in the manner prescribed by sub-ss. (IA), (IB), (IC) and (ID) of s. 34. All the said sub-sections formed an integral code. The Legislature, presumably, intended to keep the said-sub-sections whereunder proceedings had already been initiated and make available to the said proceedings the procedure prescibed under the said provisions.\n\nIt may also be that sub-s. (IA) was kept iq super-abundant caution.\n\nWhatever that may be, it cannot, in the circumstances mentioned by us, detract from the clear provisions of sub-s. (l)(a).\n\n--1 We have carefully gone through the judgments of the various H High Courts, namely, Bombay, Madhya Pradesh, Gujarat and Calcutta, cited at the Bar.\n\nWe received considerable help from the reasonings contained in the said judgments. As we have in the course of the judgment dealt \\vith the conflicting reasons given by M 10 Sup. C.1./66-12.\n\nthe High Courts, \\\\e do not think it necessary to consider each of the A four judgments in detail.\n\nFor the reasons mentioned above, we agree with the conclusion arrived at by the Bombay and Calcutta High Courts in preference to those reached by the Madhya Pradesh and Gujarat High Courts.\n\nIn the result, the order of the High Court is set aside and the 8 petition filed under Art. 226 of the Constitution is dismissed. The appeals are allowed with costs one hearing fee.\n\nAppeal\" allowed.", "total_entities": 171, "entities": [{"text": "COMMISSIONER OF INCOME-TAX, PATIALA & ORS", "label": "PETITIONER", "start_char": 14, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, PATIALA & ORS", "offset_not_found": false}}, {"text": "M/s. SHAHZADA NAND & SONS & ORS", "label": "RESPONDENT", "start_char": 58, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "M/s. SHAHZADA NAND & SONS & ORS", "offset_not_found": false}}, {"text": "K. SUBBA RAO. M. HIDAYATULLAH", "label": "JUDGE", "start_char": 111, "end_char": 140, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 145, "end_char": 159, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 166, "end_char": 193, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 34(l)(a)", "label": "PROVISION", "start_char": 219, "end_char": 230, "source": "regex", "metadata": {"linked_statute_text": "JJj\n\nIndian Income-tax Act, 1922", "statute": "JJj\n\nIndian Income-tax Act, 1922"}}, {"text": "Finance Act 1956", "label": "STATUTE", "start_char": 249, "end_char": 265, "source": "regex", "metadata": {}}, {"text": "S. 34(1A)", "label": "PROVISION", "start_char": 271, "end_char": 280, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1956", "statute": "the Finance Act 1956"}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 376, "end_char": 385, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1956", "statute": "the Finance Act 1956"}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 420, "end_char": 428, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1956", "statute": "the Finance Act 1956"}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 551, "end_char": 559, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1956", "statute": "the Finance Act 1956"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 571, "end_char": 598, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 761, "end_char": 772, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 923, "end_char": 928, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "March 31,\n\n1946", "label": "DATE", "start_char": 1136, "end_char": 1151, "source": "ner", "metadata": {"in_sentence": "By sub-s. (IA) power was given to the Income-tax authorities to issue notice in respect of escaped income of the previous years within the period September 1, 1939 to March 31,\n\n1946."}}, {"text": "By the Finance Act 1956", "label": "STATUTE", "start_char": 1153, "end_char": 1176, "source": "regex", "metadata": {}}, {"text": "April 1, 1956", "label": "DATE", "start_char": 1194, "end_char": 1207, "source": "ner", "metadata": {"in_sentence": "By the Finance Act 1956 with effect from April 1, 1956 s. 34(1) (a) was amended so that notices in respect of \"\"\"!"}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 1208, "end_char": 1216, "source": "regex", "metadata": {"linked_statute_text": "By the Finance Act 1956", "statute": "By the Finance Act 1956"}}, {"text": "July 25, 1958", "label": "DATE", "start_char": 1345, "end_char": 1358, "source": "ner", "metadata": {"in_sentence": "-0n July 25, 1958 tho Income-tax Officer again issued a notice to the respondents calling upon them to file a return for tho as3CSSment year 1945-46."}}, {"text": "Centrll Board of Revenue", "label": "ORG", "start_char": 1508, "end_char": 1532, "source": "ner", "metadata": {"in_sentence": "An appeal to the Centrll Board of Revenue by some of respondents failed."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1602, "end_char": 1610, "source": "regex", "metadata": {"linked_statute_text": "By the Finance Act 1956", "statute": "By the Finance Act 1956"}}, {"text": "s. 34(l)(a)", "label": "PROVISION", "start_char": 1721, "end_char": 1732, "source": "regex", "metadata": {"linked_statute_text": "By the Finance Act 1956", "statute": "By the Finance Act 1956"}}, {"text": "March 31, 1956", "label": "DATE", "start_char": 1895, "end_char": 1909, "source": "ner", "metadata": {"in_sentence": "I income of the said war years was governed by ' 34(lA), whereunder notices could be issued only up to March 31, 1956."}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 2093, "end_char": 2104, "source": "regex", "metadata": {"linked_statute_text": "By the Finance Act 1956", "statute": "By the Finance Act 1956"}}, {"text": "s. 34( IA)", "label": "PROVISION", "start_char": 2256, "end_char": 2266, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 2312, "end_char": 2323, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 2436, "end_char": 2447, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34( IA)", "label": "PROVISION", "start_char": 2612, "end_char": 2622, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 2806, "end_char": 2815, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 2828, "end_char": 2839, "source": "regex", "metadata": {"statute": null}}, {"text": "S 34(1)(a)", "label": "PROVISION", "start_char": 2917, "end_char": 2927, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 2971, "end_char": 2980, "source": "regex", "metadata": {"statute": null}}, {"text": "March 31, 195 6", "label": "DATE", "start_char": 3060, "end_char": 3075, "source": "ner", "metadata": {"in_sentence": "Again wheri S 34(1)(a) was amended with effect from April 1, 1956 s. 34(1A) had practically ceased to operate as no notices under it could be issued after March 31, 195 6."}}, {"text": "s. 34(1)", "label": "PROVISION", "start_char": 3182, "end_char": 3190, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 4649, "end_char": 4654, "source": "regex", "metadata": {"statute": null}}, {"text": "F S. T. Desai", "label": "LAWYER", "start_char": 5337, "end_char": 5350, "source": "ner", "metadata": {"in_sentence": "F S. T. Desai, R. Ganapathy Tyer and R. N. Sachthey, for the appellant."}}, {"text": "R. Ganapathy Tyer", "label": "LAWYER", "start_char": 5352, "end_char": 5369, "source": "ner", "metadata": {"in_sentence": "F S. T. Desai, R. Ganapathy Tyer and R. N. Sachthey, for the appellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 5374, "end_char": 5388, "source": "ner", "metadata": {"in_sentence": "F S. T. Desai, R. Ganapathy Tyer and R. N. Sachthey, for the appellant."}}, {"text": "N. A. Palkhiva", "label": "LAWYER", "start_char": 5410, "end_char": 5424, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhiva/a, l. M. Nanavati, T. A. Ramachandran, J. B.\n\nDadachanji, 0.", "canonical_name": "G N. A. Palkhivala"}}, {"text": "M. Nanavati", "label": "LAWYER", "start_char": 5431, "end_char": 5442, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhiva/a, l. M. Nanavati, T. A. Ramachandran, J. B.\n\nDadachanji, 0.", "canonical_name": "M. Nanavati"}}, {"text": "T. A. Ramachandran", "label": "JUDGE", "start_char": 5444, "end_char": 5462, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhiva/a, l. M. Nanavati, T. A. Ramachandran, J. B.\n\nDadachanji, 0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 5486, "end_char": 5495, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the respon- •• G N. A. Palkhivala, J. B. Dadachanji, 0.", "canonical_name": "C. Mathur H"}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 5500, "end_char": 5515, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the respon- •• G N. A. Palkhivala, J. B. Dadachanji, 0.", "canonical_name": "Ravirtder Narain"}}, {"text": "G N. A. Palkhivala", "label": "JUDGE", "start_char": 5536, "end_char": 5554, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the respon- •• G N. A. Palkhivala, J. B. Dadachanji, 0.", "canonical_name": "G N. A. Palkhivala"}}, {"text": "M. Nanavali", "label": "LAWYER", "start_char": 5641, "end_char": 5652, "source": "ner", "metadata": {"in_sentence": "[, M. Nanavali, J. B. Dadachanji, 0.", "canonical_name": "M. Nanavati"}}, {"text": "B. Dadachanji", "label": "LAWYER", "start_char": 5657, "end_char": 5670, "source": "ner", "metadata": {"in_sentence": "[, M. Nanavali, J. B. Dadachanji, 0.", "canonical_name": "J.B. Dadachanji"}}, {"text": "Ravirtder Narain", "label": "LAWYER", "start_char": 5689, "end_char": 5705, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravirtder Narain, for intervener No.", "canonical_name": "Ravirtder Narain"}}, {"text": "N. A. Palkhivala", "label": "LAWYER", "start_char": 5730, "end_char": 5746, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala, R. J. Ko/ah, J.B. Dadachanji, 0.", "canonical_name": "G N. A. Palkhivala"}}, {"text": "R. J. Ko", "label": "LAWYER", "start_char": 5748, "end_char": 5756, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala, R. J. Ko/ah, J.B. Dadachanji, 0."}}, {"text": "J.B. Dadachanji", "label": "LAWYER", "start_char": 5761, "end_char": 5776, "source": "ner", "metadata": {"in_sentence": "N. A. Palkhivala, R. J. Ko/ah, J.B. Dadachanji, 0.", "canonical_name": "J.B. Dadachanji"}}, {"text": "C. Mathur H", "label": "LAWYER", "start_char": 5781, "end_char": 5792, "source": "ner", "metadata": {"in_sentence": "C. Mathur H and Rll'linder Narain, for intervener No.", "canonical_name": "C. Mathur H"}}, {"text": "Rll'linder Narain", "label": "LAWYER", "start_char": 5797, "end_char": 5814, "source": "ner", "metadata": {"in_sentence": "C. Mathur H and Rll'linder Narain, for intervener No."}}, {"text": "D. N. Mukherjee", "label": "LAWYER", "start_char": 5839, "end_char": 5854, "source": "ner", "metadata": {"in_sentence": "D. N. Mukherjee, for intervener No."}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 5937, "end_char": 5946, "source": "ner", "metadata": {"in_sentence": "/ '\n\nA The judgment of the Court was delivered by\n\nSobba Rao, J. These two appeals, one by special leave and the other by certificate, raise the question whether notice can be issued at any time for reassessment under s. 34(1)(a), as amended by the Finance Act, 1956, of the Indian Income-tax Act, 1922, hereinafter called the Act, in respect of a concealed income to which s. 34(1A) thereof applied."}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 6104, "end_char": 6115, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 6135, "end_char": 6152, "source": "regex", "metadata": {}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 6161, "end_char": 6188, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 6260, "end_char": 6269, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Shahzada and Sons", "label": "ORG", "start_char": 6329, "end_char": 6346, "source": "ner", "metadata": {"in_sentence": "Messrs. Shahzada and Sons, the lst respondent in both the appeals, was an undivided Hindu Family firm and it was assessed in that capacity up to the assessment year 1945-46."}}, {"text": "March 26, 1954", "label": "DATE", "start_char": 6647, "end_char": 6661, "source": "ner", "metadata": {"in_sentence": "On March 26, 1954, the Income-tax authorities issued a notice to the members of the clefunct Hindu undivided family under s. 34(1)(a) of the Act i11 respect of the assessment year 1945-46 on the ground that certain •ncome of the said family had escaped assessment."}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 6766, "end_char": 6777, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 7532, "end_char": 7543, "source": "regex", "metadata": {"statute": null}}, {"text": "Act was amended by the Finance Act, 1956", "label": "STATUTE", "start_char": 7551, "end_char": 7591, "source": "regex", "metadata": {}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 7683, "end_char": 7694, "source": "regex", "metadata": {"linked_statute_text": "the Act was amended by the Finance Act, 1956", "statute": "the Act was amended by the Finance Act, 1956"}}, {"text": "Central Board of Revenue", "label": "ORG", "start_char": 8020, "end_char": 8044, "source": "ner", "metadata": {"in_sentence": "Respondents 2 to 5, who were the members of the said undivided Hindu family, appealed to the Central Board of Revenue for redress without any success."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 8118, "end_char": 8126, "source": "regex", "metadata": {"linked_statute_text": "the Act was amended by the Finance Act, 1956", "statute": "the Act was amended by the Finance Act, 1956"}}, {"text": "High Court of Punjab", "label": "COURT", "start_char": 8154, "end_char": 8174, "source": "ner", "metadata": {"in_sentence": "226 of the Constitution in the High Court of Punjab challenging the notice on various grounds."}}, {"text": "s. 34(l)(a)", "label": "PROVISION", "start_char": 8265, "end_char": 8276, "source": "regex", "metadata": {"linked_statute_text": "the Act was amended by the Finance Act, 1956", "statute": "the Act was amended by the Finance Act, 1956"}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 8382, "end_char": 8391, "source": "regex", "metadata": {"linked_statute_text": "the Act was amended by the Finance Act, 1956", "statute": "the Act was amended by the Finance Act, 1956"}}, {"text": "section 34", "label": "PROVISION", "start_char": 8667, "end_char": 8677, "source": "regex", "metadata": {"statute": null}}, {"text": "25th July 1958", "label": "DATE", "start_char": 8688, "end_char": 8702, "source": "ner", "metadata": {"in_sentence": "The writ petition\n\ncame up before a single Judge of the High Court, who referred the following question to a larger Bench :\n\n\"Whether or not in the circumstances of the present case the notice under section 34 issued on 25th July 1958 was barred by time.\""}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 8840, "end_char": 8849, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 8882, "end_char": 8893, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 8986, "end_char": 8995, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 9013, "end_char": 9024, "source": "regex", "metadata": {"statute": null}}, {"text": "Dua", "label": "JUDGE", "start_char": 9182, "end_char": 9185, "source": "ner", "metadata": {"in_sentence": "Dua, J., who heard the petition, following the view expressed by the Full Bene."}}, {"text": "September 8, 1961", "label": "DATE", "start_char": 9533, "end_char": 9550, "source": "ner", "metadata": {"in_sentence": "iled by the Revenue by special leave against the order of the Full Bench dated September 8, 1961, and Civil Appeal No."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 9773, "end_char": 9778, "source": "regex", "metadata": {"statute": null}}, {"text": "Act as amended by the Finance Act, 1956", "label": "STATUTE", "start_char": 9786, "end_char": 9825, "source": "regex", "metadata": {}}, {"text": "section 22", "label": "PROVISION", "start_char": 10049, "end_char": 10059, "source": "regex", "metadata": {"linked_statute_text": "the Act as amended by the Finance Act, 1956", "statute": "the Act as amended by the Finance Act, 1956"}}, {"text": "section 22", "label": "PROVISION", "start_char": 10666, "end_char": 10676, "source": "regex", "metadata": {"linked_statute_text": "the Act as amended by the Finance Act, 1956", "statute": "the Act as amended by the Finance Act, 1956"}}, {"text": "31st day of March, 1941", "label": "DATE", "start_char": 11085, "end_char": 11108, "source": "ner", "metadata": {"in_sentence": "he may in cases falling under clause (a) at any time ................ serve on the asscssee .............. .. a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22 and may proceed to assess or reassess such income .. profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall,\n\nSO> far as may be, apply accordingly as if the notice were a notice issued under that sub-section :\n\nProvided that the Income-tax Officer shall not issue a notice under clause (a) of sub-section (1)-\n\n(i) for eny year prior to the year ending on the 31st day of March, 1941;\n\n(ii) for any year, if eight years have elapsed after the expiry of that year, unless the income, profits or gains\n\n.-' ,..,, -1 B ,\n\nchargeable to income-tax which have escaped assessment or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief under this Act, or the Joss or depreciation allowance which has been computed in excess, amount to, or likely to amount to, one Jakh of rupees or more in the aggregate, either for that year, or for that year and any other year or years after which or after each of which eight years have elapsed, not being a year or years ending before the 3 Ist day of March, 1941;\n\n(iii) for any year, unless he has recorded his reasons for doing so, and, in any case falling under clause (ii), unless the Central Board of Revenue, and, in any other case, the Commissioner, is satisfied on such reasons recorded that it is a fit case for the issue of such notice :\n\n(IA)."}}, {"text": "3 Ist day of March, 1941", "label": "DATE", "start_char": 11748, "end_char": 11772, "source": "ner", "metadata": {"in_sentence": "he may in cases falling under clause (a) at any time ................ serve on the asscssee .............. .. a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22 and may proceed to assess or reassess such income .. profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall,\n\nSO> far as may be, apply accordingly as if the notice were a notice issued under that sub-section :\n\nProvided that the Income-tax Officer shall not issue a notice under clause (a) of sub-section (1)-\n\n(i) for eny year prior to the year ending on the 31st day of March, 1941;\n\n(ii) for any year, if eight years have elapsed after the expiry of that year, unless the income, profits or gains\n\n.-' ,..,, -1 B ,\n\nchargeable to income-tax which have escaped assessment or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief under this Act, or the Joss or depreciation allowance which has been computed in excess, amount to, or likely to amount to, one Jakh of rupees or more in the aggregate, either for that year, or for that year and any other year or years after which or after each of which eight years have elapsed, not being a year or years ending before the 3 Ist day of March, 1941;\n\n(iii) for any year, unless he has recorded his reasons for doing so, and, in any case falling under clause (ii), unless the Central Board of Revenue, and, in any other case, the Commissioner, is satisfied on such reasons recorded that it is a fit case for the issue of such notice :\n\n(IA)."}}, {"text": "st day of September, 1939", "label": "DATE", "start_char": 12347, "end_char": 12372, "source": "ner", "metadata": {"in_sentence": "st day of September, 1939, and ending on the 31st day of March, 1946, and\n\n(ii) that the income, profits or gains which have so escaped assessment for any such year or years amount, or are likely to amount, to one Jakh of rupees or more,\n\nhe may, notwithstanding that the period of eight years or, as the case may be, four years specified in sub-section (I) has expired in respect thereof, serve on the assessee ....................... ."}}, {"text": "31st day of March, 1946", "label": "DATE", "start_char": 12392, "end_char": 12415, "source": "ner", "metadata": {"in_sentence": "st day of September, 1939, and ending on the 31st day of March, 1946, and\n\n(ii) that the income, profits or gains which have so escaped assessment for any such year or years amount, or are likely to amount, to one Jakh of rupees or more,\n\nhe may, notwithstanding that the period of eight years or, as the case may be, four years specified in sub-section (I) has expired in respect thereof, serve on the assessee ....................... ."}}, {"text": "section 22", "label": "PROVISION", "start_char": 12895, "end_char": 12905, "source": "regex", "metadata": {"statute": null}}, {"text": "3.lst day of March, J 956", "label": "DATE", "start_char": 13588, "end_char": 13613, "source": "ner", "metadata": {"in_sentence": "recorded that it a fit ease for the issue of such notice :\n\nProvided further that no such notice shall be issued after the 3.lst day of March, J 956 •\n\n(IB) Where any assessee to whom a notice has been issued under clause (a) of sub-section (I) or under sub-section (IA) for any of the years ending on the 31st day of March of the years 1941 to 1948 inclusive applies to the Central Board of Revenue at any time within six months from the receipt of such notice or before the assessment or re-assessment is made, whichever is earlier, to have the matters relating to his asessment settled, the Central Board of Revenue may, after considering the terms of settlement proposed and subject to the previous approval of the Central Government, accept the terms of such settlement, and, if it does so, shall make an order in accordance with the terms of such settlement specifying among other things the sum of money payable by the assessee."}}, {"text": "Central Government", "label": "ORG", "start_char": 14184, "end_char": 14202, "source": "ner", "metadata": {"in_sentence": "recorded that it a fit ease for the issue of such notice :\n\nProvided further that no such notice shall be issued after the 3.lst day of March, J 956 •\n\n(IB) Where any assessee to whom a notice has been issued under clause (a) of sub-section (I) or under sub-section (IA) for any of the years ending on the 31st day of March of the years 1941 to 1948 inclusive applies to the Central Board of Revenue at any time within six months from the receipt of such notice or before the assessment or re-assessment is made, whichever is earlier, to have the matters relating to his asessment settled, the Central Board of Revenue may, after considering the terms of settlement proposed and subject to the previous approval of the Central Government, accept the terms of such settlement, and, if it does so, shall make an order in accordance with the terms of such settlement specifying among other things the sum of money payable by the assessee."}}, {"text": "section 18", "label": "PROVISION", "start_char": 15343, "end_char": 15353, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 15361, "end_char": 15378, "source": "regex", "metadata": {}}, {"text": "s. 34", "label": "PROVISION", "start_char": 15489, "end_char": 15494, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "July 17, 1954", "label": "DATE", "start_char": 15573, "end_char": 15586, "source": "ner", "metadata": {"in_sentence": "Sub-section (I A) was inserted in s. 34 of the Act by the Income-tax (Amendment) Act, 1954, and it came into force on July 17, 1954."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 15615, "end_char": 15620, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 15640, "end_char": 15657, "source": "regex", "metadata": {}}, {"text": "s. 34", "label": "PROVISION", "start_char": 15711, "end_char": 15716, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 15802, "end_char": 15819, "source": "regex", "metadata": {}}, {"text": "s. 34(l)(a)", "label": "PROVISION", "start_char": 16275, "end_char": 16286, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 16317, "end_char": 16334, "source": "regex", "metadata": {}}, {"text": "March 31, 1941", "label": "DATE", "start_char": 16672, "end_char": 16686, "source": "ner", "metadata": {"in_sentence": "The gist of the relevant provisions may be stated thus : Under s. 34(l)(a), before it was amended by the Finance Act, 1956, in the case of concealed income a notice for re-assessment could be issued within 8 years of the end of the relevant year; and after the said amendment, notice in respect of the said income could be issued at any time, but it was subject to three conditions, namely,\n\n(i) it would not be issued for any year prior to the year ending on March 31, 1941, (ii) such concealed income amounted to one lakh of rupees or more in the aggregate, and (iii) the Income-tax Officer gave reasons for doing so and obtained the consent of the Central Board of Revenue."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 16909, "end_char": 16914, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 16952, "end_char": 16969, "source": "regex", "metadata": {}}, {"text": "September I, 1939", "label": "DATE", "start_char": 17086, "end_char": 17103, "source": "ner", "metadata": {"in_sentence": "Escaped assessment for any year in respect of which the relevant previous year fell within the period beginning on September I, 1939, and ending on March 31, 1946, could be reached by issuing a notice thereunder: but, it was subject to the condition that the income which escaped assessment for any year amounted to or was likely to amount to rupees one lakh or more; it was subject to a further condition that no such notice should be issued after March 31, 1956."}}, {"text": "March 31, 1946", "label": "DATE", "start_char": 17119, "end_char": 17133, "source": "ner", "metadata": {"in_sentence": "Escaped assessment for any year in respect of which the relevant previous year fell within the period beginning on September I, 1939, and ending on March 31, 1946, could be reached by issuing a notice thereunder: but, it was subject to the condition that the income which escaped assessment for any year amounted to or was likely to amount to rupees one lakh or more; it was subject to a further condition that no such notice should be issued after March 31, 1956."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 17456, "end_char": 17461, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 17852, "end_char": 17863, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 17929, "end_char": 17946, "source": "regex", "metadata": {}}, {"text": "S. T. Desai", "label": "OTHER_PERSON", "start_char": 18104, "end_char": 18115, "source": "ner", "metadata": {"in_sentence": "The arguments of Mr. S. T. Desai, learned counsel for the\n\nevenue, may be summarized thus : The terms of s. 34(l)(a), after its amendment by the Finance Act, 1956, are clear and unambiguous and the scope of the expression \"at any time\" cannot be curtailed by construction."}}, {"text": "s. 34(l)(a)", "label": "PROVISION", "start_char": 18188, "end_char": 18199, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 18228, "end_char": 18245, "source": "regex", "metadata": {}}, {"text": "s. 34", "label": "PROVISION", "start_char": 18624, "end_char": 18629, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "s. 34(l)(a)", "label": "PROVISION", "start_char": 18697, "end_char": 18708, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 18713, "end_char": 18722, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 18753, "end_char": 18770, "source": "regex", "metadata": {}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 18787, "end_char": 18796, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "s. 34(1B)", "label": "PROVISION", "start_char": 18899, "end_char": 18908, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "s. 34(4)", "label": "PROVISION", "start_char": 18949, "end_char": 18957, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 19059, "end_char": 19070, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 19173, "end_char": 19182, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 19276, "end_char": 19293, "source": "regex", "metadata": {}}, {"text": "s. 34(1 B)", "label": "PROVISION", "start_char": 19354, "end_char": 19364, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 19383, "end_char": 19392, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "s. 34( l)(b)", "label": "PROVISION", "start_char": 19537, "end_char": 19549, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 19736, "end_char": 19747, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Bombay and Calcutta High Courts", "label": "COURT", "start_char": 20377, "end_char": 20408, "source": "ner", "metadata": {"in_sentence": "This contention was accepted by the Bombay and Calcutta High Courts in Laxminarayan R. Rachi v. Income-tax Officer, Poona (') and Mandanlal Jajodia v. Income-tax Officer, Dist."}}, {"text": "Palkhivala", "label": "OTHER_PERSON", "start_char": 20557, "end_char": 20567, "source": "ner", "metadata": {"in_sentence": "IT(l), Calcutta (2) respectively,\n\nMr. Palkhivala, learned counsel for the respondents, answered this criticism thus."}}, {"text": "Section 34(l)(a)", "label": "PROVISION", "start_char": 20809, "end_char": 20825, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 21019, "end_char": 21028, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 21133, "end_char": 21142, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 21183, "end_char": 21194, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 21326, "end_char": 21336, "source": "ner", "metadata": {"in_sentence": "the same position would continue thereafter, as Parliament retained s. 34(1A), along with ih provisos."}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 21346, "end_char": 21355, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 21431, "end_char": 21442, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 21756, "end_char": 21765, "source": "regex", "metadata": {"statute": null}}, {"text": "s2", "label": "PROVISION", "start_char": 22101, "end_char": 22103, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(\\)(a)", "label": "PROVISION", "start_char": 22303, "end_char": 22314, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 22445, "end_char": 22454, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh and Gujarat High Courts", "label": "COURT", "start_char": 22830, "end_char": 22868, "source": "ner", "metadata": {"in_sentence": "This argument was accepted by the Madhya Pradesh and Gujarat High Courts in Rustomji v. Income-tax Officer, Special Investigation Circle, lndore(I), and Mathurdas Govinddas v. G. N. Gadgil, Income-tax Officer, Special Investigation Office, Ahmedabad (2)."}}, {"text": "Rowlatt", "label": "JUDGE", "start_char": 23185, "end_char": 23192, "source": "ner", "metadata": {"in_sentence": "The classic statement of Rowlatt, J., in Cape Brandy Syndicate v. I.R.C. (3)."}}, {"text": "Coke", "label": "OTHER_PERSON", "start_char": 25256, "end_char": 25260, "source": "ner", "metadata": {"in_sentence": "When the words of a section are clear, but its scope is sought to be curtailed by construction, the approach suggested by Lord Coke in lleydons case('), yield better results : B \"To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the whole Act : to consider, according to Lord Coke :\n\n(1) What wasthelawbeforetheAct was passed; (2) What was the mischief or defect for which the law had not provided ; (3) What remedy Parliament has appointed : and c\n\n(4) Thereasonoftheremedy.\""}}, {"text": "s. 34", "label": "PROVISION", "start_char": 25771, "end_char": 25776, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 25812, "end_char": 25829, "source": "regex", "metadata": {}}, {"text": "s. 34(1A)", "label": "PROVISION", "start_char": 26223, "end_char": 26232, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "s. 34(l)(a)", "label": "PROVISION", "start_char": 26451, "end_char": 26462, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "s. 5(4) and 5(1)", "label": "PROVISION", "start_char": 26800, "end_char": 26816, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 26898, "end_char": 26905, "source": "regex", "metadata": {"statute": null}}, {"text": "s.34", "label": "PROVISION", "start_char": 27313, "end_char": 27317, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(l)(a)", "label": "PROVISION", "start_char": 27391, "end_char": 27402, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1)(b)", "label": "PROVISION", "start_char": 27443, "end_char": 27454, "source": "regex", "metadata": {"statute": null}}, {"text": "(1955] 2 S.C.R. 1247", "label": "CASE_CITATION", "start_char": 27745, "end_char": 27765, "source": "regex", "metadata": {}}, {"text": "s. 34", "label": "PROVISION", "start_char": 28321, "end_char": 28326, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 28346, "end_char": 28363, "source": "regex", "metadata": {}}, {"text": "s. 34(l)(a)", "label": "PROVISION", "start_char": 28408, "end_char": 28419, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "April I, 1956", "label": "DATE", "start_char": 28596, "end_char": 28609, "source": "ner", "metadata": {"in_sentence": "This amendment, along with the other amendments, made by the said Act came into force on April I, 1956."}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 28951, "end_char": 28968, "source": "regex", "metadata": {}}, {"text": "Bombay and ca!cutta High Courts", "label": "COURT", "start_char": 29090, "end_char": 29121, "source": "ner", "metadata": {"in_sentence": "This amendment was necessitated by the judgments of the Bombay and ca!cutta High Courts in Debi Dutt v. T. Belan(I) and S. C. Prashar v. Vasantsen (2) respectively holding that if the right of the Income-tax Officer to reopen an asessment was barred under the law for the time being in force, no subsequent enlargement of the time could revive such right in the absence of express words or necessary intendment."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 29476, "end_char": 29481, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "s. 34(1)(a)", "label": "PROVISION", "start_char": 29528, "end_char": 29539, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act, 1956", "statute": "the Finance Act, 1956"}}, {"text": "Section 34(l)(a)", "label": "PROVISION", "start_char": 30403, "end_char": 30419, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(a)", "label": "PROVISION", "start_char": 30599, "end_char": 30607, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(l)(a)", "label": "PROVISION", "start_char": 31347, "end_char": 31358, "source": "regex", "metadata": {"statute": null}}, {"text": "September J, 1939", "label": "DATE", "start_char": 31491, "end_char": 31508, "source": "ner", "metadata": {"in_sentence": "34, no proceedings under s. 34(l)(a) could be initiated except for the assessment year 1946-47 in respect of the previous years that fell within the period beginning on September J, 1939, and ending on March 31, 1946, for they were barred under the unamended section."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 31695, "end_char": 31700, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34(1 )(a)", "label": "PROVISION", "start_char": 31798, "end_char": 31810, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act, 1956", "label": "STATUTE", "start_char": 32082, "end_char": 32099, "source": "regex", "metadata": {}}, {"text": "April I. l 956", "label": "DATE", "start_char": 33456, "end_char": 33470, "source": "ner", "metadata": {"in_sentence": "It conferred a special power on the Income-tax Officer and the said power expired on April I. l 956."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 33968, "end_char": 33973, "source": "regex", "metadata": {"statute": null}}, {"text": "March 31, 1941 to 1948", "label": "DATE", "start_char": 34292, "end_char": 34314, "source": "ner", "metadata": {"in_sentence": "a) and under sub-s. (IA) for any of the years ending on March 31, 1941 to 1948 could apply for such a relief to the Central Board of Revenue."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 35729, "end_char": 35734, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat", "label": "GPE", "start_char": 36304, "end_char": 36311, "source": "ner", "metadata": {"in_sentence": "1 We have carefully gone through the judgments of the various H High Courts, namely, Bombay, Madhya Pradesh, Gujarat and Calcutta, cited at the Bar."}}, {"text": "Calcutta", "label": "GPE", "start_char": 36316, "end_char": 36324, "source": "ner", "metadata": {"in_sentence": "1 We have carefully gone through the judgments of the various H High Courts, namely, Bombay, Madhya Pradesh, Gujarat and Calcutta, cited at the Bar."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 36915, "end_char": 36923, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_393_399_EN", "year": 1966, "text": "A .; •\n\nE -\n\nKEHAR SINGH & ORS •\n\nDEWAN SINGH & ORS.\n\nJanuary 21, 1966\n\n[K. SUBBA RAO, M. HIDAYATULLAH AND R.S. BACHAWAT, JJ.]\n\nCus1on1-Jats of Amritsar District-Adoptio11r--Diffefence between adoption as heir and formal adoption-Test of formal adoption-Severence of ties with natural family-Rlght of person adopted to the property of co/. laterals of adopting family.\n\nThe revenue authorities sanctioned mutation of the lands left by S, an Aulakh Jat of Tehsil Ajnala in Amritsar District of the Punjab, in favour of the appellants who were collaterals of S in the 8th degree. A suit for possession of the said lands was filed against them by the respondents who claimed the lands as descendants of K.\n\nAccording to them K Wa5 the daughter's son of M, a collateral of S in the 5th clegrce, and had been formally adopted by M as his son.\n\nThe trial court held that the adoption of K was the usual customary appointment of an heir and that by the custom Of Jats in Amritsar District an appointed heir was entitled to succeed collaterally in the family of his adoptive father anc!. consequently K was the preferential heir to S.\n\nThe first appellate court agreed with the trial court that the adoption of K was the customary appointment of an hei\"r, but rejected K's claim to be preferential heir on various grounds.\n\nThe High Court in second appeal held that under the customary law K, as the adopted son of M was entitled to succeed collaterally in his adoptive father's family; on this view it restored the trial Court's decree.\n\nThe appellants came to this Court on certificate.\n\nHELD: (i) There is a presumption that the entries in Riwaj-i-am are correct and if there is a conflict between Rattigan's digest and the Riwaj-iam, normally the Riwaj-i-am of the locality prevails.\n\n(ii) Under the customary law of the Jats in Amritsar District when the customary adoption is formal and the adopted son is completely transplanted in the family of his adoptive father,. he is entitled to succeed to the collateral relatives of the adoptive father. This finding is in harmony with the Riwaj-i-am of the Amritsar District, i.s supported by judicial deciswns, and is not in conflict with Art. 49 of Rattigan's Digest. On the other hand if the customarjr adoption amounts to a mere appointment of an heir, the appointed heir is not entitled to succeed to the coUateral relatives of the adoptive father.\n\nThis finding is in harmony with Art. 49 of the Rattigan'• Digest and the judicial decisions, and is consistent with the Riwaj-i-am properly interpreted in the light of the decided cases.\n\n[398 C, DJ\n\n(iii) It is a question of fact in each case whether the adoption by a Jat in the Amritsar District is formal or informal. The adoption is formal if the parties manifest a clear intention that there should be a complete change of the family of the adopted son, so that he ceases to be a member of his natural family and lose his right of collateral succession in the family and at the same time becomes a member of the adoplive father's family and acquires a right of collateral succeion in the family.\n\nThe losse.. of the right of collateral succession in the natural family is strong evidence to show that the adoption is formal and effects a complete change\n\nin the family.\n\nOn the other hand retention of the ri$ht of collateral succession in his natural family indicates that the adopl!on was informal by way of customary appointment of an heir.\n\n[398 E-GJ\n\n(iv) In the present case the courts bad found, and the finding was amply supported by materials on the record, that the adoption of K was no more than a mere appointment of an heir by the custom of rhe Jats in the District of Amritsar.\n\nThe onus to show otherwise was on the re&- pondents.\n\nThe fact lhat K succeeded to the lands left by his natural brother and by one of the collaterals of his narural family stroogly indicated rhat the adoption of M did nor effect a change in his family. K's adoption not being a formal one, he could not be a preferential heir to S.\n\n[398 H; 399 DJ\n\nCase law referred to.\n\nOvII. APPELLATE JURISDICllON : Civil Appeal J-; o. 429 of c 1963.\n\nAppeal from the judgment and decree dated October 6, 1958 of the Punjab High Court in Civil Regular Second Appeal No.\n\n340 of 1953.\n\nGopa/ Singh, for the appellants and respondent No. 11.\n\nN. N. Keswani, for respondent No. I.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. : The parties arc Aulakh Jats of Tehsil Ajnala in Amritsar District, and are governed by customary law in matters of succession and adoption. 'The dispute concerns succession to the property of one Santa Singh alias Din Mohammad. Santa Singh has not been heard of for a long time and is presumed to be dead.\n\nThe revenue authorities sanctioned mutation of the lands left by him in favour of the defendants, who are his collaterals of the 8th degree.\n\nOne Megh Singh was the collateral of Santa Singh in the 5th degree.\n\nMegh Singh died more than 50 years ago. Before his death, he adopted his daughter's son, one Kala Singh. Kala Singh has died leaving his sons, Dewan Singh and Gian Singh as his heirs. Dewan Singh and Gian Singh instituted a suit in the Court of the Subordinate Judge, First Class, Ajnala praying for a decree for possession of the lands left by Santa Singh and alleging that Megh Singh adopted Kala Singh as his son, took him out of his natural family, transplanted him completely in the family of Mcgb Singh and bestowed on him the rights of a natural son, according to the custom by which the parties were governed, Kala Singh was entitled to succeed as a rcversionary heir in the family of his adoptive father and was the preferential heir of Santa Singh.\n\nThe contesting defendants alleged that the adoption of Kala Singh amounted to the appointment of an heir only and they denied that according to custom Kala Singh was the reversionary heir of Santa\n\nSingh or entitled to inherit his lands.\n\n!'\"'\\\n\n~ ..\n\n., •\n\n' ,\n\n• • ,\n\nThe Subordinate Judge, Ajnala and the District Judge, Amritsar concurrently held that the adoption of Kala Singh was the usual customary appointment of an heir. The trial Court also held that by the custom of Jats in Amritsar District an appointed heir was entitled to succeed collaterally in the family of his adoptive father and consequently, Kala Singh was the preferential heir of Santa Singh. On appeal, the District Judge, Amritsar set aside the decree passed by the trial Court, and dismissed the suit. He held that according to custom, the adoption of a daughter's son was not permissible and the adoption of Kala Singh was, therefore, invalid.\n\nHe also held that under the customary law an adopted son could not succeed collaterally in his adoptive father's family if he was a non-agnate, i.e., if he did not belong to the Got of his adoptive father. On second appeal, the High Court set aside the order of the District Judge, Amritsar, and restored the decree passed by the trial Court. The High Court, held that it was not open to the defendants to challenge the validity of the adoption of Kala Singh, as the point was not in issue between the parties, and under the customary law, Kala Singh, as the adopted son of Megh Singh, was entitled to succeed collaterally in his adoptive father's family .\n\nSome of the defendants now appeal to this Court on a certificate granted by the High Court.\n\nIn agreement with the High Court we hold that it is not open to the defendants to contend that the adoption of Kala Singh by Megh Singh was invalid. In the written statement, the defendants did not allege that Megh Singh had no power to adopt Kala Singh, as Kala Singh was the daughter's son of Megh Singh. As the validity of the adoption was not in issue, the parties had no opportunity to lead any evidence on the question whether by the special custom of the parties Megh Singh could lawfully adopt his daughter's son.·\n\nThe substantial point in controversy between the parties is whether by the custom governing the fats of Amritsar District Kala Singh was entitled to succeed collaterally in the family of his adoptive father. Some general customs as to adoption are found to exist in the Punjab, and they are collected in Rattigan's Digest of Customary Law. Some of the customs observed in the several Districts and Tehsils of the Punjab are collected in the Riwaj-i-am.\n\nThere is a presumption that the entries in the Riwaj-i-am are correct, and if there is a conflict between Rattigan's Digest and the Riwaj-i-am, normally the Riwaj-i-am of the locality prevails, see Jai Kaur v. Sher Singh (I), Sa/ig Ram v. Munshi Ram (2).\n\nJudicial decisions furnish reliable instances in which the custom in question was recognised or departed from.\n\nOral and documentary evidence of mutations and other transactions in which the custom was\n\n(I) (1960] 3 S.C.R. 979.\n\n(2) [1962] l S.C.R. 470, 474-475.\n\nrecognised or departed from are also relevant material to prove or disprove the custom.\n\nA customary adoption in the Punjab is ordinarily no more than a mere appointment of an heir creating a personal relationship between the adoptive father and the appointed heir only, see Mela Singh v. Gurdas (1). There is no tie of kinship between the appointed heir and the collaterals of the adoptive father. The appointed heir docs not acquire the right to succeed collaterally in the adoptive father's family.\n\nThe status of the appointed heir is thus materially different from that of a son adopted under the Hindu law.\n\nThe general custom negativing the right of the appointed heir to succeed collaterally in the family of his adoptive father is stated in Art. 49 of Rattigan's Digest of Customary Law, 13th Edn .. p. 572 thus :\n\n\"49.\n\nNor, on the other hand, does the heir acquire a right to succeed to the collateral relatives of the person who appoints him, where no formal adoption has taken place, inasmuch as the relationship established between him and the appointer is a purely personal one.\"\n\nThe rule in Art. 49 does not apply to a formal adoption by the customary method. The customary formal adoption completely severs the connection of the adopted son with his natural family and transplants him from his natural family to the adoptive family.\n\nSuch an adoption confers on the adopted son the right of collateral succession in the adoptive father's family and takes away the right of collateral succession in the natural family.\n\nThe formal adoption may be made in accordance with custom and by observing the customary forms, and it is not necessary to comply with the rules of Hindu law in the matter of ritual or otherwise.\n\nSee Abdur Rehman v. Ra1<f111bir Singh (2), Warya111a11 v. Kanshi Ram (l).\n\nThe Manual of Customary Law of the Amritsar District by H. D. Craik in 1914 records the following question and answcr-\n\n\"Question 91-Can an adopted son succeed colla- G terally in the family of his adoptive father ?\n\nAnswer 91.\n\nAll the tribes state that an adopted son succeeds collaterally in the family of his adoptive father, with the exception of Brahmans and Khatris of Neshta, who say that he docs not do so.\n\nThe rule defined by the courts, however, is that an adopted son has no right to ----\n\n(1) Jl92lJ I.LR 3 Lah. 362 F.B.\n\n(2) 11949] 51 P.L.R. 119. tl) 11922] I.LR. 3 Lah. 17\n\n.. ..... ,,, •\n\n• '\n\n• •\n\n• ,, •\n\n, • •\n\nsucceed in this manner. The latest ruling on this point is P.R. 107 of 1913 in which it was held that among Jat Sikhas of the Taran Taran tehsil an adopted son, appointed by the usual customary method, does not succeed to collaterals as his adoptive father's representative.\"\n\nThe English translation of the Urdu version of the Riwaj-1-am of the Amritsar District for the year 1940 (Ex. P. C/l) records the following question and answer :- ·\n\nNo. of question\n\nQuestion\n\nCan an adopted son succeed collaterally in the family of his adoptive father ?\n\nAnswer\n\nAll the tribes, yes.\n\nSee Schedule I for relevant mutations.\n\nSee Schedule II for judgments in Civil cases.\n\nSchedule I annexed to Ex. P.C./l gives 17 instances of mutations on collateral successions of adopted sons in the family of the adoptive father. Schedule ll annexed to Ex. P.C./l is not printed in the paper book. The English version of the Rhvaj-i-am of the Amritsar District published by A. MacFARQUHAR in 1947 gives the list of the relevant judicial decisions bearing on question\n\n90. The decided cases show that where the adoption is by way of a customary appointment of an heir, the adopted son does not succeed collaterally in the adoptive father's family.\n\nThe latest Riwaj-i-am refers to the Court rulings without disapproval. In the light of the decided cases, the entries in the Riwaj-i-am recognising the adopted son's right of collateral succession in the adoptive father's family should be taken to apply to cases of customary formal adoptions and not to cases of adoptions by way of customary appointments of heirs.\n\nThe relevant judicial decisions may be briefly noticed.\n\nIn Jowala Singh v. Mt. Lachmi and others(!) (Gil Jats of Tehsil Ajnala, Amritsar), Mangal Singh v. Ti/ok Singh (2) (Sohel Jats of Tehsil Ajnala, Amritsar), Chetu v. Jawand Singh and others (3) (Sikh Jats of Tehsil Taran Taran, Amritsar), it was held that an heir appointed under the customary law of Jats in the District of Amritsar does not acquire a right to succeed to the collaterals of the adoptive father, and in Jndar Singh v. Mt. Gurdevi (4) (Amritsar Jats), it was held that he was not a lineal descendant of the adoptive father within the meaning of s. 59 of the Punjab Tenancy Act XVI of 1887.\n\n(I) 14 P.R. of 1884.\n\n(3) 107 P.R. of 1913.\n\n(2) 61 P.R. of 1894.\n\n(4) A.1.R. 1930 Lah. 897.\n\nConversely, the appointed heir retains the right of collateral sue- A cession in his natural family.\n\nSee Jagat Singh v. Jshar Singh () (Amritsar Jats). On the other hand, according to the customs of Jats in the Amritsar District, in a case of a formal adoption effecting a complete transplantation of the adopted son in the adoptive father's family, the.adopted son is entitled to inherit collaterally in the adoptive father'& family. See Teju v. Kesar Singh (2), affirming B the decision of Kapur, J. in Teja Singh v. Kesar Singh (3).\n\nWe thus find that under the customary law of Jats in Amritsar District, where the customary adoption is formal and the adopted son is completely transplanted in the family of his adoptive father,\n\nlie is entitled to succeed to the collateral relatives of the adoptive father. This finding is in harmony with the Riwaj-i-am of the Amrit- C sar District, is supported by judicial decisions, and is not in conflict with Art. 49 of Rattigan's Digest.\n\nOn the other hand, if the customary adoption amounts to a mere appointment of an heir, the appointed heir is not entitled to succeed to the collateral relatives of the adoptive father. This finding is in harmony with Art. 49 of Rattigan's Digest and the judicial decisions, and is con- D sistent with the Riwaj-i-am properly interpreted in the light of the decided cases.\n\nJn Teju v. Kesar Singh (2), it was said that the ordinary rule in Amritsar District is that the adoption is complete. Jn other cases, it was said that ordinarly such an adoption is by way of a customary appointment of an heir. The true rule appears to be that it is a question of fact in each case whether the adoption by a Jat in the Amritsar District is formal or informal. The adoption is formal if the parties manifest a clear intention that there should be a complete change of the family of the adopted son, so that he ceases to be a member of his natural family and loses his right of collateral succession in that family and at the same time becomes a member of the adoptive father's family and acquires a right of collateral succession in the family.\n\nThe loss of the right of collateral succession in the natural family is strong evidence to show that the adoption is formal and effects a complete change in the family. On the other hand, retention of the right of collateral succession in hi3 natural family indicates that the adoption was informal by way of customary appointment of an heir.\n\nThe onus is upon the plaintiffs-respondents to prove that the adoption of Kala Singh was formal and effected a complete change in his family.\n\nOn the death of the adoptive father Megh Singh, Kala Singh inherited the properties of Megh Singh, and on the death of Kala Singh, his sons, Gian Singh and Dewan Singh, inherited those properties.\n\nBut these successions arc consistent with the\n\n(ll I.LR 1l Lah. 645.\n\n(2) A.l.R. 1954 Punjab 30.\n\n(3) A.I.R. 1951 Punjab 117.\n\n~ ..\n\n. ~-'\"'\n\n\\ .; '\n\nllJ\n\n~·•\n\n' .J\n\ninformal ppointment of Kala Singh as an heir to Megh Singh.\n\nAccording to custom, the appointed heir succeeds to the properties left by the adoptive father, and on the death of the appointed heir, his male issue succeeds: see Rattigan's Digest of Customary Law, 13th Edn., Arts. 52 and 54, pp. 572-573. The succession of Kala Singh as the reversionary heir of one Mst. Bhagan is cited as an illustration of collateral succession of the adopted son in his adoptive father's family in the list of mutations given in Sch. 1 of the Riwaj-i-am of 1940 (Ex. P.C./l). But the oral testimony on the record of this case discloses that Mst. Bhagan, who was the widow of a predeceased son of Megh Singh, was given some land by Megh Singh for her maintenance, and on her death, Kala Singh succeeded to this land. It will appear, therefore, that Mst.\n\nBhagan got a life estate in this land, and on her death, the land reverted to Kala Singh as the adopted son of Megh Singh. The succession of Kala Singh to this land is, therefore not an instance of collateral succession of Kala Singh in his adoptive father's family, and this was fairly conceded by learned counsel for the respondents. Considering all the circumstances of the case, the trial\n\nCourt and the first Appellate Court concurrently found that the adoption of Kala Singh was by way of customary appointment of an heir to Megh Singh. On second appeal, the High Court did not interfere with this finding. The finding is amply supported by the materials on the record. It appears that after his adoption Kala Singh succeeded to the lands left by one Makhan, his natural brother and by one Hira Singh, his ollateral in his natural family. These collateral successions m the natural family strongly indicate that the adoption of Kala Singh did not effect a change in his family. The adoption of Kala Singh was no more than a mere appointment of an heir and by the custom of the fats in the District of Amritsar he was not entitled to succeed collaterally in his adoptive father's family.\n\nFor this reason, the suit out of which this appeal arises, must be dismissed.\n\nThe District Judge, relying on Mangat Singh v. Tilok Singh(') held that as Kala Singh was not an agnate of his adoptive father, he was not entitled to succeed collaterally in his adoptive father's family, even assuming that his adoption was valid. This aspect of the matter was not considered by the High Court at all.\n\nIn view of our conclusions on other points, we do not express any opinion on this point.\n\nWe allow the appeal, set aside the decree passed by the High Court, restore the decree passed by the District Judge of Amritsar and direct that the suit be dismissed. The parties will pay and bear their own costs throughout.\n\nAppeal allowed.\n\n(1) 61 P.R. 1894.", "total_entities": 47, "entities": [{"text": "KEHAR SINGH & ORS", "label": "PETITIONER", "start_char": 13, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "KEHAR SINGH & ORS", "offset_not_found": false}}, {"text": "DEWAN SINGH & ORS", "label": "RESPONDENT", "start_char": 34, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "DEWAN SINGH & ORS", "offset_not_found": false}}, {"text": "January 21, 1966", "label": "DATE", "start_char": 54, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "January 21, 1966\n\n[K. SUBBA RAO, M. HIDAYATULLAH AND R.S. BACHAWAT, JJ.]"}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 73, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 87, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "R.S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 107, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Amritsar District", "label": "GPE", "start_char": 964, "end_char": 981, "source": "ner", "metadata": {"in_sentence": "The trial court held that the adoption of K was the usual customary appointment of an heir and that by the custom Of Jats in Amritsar District an appointed heir was entitled to succeed collaterally in the family of his adoptive father anc!."}}, {"text": "Rattigan", "label": "OTHER_PERSON", "start_char": 1693, "end_char": 1701, "source": "ner", "metadata": {"in_sentence": "HELD: (i) There is a presumption that the entries in Riwaj-i-am are correct and if there is a conflict between Rattigan's digest and the Riwaj-iam, normally the Riwaj-i-am of the locality prevails."}}, {"text": "Art. 49", "label": "PROVISION", "start_char": 2182, "end_char": 2189, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 49", "label": "PROVISION", "start_char": 2429, "end_char": 2436, "source": "regex", "metadata": {"statute": null}}, {"text": "Amritsar", "label": "GPE", "start_char": 3685, "end_char": 3693, "source": "ner", "metadata": {"in_sentence": "[398 E-GJ\n\n(iv) In the present case the courts bad found, and the finding was amply supported by materials on the record, that the adoption of K was no more than a mere appointment of an heir by the custom of rhe Jats in the District of Amritsar."}}, {"text": "N. N. Keswani", "label": "LAWYER", "start_char": 4325, "end_char": 4338, "source": "ner", "metadata": {"in_sentence": "N. N. Keswani, for respondent No."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 4407, "end_char": 4415, "source": "ner", "metadata": {"in_sentence": "I.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. : The parties arc Aulakh Jats of Tehsil Ajnala in Amritsar District, and are governed by customary law in matters of succession and adoption. '"}}, {"text": "Santa Singh alias Din Mohammad", "label": "OTHER_PERSON", "start_char": 4618, "end_char": 4648, "source": "ner", "metadata": {"in_sentence": "The dispute concerns succession to the property of one Santa Singh alias Din Mohammad."}}, {"text": "Santa Singh", "label": "OTHER_PERSON", "start_char": 4650, "end_char": 4661, "source": "ner", "metadata": {"in_sentence": "Santa Singh has not been heard of for a long time and is presumed to be dead.", "canonical_name": "Santa\n\nSingh"}}, {"text": "Megh Singh", "label": "OTHER_PERSON", "start_char": 4875, "end_char": 4885, "source": "ner", "metadata": {"in_sentence": "One Megh Singh was the collateral of Santa Singh in the 5th degree."}}, {"text": "Kala Singh", "label": "OTHER_PERSON", "start_char": 5033, "end_char": 5043, "source": "ner", "metadata": {"in_sentence": "Before his death, he adopted his daughter's son, one Kala Singh."}}, {"text": "Dewan Singh", "label": "RESPONDENT", "start_char": 5083, "end_char": 5094, "source": "ner", "metadata": {"in_sentence": "Kala Singh has died leaving his sons, Dewan Singh and Gian Singh as his heirs.", "canonical_name": "DEWAN SINGH & ORS"}}, {"text": "Gian Singh", "label": "OTHER_PERSON", "start_char": 5099, "end_char": 5109, "source": "ner", "metadata": {"in_sentence": "Kala Singh has died leaving his sons, Dewan Singh and Gian Singh as his heirs."}}, {"text": "Subordinate Judge, First Class, Ajnala", "label": "COURT", "start_char": 5189, "end_char": 5227, "source": "ner", "metadata": {"in_sentence": "Dewan Singh and Gian Singh instituted a suit in the Court of the Subordinate Judge, First Class, Ajnala praying for a decree for possession of the lands left by Santa Singh and alleging that Megh Singh adopted Kala Singh as his son, took him out of his natural family, transplanted him completely in the family of Mcgb Singh and bestowed on him the rights of a natural son, according to the custom by which the parties were governed, Kala Singh was entitled to succeed as a rcversionary heir in the family of his adoptive father and was the preferential heir of Santa Singh."}}, {"text": "Mcgb Singh", "label": "OTHER_PERSON", "start_char": 5438, "end_char": 5448, "source": "ner", "metadata": {"in_sentence": "Dewan Singh and Gian Singh instituted a suit in the Court of the Subordinate Judge, First Class, Ajnala praying for a decree for possession of the lands left by Santa Singh and alleging that Megh Singh adopted Kala Singh as his son, took him out of his natural family, transplanted him completely in the family of Mcgb Singh and bestowed on him the rights of a natural son, according to the custom by which the parties were governed, Kala Singh was entitled to succeed as a rcversionary heir in the family of his adoptive father and was the preferential heir of Santa Singh."}}, {"text": "Santa\n\nSingh", "label": "OTHER_PERSON", "start_char": 5891, "end_char": 5903, "source": "ner", "metadata": {"in_sentence": "The contesting defendants alleged that the adoption of Kala Singh amounted to the appointment of an heir only and they denied that according to custom Kala Singh was the reversionary heir of Santa\n\nSingh or entitled to inherit his lands.", "canonical_name": "Santa\n\nSingh"}}, {"text": "Subordinate Judge, Ajnala and the District Judge, Amritsar", "label": "COURT", "start_char": 5974, "end_char": 6032, "source": "ner", "metadata": {"in_sentence": "' ,\n\n• • ,\n\nThe Subordinate Judge, Ajnala and the District Judge, Amritsar concurrently held that the adoption of Kala Singh was the usual customary appointment of an heir."}}, {"text": "District Judge, Amritsar", "label": "COURT", "start_char": 6383, "end_char": 6407, "source": "ner", "metadata": {"in_sentence": "On appeal, the District Judge, Amritsar set aside the decree passed by the trial Court, and dismissed the suit."}}, {"text": "Punjab", "label": "GPE", "start_char": 8169, "end_char": 8175, "source": "ner", "metadata": {"in_sentence": "Some general customs as to adoption are found to exist in the Punjab, and they are collected in Rattigan's Digest of Customary Law."}}, {"text": "(1960] 3 S.C.R. 979", "label": "CASE_CITATION", "start_char": 8816, "end_char": 8835, "source": "regex", "metadata": {}}, {"text": "Art. 49", "label": "PROVISION", "start_char": 9623, "end_char": 9630, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 49", "label": "PROVISION", "start_char": 9981, "end_char": 9988, "source": "regex", "metadata": {"statute": null}}, {"text": "H. D. Craik", "label": "OTHER_PERSON", "start_char": 10738, "end_char": 10749, "source": "ner", "metadata": {"in_sentence": "The Manual of Customary Law of the Amritsar District by H. D. Craik in 1914 records the following question and answcr-\n\n\"Question 91-Can an adopted son succeed colla- G terally in the family of his adoptive father ?"}}, {"text": "Brahmans", "label": "OTHER_PERSON", "start_char": 11034, "end_char": 11042, "source": "ner", "metadata": {"in_sentence": "All the tribes state that an adopted son succeeds collaterally in the family of his adoptive father, with the exception of Brahmans and Khatris of Neshta, who say that he docs not do so."}}, {"text": "Neshta", "label": "GPE", "start_char": 11058, "end_char": 11064, "source": "ner", "metadata": {"in_sentence": "All the tribes state that an adopted son succeeds collaterally in the family of his adoptive father, with the exception of Brahmans and Khatris of Neshta, who say that he docs not do so."}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 11897, "end_char": 11907, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule II", "label": "PROVISION", "start_char": 11937, "end_char": 11948, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 11980, "end_char": 11990, "source": "regex", "metadata": {"statute": null}}, {"text": "A. MacFARQUHAR", "label": "OTHER_PERSON", "start_char": 12269, "end_char": 12283, "source": "ner", "metadata": {"in_sentence": "The English version of the Rhvaj-i-am of the Amritsar District published by A. MacFARQUHAR in 1947 gives the list of the relevant judicial decisions bearing on question\n\n90."}}, {"text": "s. 59", "label": "PROVISION", "start_char": 13527, "end_char": 13532, "source": "regex", "metadata": {"statute": null}}, {"text": "Tenancy Act XVI of 1887", "label": "STATUTE", "start_char": 13547, "end_char": 13570, "source": "regex", "metadata": {}}, {"text": "Kapur", "label": "JUDGE", "start_char": 14160, "end_char": 14165, "source": "ner", "metadata": {"in_sentence": "See Teju v. Kesar Singh (2), affirming B the decision of Kapur, J. in Teja Singh v. Kesar Singh (3)."}}, {"text": "Amrit- C sar District", "label": "ORG", "start_char": 14535, "end_char": 14556, "source": "ner", "metadata": {"in_sentence": "This finding is in harmony with the Riwaj-i-am of the Amrit- C sar District, is supported by judicial decisions, and is not in conflict with Art."}}, {"text": "Art. 49", "label": "PROVISION", "start_char": 14622, "end_char": 14629, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 49", "label": "PROVISION", "start_char": 14870, "end_char": 14877, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 52 and 54", "label": "PROVISION", "start_char": 16911, "end_char": 16926, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhagan", "label": "OTHER_PERSON", "start_char": 17007, "end_char": 17013, "source": "ner", "metadata": {"in_sentence": "Bhagan is cited as an illustration of collateral succession of the adopted son in his adoptive father's family in the list of mutations given in Sch."}}, {"text": "Bhagan", "label": "WITNESS", "start_char": 17269, "end_char": 17275, "source": "ner", "metadata": {"in_sentence": "Bhagan, who was the widow of a predeceased son of Megh Singh, was given some land by Megh Singh for her maintenance, and on her death, Kala Singh succeeded to this land."}}, {"text": "Makhan", "label": "OTHER_PERSON", "start_char": 18234, "end_char": 18240, "source": "ner", "metadata": {"in_sentence": "It appears that after his adoption Kala Singh succeeded to the lands left by one Makhan, his natural brother and by one Hira Singh, his ollateral in his natural family."}}, {"text": "Hira Singh", "label": "OTHER_PERSON", "start_char": 18273, "end_char": 18283, "source": "ner", "metadata": {"in_sentence": "It appears that after his adoption Kala Singh succeeded to the lands left by one Makhan, his natural brother and by one Hira Singh, his ollateral in his natural family."}}, {"text": "District Judge of Amritsar", "label": "COURT", "start_char": 19261, "end_char": 19287, "source": "ner", "metadata": {"in_sentence": "We allow the appeal, set aside the decree passed by the High Court, restore the decree passed by the District Judge of Amritsar and direct that the suit be dismissed."}}]}
{"document_id": "1966_3_400_411_EN", "year": 1966, "text": "Setty, who was presumably the karra of the Bhaskara family, by five members of the Addanki family, who presumably represented all the members of the Addanki family.\n\nTherefore, according to the Bhaskara defendants, the plaintiffs had no cause of action.\n\nAlternatively they contended that the suit was barred by time.\n\nIR the view which we take it would not be necessary to consider the second defence raised by the Addanki family.\n\nThe relevant portion of the karar reads thus : \"As disputes have arisen in our family regarding partition, it is not possible to carry on the business or to make investment in future.\n\nMoreover, you yourself have undertaken to discharge some of the debts payable by us in the coastal parts in connection with our private business.\n\nTherefore. from this day onwards we have closed the joint business. So, from this day onwards, we have given up (our) share in the machine etc., and in the business, and we have made over the same to you alone completely by way of adjustment. You yourself shall carry on the business without ourselves having anything to do with the profit and loss. Herefor, you have given up to us the property forming our Venatasubbayya's share which you have purchased and delivered possession of the same to us even previously.\n\nIn case you want to execute and deliver a proper document in respect of the share which we have given up to you, we shall at your own expense, execute and deliver a document registered.\"\n\nThis document on its face shows that the partnership business had come to an end and that the Addanki family had given up their share in the \"machine etc., in the business\" and had made it over to the Bhaskara family.\n\nIt also recites the fact that the Addanki family had already received certain property which was purchased hy the partnership presumably as that family's share in the partnership assets.\n\nThe argument advanced by Mr. Alladi Kuppuswami is that since the partnership assets included immovable property and the document records relinquishment by the members of the Addanki family of their interest in those assets, this document \\\\as compulsorily registerable under s. 17(1)(c) of the Registration Act and that as it was not registered it is inadmissible in evidence to prove the dissolution of the partnership as well as the settlement of accounts.\n\nDirect cases upon this point of the courts in India are few but before we examine them it would be desirable to advert to the provisions of the Partnership Act itself bearing on the interest of partners in partnership property. Section 14 provides that subject to contract between the partners the property of the firm includes all property originally brought into the stock of the firm or acquired\n\nj •\n\n• ;\n\n• •\n\nNARAYANAPPA v. KRISIITAPPA (Mudholkar, !.) 4 03\n\nby the firm for the purposes and in the course of the busiess .of the firm. Section 15 provides that such property shall ordmanly be held and used by the partners exclusively for the purposes of the business of the firm. Though that is so a firm has no legal existence under the Act and the partnership property will, therefore, be deemed to be held by the partners for the business of the partnership. Section 29 deals with the rights of a transferee of a partner's interest and sub-s. (I) provides that such a transferee will not have the same rights as the transferor partner but he would be entitled to receive the share of profits of his transferor and that he will be bound to accept the account of profits agreed to by the partners. Sub-section (2) provides that upon dissolution of the firm or upon a transferor-partner ceasing to be a partner the transferee would be entitled as against the remaining partners to receive the share of the assets of the firm to which his transferor was entitled and will also be entitled to an account as from the date of dissolution. Section 30 deals with the case of a minor admitted to the benefits of partnerships. Such minor is given a right to his share of the property of the firm and also a right to a share in the profits of the firm as may be agreed upon. But his share will be liable for the acts of the firm though he would not be personally liable for them. Sub-section (4) however, debars a minor from suing the partners for accounts or for his share of the property or profits of the firm save when severing his connection with the firm. It also provides that when he is severing his connection with the firm the court shall make a valuation of his share in the property of the firm. Sections 31 to 38 deal with incoming and outgoing partners. Some of the consequences of retirement of a partner are dealt with in sub-ss. (2) and (3) of s. 32 while some others are dealt with in ss. 36 and 37. Under s. 37 the outgoing partner or the estate of a deceased partner, in the absence of a contract to the contrary, would be, entitled to at the option of himself or his representatives to such share of profits made since he ceased to be a partner as may be attributable to the property of the firm or to interest at the rate of six per cent. per annum on the amount of his share in the property of the firm. The subject of dissolution of a firm and the consequences are dealt with in chapter VI, ss. 39 to 55. Of these the one which is relevant for this discussion is s. 48 which runs thus :\n\n\"In settling the accounts of a firm after dissolution the following rules shall, subject to agreement by the partners, be observed :\n\n(a) Losses, including deficiencies of capital, shall be paid first out of profits, next out of capital and, lastly, if necessary, by the partners individually in the proportions in which they were entitled to share profits.\n\n. •·-........,\n\n• l\n\nNARAYANAPPA v. KRISHTAPPA (Mudholkar, !.) 405\n\n\"When a debt due to a firm is got in no partner, has any definite share or interest in that debt; his right is merely to have the money so received applied, together with the other assets, in discharging the liabilities of the firm, and to receive his share of any surplus there may be when the liquidation has been completed.\"\n\nNo doubt this decision was subsequent to the enactment of the English Partnership Act of 1890. Even in several earlier cases, as for instance, Darby v. Darby(') the same view has been expressed. That was a case where two persons purchased lands on a joint speculation with their joint monies for the purpose of converting them into building plots and reselling them at a profit or loss. It was held by Kindersley V.C. that there was a conversion of the property purchased out and out and upon the death of one of the partners his share in the part of the unrealised estate passed to his personal representatives. After examining the earlier cases the learned Vice-Chancellor observed at p. 995 :\n\n\"The result then of the authorities may be thus stated :-Lord Thurlow was of opinion that a special contract was necessary to convert the land into personalty : and Sir W. Grant followed that decision. Lord Eldon on more than one occasion strongly expressed his opinion that Lord Thurlow's decision was wrong. Sir J. Leach clearly decided in three cases that there was conversion out and out : and Sir L. Shadwell, in the last case before him, clearly decided in the same way. That is the state of the authorities .\n\nNow it appears to me that, irrespective of authority, and looking at the matter with reference to principles well established in this Court, if partners purchase land merely for the purpose of their trade, and pay for it out of the partnership property, that transaction makes the property personalty, and effects a conversion out and out.\"\n\nHe then observed :\n\n\"This principle is clearly laid down by Lord Eldon in Crawshav v. Collins(2) and by Sir W. Grant in Featherstonhaugh v. Fenwick(') and the right of each partner to insist on a sale of all the partnership property, which arises from what is implied in the contract of partnership, is just as stringent as a special contract would be. If, then, this rule applies to ordinary stock-in-trade, why should it\n\n(1) 61 E.R. 992.\n\n(2) 15 Yes. 218.\n\n(3) 17 Yes. 298 .\n\nnot apply to all kinds of partnership property ? Suppose that partners, for the purpose of carrying on their business, purchase, out of the funds of the partnership, leasehold estate, or take a lease of land, paying the rent out of the partnership funds, can it be doubted that the same rule which applies to ordinary chattels would .apply lo such leasehold property ? I do not think it was ever questioned that, on a dissolution, the right of each partner to have the partnership effects sold applies to leasehold property belonging to the partnership as much as to any other stock-in-trade. No one partner can insist on retaining his share unsold. Nor would it make any difference in whom the legal estate was vested, whether in one of the partners or in all; this Court would regulate the matter according to the equities.\n\nAnd Sir W. Grant so decided in Featlzerstonlzauglz v. Fenwick.( )\"\n\nWe have quoted extensively from this decision because of the argument that the decision in Rodriguez's case(') would have been otherwise but for s. 22 of the English Act. Adverting to this Lindley has said :\n\n\"From the principle that a share of a partner is nothing more than his proportion of the partnership assets after they have been turned into money and applied in liquidation of the partnership, whether its property consists of land or not, must, as between the real and personal representatives of a deceased partner, be deemed to be personal and not real estate, unless indeed such conversion is inconsistent with the agreement between the parties. Although the decisions upon this point were conflicting, the authorities which were in favour of the foregoing conclusion certainly preponderated over the others, and all doubt upon the point has been removed by the Partnership Act, I 890, which contains the following section :\n\n22. Where land or any heritable interest therein has become partnership, property it shall, unless the contrary intention appears, be treated as between the partners (including the representative of a deceased partner), and also ai between the heirs of a deceased partner and his executors or administrators, as personal or movable and not real or heritable estate.\"\n\nEven in a still earlier case Foster v. Hale(') a person attempted to obtain an account of the profits of a colliery on the ground that it was partnership property and it was objected that (I) 17 Vos. 298.----·\n\n(2) [1919) A.C. 59. (J) S Vcs. 30~.\n\n-\"t\n\n' •\n\n.~ ... 1\n\n... ' ' •\n\n--. ·-\n\n}'-\n\nNARAYANAPPA v. KRJSHTAPPA (Mudholkar, J.) 407\n\nthere was no signed writing, such as the Statute of Frauds required., Dealing with it the Lord Chancellor observed :\n\n\"That was not the question : it was whether there was a partnership. The subject being an agreement for land, the question then is whether there was a resulting trust for that partnership by operation of law. The question of partnership must be tried as a fact, and as if there was an issue upon it. If by facts and circumstances it is establi shed as a fact that these persons were partners in the col- . liery, in which land was necessary to carry on the trade, the lease goes as an incident. The partnership being established by evidence upon which a partnership may be found, the premises necessary for the purposes of . that partnership are by operation of law held for the purposes of that partnership.'' It is pointed out by Lindley that this principle is carried to its extreme limit by Vice-Chancellor Wigram in Dale v. Hamilton(') .\n\nEven so, it is pointed out that it must be treated as a binding authority in the absence of any decision of the Court of Appeal to the contrary.\n\nIt seems to us that looking to the scheme of the Indian Act no other view can reasonably be taken. The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immovable' property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in.\n\nIt would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would, therefore, not be able to claim or exercise any exclusive right over any property which he has brought in; much less over any other partnership property. He would not be able to exercise his right even to the extent of his share in the business of the partnership. As already stated, his right during the subsistence of the partnership is to get his share of profits from time to time as may be agreed upon among the partners and after the dissolution of the partnership or with his retirement from part\" nership of the value of his share in the net partnership assets as on the date of dissolution or retirement after a deduction of liabilities and prior charges. It is true that even during the subsis tence of the partnership a partner may assign his share to another.\n\nIn that case what the assignee would get would be only that which is permitted bys. 29(1), that is to say, the right to receive the share of profits of the assignor and accept the account of profits agreed to by the partners. There are not many decisions of the High Courts on the point. In the few that there are the preponderating view is\n\n(I) 5 Ha. 369 on appeal 2 Ph. 266.\n\nMIOSup./CI/66-13\n\nin support of the position which we have stated. In Joharmal v.\n\nTejram Jagrup(•) which was decided by Jardine and Telang JJ., the latter took the view that though a partner's share does not include any specific part of any specific item of partnership property, still where the partnership is entitled to immovable property, such share does include an interest in immovable property and, therefore, every instrument operating to create or transfer a right to such share requires to be registeted under the Registration Act. In coming to this conclusion he mainly purported to rely upon an observation contained in the fifth edition of Lindley on Partnership at p. 347. This observation is not to be found in the present edition of Lindley's Partnership nor in the 9th or 10th editions which were brought to our notice. The 5th edition, however, is not available. The learned Judge after quoting an earlier statement which is that the \"doctrine merely amounts to this that on the death of a partner his share in the partnership property is to be treated\n\nas money, not as land\" says : \"This obviously would not affect matters either during the lifetime of a partner-Lindley, L.J., says in so many words that it has no practical operation till his death (p. 348)-or as against parties strangers to the partnership, e.g., the firm's debtors.\" While it is true that the position so far as third persons are concerned would be different it may be pointed out that in Forbes v. Steven(') James V.C., has, as quoted by the learned Judge, said : \"It has long been the settled law of this Court that real estate bought or acquired by a partnership for partnership purposes (in the absence of some controlling agree- E ment or direction to the contrary}, is, as between the partners and . as between the real and personal representatives of a partner deceased personal property, and devolves and is distributable and applicable as personal estate and as legal assets.\" Telang J., eeems to have overlooked, and we say so with great respect, the words \"as between the partners\" which precede the words \"and as between the real and personal representative of the partner deceased\" and to have confined his attention solely to the latter. We have not found in any of the editions of lindley's Partnership an adverse criticism of the view of the Vice-Chancellor.\n\nBut, on the contrary, as already stated, the view expressed is in fnll accord with these observations. Jardine J., has discussed the English authorities at length and after referring to the documents upon which reliance was placed on behalf of the defendant stated llil opinion thus :\n\n\"'To lay down that the three letters in question, which deal generally ith the assts, movable and imm?vable, without specifymg any particular mortgage or other interest in real property require registration, would, I incline to think, in the present state of the authorities, go\n\n(I) I.LR~ i7Rom. :m-. -·\n\n(2) L.R. JO Eq, 178.\n\n.. \\ .\n\nNARAYANAPPA v. KRISHTAPPA (Mudholkar, J.) 409\n\ntoo far. It may be argued that such letters are not 'in struments of gift of immovable property' but rather disposals of a share in a partnership of which the business is money lending, and the mortgage securities merely incidental thereto.\"\n\nThe view of Telang J., was not accepted by the Madras High\n\nCourt in Chitturi Venkataratnam v. Siram Subba Rao(').\n\nThe learned Judges there discussed all the English decisions as also the decisions in Sudarsanam Maistri v. Narasimhulu Maistri(2) and Gopala Chetty v. Vijayaraghavachariar(3) and the opinion of Jardine J ., in Joharmal' s case(•) held that an unregistered deed of release by a partner of his share in the partnership business is admissible in evidence, even where the partnership owns immovable property. The learned Judges pointed out that though a partner may be a co-owner in the partnership property he has no right to ask for a share in the property but only that the partnership business should be wound up including therein the sale of immovable property and to ask for his share in the resulting assets .\n\nThis decision was not accepted as laying down the correct law by a Division Bench of the same High Court in Samuvier v. Ramasubbier(').\n\nThe learned Judges there relied upon the decision in Ashworth v. Munn(•) in addition to the opinion of Telang J.,. and also referred to the decision Gray v. Smith(') in coming to a conclusion contrary to the one in the earlier case. It may be pointed out that the learned Judges have made no reference to the decision of the Privy Council in Gopla Chetty' s case(') though that was one of the decision relied upon by Phillips J., in the earlier case. In so far as Ashworth' s case(6) is concerned that was a case which turned on the provisions of the Mortmain Acts and is not quite pertinent for the decision on the point which was before them and which is now before us. In Gray. v. Smith(7) Kakewich J., held that an agreement by one of the partners to retire and to assign his share in the partnership assets including immovable property, is an agreement to assign an interest in land and falls within the. Statute of Frauds. The view of Kekewich J., seems to have received the approval of Cotton L.J., one of the Judges of the Court of Appeal, though no argument was raised before it challenging its correctness. It may, however, be observed that even according to Kekewich J., the authorities (Foster\n\nv. Hale(') and Dale v. Hamilton(•~ establish that one may have an agreement of partnership by parol, notwithstanding that the partnership is to deal with land. He, however, went on to observe :\n\n(I} l.L.R. 49 Mad. 738.\n\n(2) 1.L.R. 1925 Mad. 149.\n\n(3) l.L.R. 45 Mad. 378 (P.C.)~[1922] A.C. I (4) !.L.R. 17 Born. 235.\n\n(5) l.L.R. 55 Mad. 72.\n\n(6) (188u) 15 Ch. D. 163.\n\n(7) 43 Ch. D. 208.\n\n(8) 5 Yes. 318.\n\n(9) 5 Ha. 369 on appeal 2 Ph. 266\n\n\"But it docs not seem to me to follow that an agreement for the dissolulion of such a partnership need not be expressed in writing, or rather than there need not be a memorandum of the agreement for dissolution when one of the terms of the agreement, either expressly or by necessary implication, is that the party sought to be charged must part with and assign to others an interest in land.\n\nThat seems to me to give rise to entirely different considerations.\n\nIn the one case you prove the partnership by parol; you prove the object, the terms of the partnership, and so on. But in the other case it is one of the essential terms of the agreement that the party to be charged shall convey an interest in land, and that seems therefore to bring it necessarily within the 4th section of the Statute of Frauds\".\n\nIn the case before, us also in Samuvier's case(') the document cannot be said to convey any immovable property by a partner to another expressly or by necessary implication. If we may recall, the document executed by the Addanki partners in favour of the Bhaskara partners records the fact that the partnership business bas come to an end and that the latter have given up their share in \"the machine etc., and in the business\" and that they have \"made over same to you alone completely by way of adjustment\".\n\nThere is no express reference to any immovable property herein.\n\nNo doubt, the document does recite the fact that the Bhaskara family has given to the Addanki family certain property.\n\nThis, however, is merely a recital of a fact which had taken place\n\nrlier. To cases of this type the observations of Kekewich J., which we have quoted do not apply. The view taken in Samuvier's -case(!} seemed to commend itself to Varadachariar J., in Thirumalappa v.\n\nRamappa but he was reversed in Ramappa v.\n\nThirumalappa.(2)\n\nWe may also refer to the decision of a Full Bench in Ajudhia Pershad Ram Pershad v. Sham Sunder & Ors.(3) in which Cornelius J., has discussed most of the decisions we have earlier referred to in addition to several others and reached the conclusion that while a partnership is in existence, no partner can point to any part of the assets of the partnership as belonging to him alone.\n\nAfter examining the relevant provisions of the Act, the learned judge observed :\n\n\"These sections require that the debts and liabilities should first be met out of the firm property and there-\n\n(I) I.LR. 55 Mad. 72.\n\n(2) A.l.R. 1939 Mad. 884.\n\n,3; A.I.R. 1947 Lah. 13.\n\n...\n\nI ~\n\n' I\n\n\\ i--\n\n• A\n\n' D\n\nNARAYANAPPA v. KRJSHTAPPA (Mudholkar, J.) 411\n\nafter the assets should be applied in rateable payment to each partner of what is due to him firstly on account of advances as distinguished from capital and, secondly on account of capital, the residue, if any, being divided rateably among all the partners. It is obvious that the Act contemplates complete liquidation of the assets of the partnership as a preliminary to the settlement of accounts between partners upon dissolution of the firm and it will, therefore, be correct to say that, for the purposes of the Indian Partnership Act, and irrespective of any mutual agreement between the partners, the share of each partner is, in the words of Lindley : \"his proportion of the partnership assets after they have been all realised and converted into money, and all the partnership debts and liabilities have been paid and discharged.\"\n\nThis indeed is the view which has commended itself to us.\n\nMr. Kuppuswamy then referred us to two decisions of English courts in In re Fuller's Contract(') and Burdett-Coutts v. Inland Revenue Commissioners(2) and on the passage at pp. 394 and 395 in Lindley's Partnership under the head \"Form of Transfer\" in support of his argument.\n\nBoth the cases relied upon deal with contracts with third parties and not with agreements between partners inter se concerning retirement or dissolution.\n\nThe passage from Lindley deals with a case where there is an actual transfer of immovable property and is, therefore, not in point.\n\nMr. Chatterjee brought to our notice some English decisions in addition to those we have adverted to in support, which agree with the view taken in those cases.\n\nHe has also referred to the decisions in Prem Raj Brahmin v. Bhani Ram Brahmin(3) and Firm Ram Sahay v. Bishwanath(4). We do not think it necessary to discuss them because they do not add to what we have already said in support of our view.\n\nFor these reasons we uphold the decree of the High Court and dismiss the appeal with costs.\n\n-----·---·--\n\n(1) (1933] Ch. D. 652.\n\n(2) (1960] 1 W.L.R. 1027.\n\n(3) l.L.R. [1946] 1 Cal. 191. (4l A.l.R. 1963 Patna 221.\n\nAppeal dismissed.", "total_entities": 46, "entities": [{"text": "Setty", "label": "OTHER_PERSON", "start_char": 0, "end_char": 5, "source": "ner", "metadata": {"in_sentence": "Setty, who was presumably the karra of the Bhaskara family, by five members of the Addanki family, who presumably represented all the members of the Addanki family."}}, {"text": "Addanki", "label": "OTHER_PERSON", "start_char": 1564, "end_char": 1571, "source": "ner", "metadata": {"in_sentence": "This document on its face shows that the partnership business had come to an end and that the Addanki family had given up their share in the \"machine etc.,"}}, {"text": "Bhaskara", "label": "OTHER_PERSON", "start_char": 1671, "end_char": 1679, "source": "ner", "metadata": {"in_sentence": "in the business\" and had made it over to the Bhaskara family."}}, {"text": "Alladi Kuppuswami", "label": "OTHER_PERSON", "start_char": 1906, "end_char": 1923, "source": "ner", "metadata": {"in_sentence": "The argument advanced by Mr. Alladi Kuppuswami is that since the partnership assets included immovable property and the document records relinquishment by the members of the Addanki family of their interest in those assets, this document \\\\as compulsorily registerable under s. 17(1)(c) of the Registration Act and that as it was not registered it is inadmissible in evidence to prove the dissolution of the partnership as well as the settlement of accounts."}}, {"text": "s. 17(1)(c)", "label": "PROVISION", "start_char": 2152, "end_char": 2163, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 2171, "end_char": 2187, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "India", "label": "GPE", "start_char": 2383, "end_char": 2388, "source": "ner", "metadata": {"in_sentence": "Direct cases upon this point of the courts in India are few but before we examine them it would be desirable to advert to the provisions of the Partnership Act itself bearing on the interest of partners in partnership property."}}, {"text": "Section 14", "label": "PROVISION", "start_char": 2565, "end_char": 2575, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 15", "label": "PROVISION", "start_char": 2877, "end_char": 2887, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 29", "label": "PROVISION", "start_char": 3204, "end_char": 3214, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 30", "label": "PROVISION", "start_char": 3877, "end_char": 3887, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 31 to 38", "label": "PROVISION", "start_char": 4541, "end_char": 4558, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 4694, "end_char": 4699, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 36 and 37", "label": "PROVISION", "start_char": 4736, "end_char": 4749, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37", "label": "PROVISION", "start_char": 4757, "end_char": 4762, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 39 to 55", "label": "PROVISION", "start_char": 5248, "end_char": 5260, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 5320, "end_char": 5325, "source": "regex", "metadata": {"statute": null}}, {"text": "No doubt this decision was subsequent to the enactment of the English Partnership Act", "label": "STATUTE", "start_char": 6101, "end_char": 6186, "source": "regex", "metadata": {}}, {"text": "Kindersley V.C.", "label": "OTHER_PERSON", "start_char": 6503, "end_char": 6518, "source": "ner", "metadata": {"in_sentence": "It was held by Kindersley V.C. that there was a conversion of the property purchased out and out and upon the death of one of the partners his share in the part of the unrealised estate passed to his personal representatives."}}, {"text": "Thurlow", "label": "OTHER_PERSON", "start_char": 6860, "end_char": 6867, "source": "ner", "metadata": {"in_sentence": "After examining the earlier cases the learned Vice-Chancellor observed at p. 995 :\n\n\"The result then of the authorities may be thus stated :-Lord Thurlow was of opinion that a special contract was necessary to convert the land into personalty : and Sir W. Grant followed that decision."}}, {"text": "W. Grant", "label": "OTHER_PERSON", "start_char": 6967, "end_char": 6975, "source": "ner", "metadata": {"in_sentence": "After examining the earlier cases the learned Vice-Chancellor observed at p. 995 :\n\n\"The result then of the authorities may be thus stated :-Lord Thurlow was of opinion that a special contract was necessary to convert the land into personalty : and Sir W. Grant followed that decision."}}, {"text": "Eldon", "label": "OTHER_PERSON", "start_char": 7005, "end_char": 7010, "source": "ner", "metadata": {"in_sentence": "Lord Eldon on more than one occasion strongly expressed his opinion that Lord Thurlow's decision was wrong."}}, {"text": "J. Leach", "label": "OTHER_PERSON", "start_char": 7112, "end_char": 7120, "source": "ner", "metadata": {"in_sentence": "Sir J. Leach clearly decided in three cases that there was conversion out and out : and Sir L. Shadwell, in the last case before him, clearly decided in the same way."}}, {"text": "L. Shadwell", "label": "OTHER_PERSON", "start_char": 7200, "end_char": 7211, "source": "ner", "metadata": {"in_sentence": "Sir J. Leach clearly decided in three cases that there was conversion out and out : and Sir L. Shadwell, in the last case before him, clearly decided in the same way."}}, {"text": "Rodriguez", "label": "OTHER_PERSON", "start_char": 9122, "end_char": 9131, "source": "ner", "metadata": {"in_sentence": "We have quoted extensively from this decision because of the argument that the decision in Rodriguez's case(') would have been otherwise but for s. 22 of the English Act."}}, {"text": "s. 22", "label": "PROVISION", "start_char": 9176, "end_char": 9181, "source": "regex", "metadata": {"statute": null}}, {"text": "Lindley", "label": "JUDGE", "start_char": 11527, "end_char": 11534, "source": "ner", "metadata": {"in_sentence": "It is pointed out by Lindley that this principle is carried to its extreme limit by Vice-Chancellor Wigram in Dale v. Hamilton(') .", "canonical_name": "Lindley"}}, {"text": "Wigram", "label": "OTHER_PERSON", "start_char": 11606, "end_char": 11612, "source": "ner", "metadata": {"in_sentence": "It is pointed out by Lindley that this principle is carried to its extreme limit by Vice-Chancellor Wigram in Dale v. Hamilton(') ."}}, {"text": "Jardine", "label": "JUDGE", "start_char": 13650, "end_char": 13657, "source": "ner", "metadata": {"in_sentence": "In Joharmal v.\n\nTejram Jagrup(•) which was decided by Jardine and Telang JJ.,"}}, {"text": "Telang", "label": "JUDGE", "start_char": 13662, "end_char": 13668, "source": "ner", "metadata": {"in_sentence": "In Joharmal v.\n\nTejram Jagrup(•) which was decided by Jardine and Telang JJ.,"}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 14054, "end_char": 14070, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Lindley", "label": "JUDGE", "start_char": 14713, "end_char": 14720, "source": "ner", "metadata": {"in_sentence": "The learned Judge after quoting an earlier statement which is that the \"doctrine merely amounts to this that on the death of a partner his share in the partnership property is to be treated\n\nas money, not as land\" says : \"This obviously would not affect matters either during the lifetime of a partner-Lindley, L.J., says in so many words that it has no practical operation till his death (p. 348)-or as against parties strangers to the partnership, e.g., the firm's debtors.\"", "canonical_name": "Lindley"}}, {"text": "Madras High\n\nCourt", "label": "COURT", "start_char": 16856, "end_char": 16874, "source": "ner", "metadata": {"in_sentence": "The view of Telang J., was not accepted by the Madras High\n\nCourt in Chitturi Venkataratnam v. Siram Subba Rao(')."}}, {"text": "Joharmal", "label": "OTHER_PERSON", "start_char": 17136, "end_char": 17144, "source": "ner", "metadata": {"in_sentence": "in Joharmal' s case(•) held that an unregistered deed of release by a partner of his share in the partnership business is admissible in evidence, even where the partnership owns immovable property."}}, {"text": "Gopla Chetty", "label": "OTHER_PERSON", "start_char": 18119, "end_char": 18131, "source": "ner", "metadata": {"in_sentence": "It may be pointed out that the learned Judges have made no reference to the decision of the Privy Council in Gopla Chetty' s case(') though that was one of the decision relied upon by Phillips J., in the earlier case."}}, {"text": "Phillips", "label": "JUDGE", "start_char": 18194, "end_char": 18202, "source": "ner", "metadata": {"in_sentence": "It may be pointed out that the learned Judges have made no reference to the decision of the Privy Council in Gopla Chetty' s case(') though that was one of the decision relied upon by Phillips J., in the earlier case."}}, {"text": "Ashworth", "label": "OTHER_PERSON", "start_char": 18241, "end_char": 18249, "source": "ner", "metadata": {"in_sentence": "In so far as Ashworth' s case(6) is concerned that was a case which turned on the provisions of the Mortmain Acts and is not quite pertinent for the decision on the point which was before them and which is now before us."}}, {"text": "Kakewich", "label": "JUDGE", "start_char": 18470, "end_char": 18478, "source": "ner", "metadata": {"in_sentence": "v. Smith(7) Kakewich J., held that an agreement by one of the partners to retire and to assign his share in the partnership assets including immovable property, is an agreement to assign an interest in land and falls within the."}}, {"text": "Kekewich", "label": "JUDGE", "start_char": 18718, "end_char": 18726, "source": "ner", "metadata": {"in_sentence": "The view of Kekewich J., seems to have received the approval of Cotton L.J., one of the Judges of the Court of Appeal, though no argument was raised before it challenging its correctness."}}, {"text": "Cotton L.J.", "label": "JUDGE", "start_char": 18770, "end_char": 18781, "source": "ner", "metadata": {"in_sentence": "The view of Kekewich J., seems to have received the approval of Cotton L.J., one of the Judges of the Court of Appeal, though no argument was raised before it challenging its correctness."}}, {"text": "Samuvier", "label": "OTHER_PERSON", "start_char": 20268, "end_char": 20276, "source": "ner", "metadata": {"in_sentence": "In the case before, us also in Samuvier's case(') the document cannot be said to convey any immovable property by a partner to another expressly or by necessary implication."}}, {"text": "Varadachariar", "label": "JUDGE", "start_char": 21164, "end_char": 21177, "source": "ner", "metadata": {"in_sentence": "seemed to commend itself to Varadachariar J., in Thirumalappa v.\n\nRamappa but he was reversed in Ramappa v.\n\nThirumalappa.(2)\n\nWe may also refer to the decision of a Full Bench in Ajudhia Pershad Ram Pershad v. Sham Sunder & Ors.(3) in which Cornelius J., has discussed most of the decisions we have earlier referred to in addition to several others and reached the conclusion that while a partnership is in existence, no partner can point to any part of the assets of the partnership as belonging to him alone."}}, {"text": "Cornelius", "label": "JUDGE", "start_char": 21378, "end_char": 21387, "source": "ner", "metadata": {"in_sentence": "seemed to commend itself to Varadachariar J., in Thirumalappa v.\n\nRamappa but he was reversed in Ramappa v.\n\nThirumalappa.(2)\n\nWe may also refer to the decision of a Full Bench in Ajudhia Pershad Ram Pershad v. Sham Sunder & Ors.(3) in which Cornelius J., has discussed most of the decisions we have earlier referred to in addition to several others and reached the conclusion that while a partnership is in existence, no partner can point to any part of the assets of the partnership as belonging to him alone."}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 22516, "end_char": 22538, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Kuppuswamy", "label": "OTHER_PERSON", "start_char": 22903, "end_char": 22913, "source": "ner", "metadata": {"in_sentence": "Mr. Kuppuswamy then referred us to two decisions of English courts in In re Fuller's Contract(') and Burdett-Coutts v. Inland Revenue Commissioners(2) and on the passage at pp."}}, {"text": "Chatterjee", "label": "OTHER_PERSON", "start_char": 23468, "end_char": 23478, "source": "ner", "metadata": {"in_sentence": "Mr. Chatterjee brought to our notice some English decisions in addition to those we have adverted to in support, which agree with the view taken in those cases."}}]}
{"document_id": "1966_3_412_422_EN", "year": 1966, "text": "NAVINCHA:\\DRA BABUBHAI -.; AGARSHETll AND\n\nORS.\n\nBOMBAY REVENUE TRIBU'.'iAL AND ORS.\n\nJanuary 21, 1966\n\n[A. K. SARKAR, J. R. MUDHOLKAR AND0 R. S. BACllAWAT, JJ.]\n\nBombay Parona/ /nams Abolition Act (42 o/ 1953), ss. 5, 17(1) and (5)-Gran/ oj land willi exemption regarding pay1nent of /and revenue- Jnam abolished-lnamdar's right to co1npe11sation.\n\nThe appellanlS were holders of shares in Inam villages. On the loams heing aboltshcd by Bombay Personal Inarns Abolition Act, 1953 they claimed compensation for their lnarns under s. 17 (I) of the Act.\n\nBy 1. 17(5). \"Nothing is this section ahall entitle any person to compen'3tion o.i the ground that any inam village or inarn hind which has (sic.) wholly or pan.iaHy exempt from 1hc payment of Jand revenue has been under the provisions of thi.s Act made subject to the payment of full assessment in .accordance with the provisions of the Code.\" Section S of the Act providod,\n\n\"'(i) All inam villages or inam lands are and shall be liable to the payment of land revenue in accordance with the proviions of the Code ancl rules made thereunder and the provisioos of the ('.ode and the rules relating to unalienated land ahall apply\n\n10 such lands.\n\n(12) (a) An inamdar in respect of the inam land in his actual possession or in pOfisession of a person holding from him olher E than an inferior holder, referred to in clause (b), below or\n\n(b) an inferior holder holding inam land on payn1ent of annual a\"essment only shall primarily be liable to the State Government for the payment of land revenue, due in respect of such .. land held by him and shall be entitled to all the righta and shall be liahle to all obligations in rospect of ouch land as an occupant under the Code or the rules made thereunder or any F other law for the time being in force.\"\n\nHELD (Per Sarkar J.) (I) On a construction of the Sanad by which the inams were granted, the grants were of villag6 and cxtmp1ion from land revenue as mentioned in s. 17(5).\n\nWhat the tenant.. paid to the lnamdars wa..~ not somclhing which was due to the Government which the Inamdars kept to then1, elves but v:a<; rent due to the Inamdars.\n\n[414 G;\n\n415 CJ G Even afler the survey in the lnam villages in 1900 under the Bombay Land Revenue Code. 1879 the lnamdars remained the grantees of the soil exempt from payment of revenue and the tenants remained liable, a' before, to pay rent to the Inamdars.\n\n[415 B-F]\n\n(2) Section S of the Act does not show that the lnamdurs were claiming compC!l'iJtion for rhc loss of money that they U'\\Cd t~ collect from the\n\ninferior holders. the ri'.!ht 10 \\vhich collec11on \\Vas ahohshcd by the Act II and therefore s. 17 ( 5 1 did not apply to thorn. The fact that un<ler s. 5 the\n\n1Jnamdar h<t\" nl)t himc; elf been made liable for the revenue in respect of lhc land held hy th~ inferior holders. made no difference.\n\nBy s. S an 41:?\n\nNAVINCHANDRA v. REVENUE TRIBUNAL (Sarkar,!.) 413\n\nInamdar has been deprived of his right to the assessment from the inferior holders and the infeoor holders have been made liable to pay that .. seament to the Government.\n\nTherefore, in actual result, the Inamdar baa been deprived of his right to the assessment because the land ha.. been made subject to the payment of land revenue and he was, therefore covered by s. 17(5). [416 E-0]\n\nPer Mudholkar, J. : Section 5 (I) of the Bombay Personal Inams Abolition Act, 1953, creates liability to pay land revenue to the Govcrament with respect to inarn lands, in accordance with the provi!ioo• of the Bombay Land Revenue Olde, 1879.\n\nWhere lands wero in poss\"5sioo of inferior holders s. 5(2) (b) places the liability on the inferior holdera. The loss resulting to the inarndara is the direct consequenco of the operation of these provisions.\n\nTherefore s. 17(5) of the Act bars the claim for compensation for loss of the right of the appellants to recover from the inferior holders land revenue assessed on the lands in their possession.\n\n[419 C-E]\n\nPer Bachawat. J :\n\nThe grants of the villages, on the construction of the deeds were grants of villages with partial exemption from payment of land revenue :wd were personal inams of the category specified ins. 2(l)(c)(i). The introduction of the survey settlement made no difference in the character 01 the inams. After the Abolition Act, the lands no longer enjoyed either\n\ntotal or partial exemption from payment of land revenue. By •· 5 (I) of lhe Act, all inam lands are now liable to payment of full land revenue.\n\nBys. 5(2)(b), in respect of lands held by inferior holder> the inferior holders now enjoy the status of occupants, and are liable to pay the land revenue directly to the State Government. The appellants were not entitled to claim compensation in respect of the abolition of their right to re cover assessment from the inferior hoders, because such a claim is really on the ground that the inam lands which were formerly exempt from payment of land revenue have been subjected by the Act to payment of full assessment.\n\nSuch a claim is based bys. 17(5).\n\nA grant of village or land with total or partial exemption of land revenue is essentially different from a grant of land revenue and the distinction has been preserved by the Act. On the extension of the grant\n\nof lar.d revenue, the :namdar loses all rights in respect of the grant and he is therefore entitled to full compensation under s. 17 (I). On the other hand, on abolition of the grant of an inarn village or land the inamdar is allowed to retain and enjoy various rights and benefits, hut at the same time the right to compensation under s. 17 (1) is subject to the bar of :;. 17(5). f 420 H-421 HJ\n\nCIVIL APPELLATE\n\nJURISDICTION: Civil Appeals Nos. 1048- 1050 of 1963.\n\nAppeals from the judgment and decree dated September 2 1958 of the Bombay High Court in Special Civil Applications Nos. JIOO, 1161and1162of1958.\n\nD. B. Padhya, J. B. Nagar and A.G. Ratnaparkhi, for the H appellants (in all the appeals).\n\nS. G. Patwardhan, and R. H. Dhebar, for the respondents Nos. 2 and 3 (in all the three appeals).\n\nThe following Judgments were delivered:\n\nSarkar, J. These three appeals concern compensation payable under the Bombay Personal Inams Abolition Act, 1952 to the appellants for abolition of their inams. Some of the appellants held shares in the inam \\illage of Wanz and some in that of Dindoli. The appellants had moved the High Court at Bombay by several petitions under Arts. 226 and 227 of the Constitution for quashing the decision of the Bombay Revenue Tribunal regarding the compensation. The petitions were disposed of by the High Court by a common judgment. These appeals are against that judgment under a certificate granted by the High Court.\n\nThe appellants had claimed compensation under several heads based on different grounds but two of them survive. The first is that the appellants are entitled to compensation for loss of assessment payable to them by inferior holders, a special class of tenants holding lands from them. The Act does not expressly provide for compensation in respect of such lands. Sub-section\n\n(l) of s. 17 of the Act however provides that if any person is aggrieved by the provisions of the Act abolishing any of his rights to or interest in property and if compensation for such abolition has not been provided for, such person may apply to the Collector for compensation. The appellants base their claim on this section.\n\nSub-section (5) of this section makes the right under sub-s. (I) unavailable in a certain case and the question is whether the appellants' claim fell within it. Now the sub-section is in these terms:·\n\nS. 17(5)-Nothing in this section shall entitle any person to compensation on the ground that any inam village or inam land which has (sic.) wholly or partially exempt from the payment of land revenue has been under the provisions of this Act made subject to the payment of full assessment in accordance with the provisions of the Code.\n\nClearly this sub-section applies only to a certain kind of claim for compensation in respect of ; in inam village exempt from payment of land revenue. The appellants say that their inams were not of this kind and so the sub-section does not affect their claim.\n\nAccording to them, their inams consisted of a grant of land revenue only. The nature of an inam depends on the sanad or the tenns of the grant. The High Court held on a construction of the sanads that the inams were grants of the villages with exemption from land revenue, because the words of the grant conveyed the soil and rights over trees. water, mines etc.\n\nThis view is obviously correct.\n\nThe appellants then said that notwithstanding that the soil had been granted, their inams were none the less of land revenue only. Their contention is that before the grants the tenants in\n\nI •\n\n' •\n\nNA VINCHANDRA v. REVENUE TRIBUNAL (Sarkar; J.) 41.5\n\noccupation paid revenue to the Government and thereafter to the inamdars and the latter being exempt from the liability to pay it over to the Government, the net result was that the inamdars retained the land revenue and were, therefore, the grantees thereof.\n\nThis contention is idle. There is nothing to show that there were tenants holding lands in the villages before the grants which were made in 1794 and 1803 respectively and whether they paid anything and if so, what ? Furthermore, what the tenants paid to the inamdars (holders of the inams) after the grants was rent and not revenue; it was for the inamdars to fix the amount of it or forego it altogether if they so liked. What the tenants paid to the inamdars was not something which was due to the Government which the inamdars kept to themselves having been exempted from the liability to pay it over to the Government; it was rent due to the inamdars.\n\nIt was next said that whatever might have been the position earlier, after the introduction of the survey in the villages in 1900 under the Bombay Land Revenue Code, 1879 what a tenant paid to an inamdar was land revenue. There is no justification for this contention either. No doubt since the introduction of the survey the amounts payable by the tenants to the inamdars were all assessed under the Code. The nature of the assessment payable was not however altered thereby nor did it become land revenue .\n\nThe survey fixed the amount payable by a tenant to the inamdar and gave him certain rights. It also conferred certain benefits on the inamdar in the matter of the realisation of his dues. The fact that the assessment was made in the same way as land revenue made no difference. It did not change the right to the assessment.\n\nNotwithstanding all this the inamdar remained the grantee of the soil and a person who was not liable to pay revenue in respect of it and likewise the tenant remained liable as before to pay rent to the inamdar.\n\nFurthermore, the distinction between the two kinds of grants is well recognised and has been maintained by the Act by specifying in s. 2 (I)( e) that an inam means a grant of a village with exemp-- tion from liability to pay land revenue and also a grant of land revenue only. The appellants' contention would in effect wipe out G this distinction and cannot therefore be accepted.\n\nThe appellants then contended that even if their inams were grants of villages exempt from payment of land revenue, sub-s. (5) of s. 17 did not bar their claim because they were not claiming compensation on the ground that the inam villages previously exempted from land revenue had under the Act been made subject to it. They say that they have not been made liable to pay land revenue themselves and are only claiming the loss of the money that they used to collect from the inferior holders, the right to,.\n\nwhich collection was abolished by the Act. This contention is based -0n s. 5 of the Act which is set out below:\n\nS. 5. (I) All inam villages or in am lands arc and shall be 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 land shall apply to such lands.\n\n(2J(a) An inamdar in respect of the inam land in his actual possession or in possession of a person holding from him other than an inferior holder, referred to in clause (b) hclow, or\n\n(b) an inferior holder holding inam land on payment of annual assessment only shall primarily be liable to the State Government for the payment of land revenue, due in respect of such land held by him and shall be entitled to all the rights and shall be liable to all obligations in respect of such land as an occupant under the Code or the rules made thereunder or any other law for the time being in force.\n\nIt seems to me that this contention is also without any foundation. The inamdar's right to appropriate to himself the assessment fixed hy the survey and collected from the inferior holders existed Only because he was exempt from the liability to pay land revenue.\n\nIf he was not so exempt, then what he collected from the inferior holders would have to be paid over to the Government. It would follow that the loss for which the appellants claim compensation was really occasioned by the lands being subjected to revenue by s. 5(2)(b).\n\nThe fact that the inamdar has not himself been made liable for the revenue in respect of the lands held by inferior holders makes no difference. The substance of the matter is that the inamdar has been deprived of his right to the assessment from the inferior holders and the inferior holders have been made liable to pay that assessment to the Government.\n\nSo in actual result the inamdar has been deprived of his right to the assessment because the land has been made subject to payment of land revenue.\n\nHis claim for the loss of assessment is, therefore, in Teality based on the ground that the lands which were free from revenue ha'e been made subject to it.\n\nSub-section (5) of s. 17 does not provide that the bar mentioned in it operates only when land revenue is made payable by the inamdar.\n\nIt also seems to me that any other interpretation would lead to a result which could not have been intended. It is not in dispute that for the loss of rights in respect of lands in his own pos- H session excepting those mentioned in s. 7 or any lands in possession of persons holding from him other than as inferior holders .an inamdar is not entitled to compensation.\n\nIt is adn11tted that\n\nNAVINCHANDRA v. REVENUE TRIBUNAL (Mudholkar, J.) 417\n\nA such compensation could not be allowed in view of s. 17 (5) .\n\nIt would be difficult to imagine a reason for the legislature to have made a distinction between such lands and lands in the possession of inferior holders.\n\nThe other part of the claim concerns the right to forfeit the inferior holders' tenancies for non-payment of rent and the right of reversion in respect of them. These the appellants have no doubt lost. The Collector asked the appellants to produce evidence in support of their claims under this head. They failed to do so. They could not even cite one instance of the exercise of any such right. It would be impossible to value the loss in respect of them as no material for doing so is on the record nor was furnished by the appellants. No compensation can, therefore, be assessed or awarded for the loss of these rights.\n\nThe result is that the appeals fail and they are dismissed. There will be no order as to costs.\n\nMudholkar, J. These appeals are from a judgment of the Bombay High Court dismissing the writ petitions preferred by the appellants before it. The appellants are co-sharers either in the former Inam village Wanz or in the former lnam village Dindoli, both of which are situate in Surat District. Under the Bombay Personal lnams Abolition Act, 1952 all personal Inams were extinguished and all Inam villages as well as all Inam lands were made liable to the payment of land revenue in accordance with the provisions of the Land Revenue Code. The Act did not provide for compensation to the Inamdars with respect to the loss of their rights to hold their villages or lands free from payment of land revenue. Under s. 10 of the Act, however, compensation to the Inamdars was provided for the extinguishment of certain rights possessed by them in their Inam villages. Those rights vest, by virtue of the provisions of s. 7 of the Act, in the Government.\n\nSection 17(1) of the Act po vi des for payment of compensation to a person aggrieved by the provisions of the Act which abolished, extinguished or modified any of his rights or interests in property provided that compensation for such abolition, extinguishment\n\nor modification of those rights had not been provided for in any of the provisions of the Act. To this provision the following exception has been made in sub-section ( 5):\n\n\"Nothing in this section shall entitle any person to compensation on the ground that any inam village or inam land which has wholly or partially exempt from the payment of land revenue has been under the provisions of this Act made subject to the payment of full assessment in accordance with the provisions of the Code.\"\n\nIt is common ground that in both the villages there were holders of land called inferior holders. These were persons claiming through tillers in cultivating possession of different pieces of land in the Inam villages at the time of the grant of the Inams. It is common ground that their rights to continue to be in possession of those lands and cultivate them were left in tact by the lnamdars and the grantees of the lnams were only entitled to claim rents from them.\n\nIt is common ground that under s. 216 of the Bombay Land Revenue Code, 1879 settlement was introduced both in Wanz and Dindoli villages though at different points of time.\n\nIt is also the common case of the parties that after the introduction of the survey, land revenue was assessed on the lands held by the inferior holders and in place of their liability to pay such rent as may be fixed from time to time by the lnamdars they thenceforward were rendered liable to pay to the Inamdar only the land revenue assessed at the settlement. So far as the Government was concerned the grantees of the villages Wanz and Dindoli were exempt from paying land revenue not only in respect of lands held by the inferior holders but also in respect of lands held by the lnamdars themsel\\\"es or held by persons holding through the Inamdars.\n\nNow, in consequence of the extinguishment of the right of the lnamdars to hold the villages revenue free they have been rendered liable to pay land revenue to the Government in respect of the lands in their possession or in the possession of persons holding through them.\n\nNo liability is, however, cast upon them to pay to the Government land revenue in respect of lands in the possession of inferior holders. This follows clearly from s. 5 of the Act and is not disputed by either set of parties to the appeal.\n\nNo compensation is expresse!y provided for the Joss of the right of the lnamdar to recover from the inferior holders land revenue assessed on the lands in their possession. Mr. Padhya contends that the appellants would, therefore, be entitled to claim compensation in respect of this loss under s. 17(1).\n\nHe points out that the loss of this right to the lnamdars is not occasioned because of the fact that the lnam villages were made liable to pay full assessment but because the inferior holders have now been required to pay land revenue to the Government instead of to the lnamdars. It is difficult to accept this argument. The relevant provision of the Act for consideration s. 5 which runs thus:\n\n\"5(1) All inam villages or inam lands are and shall be liable to the payment of!and 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 una!icnated land shall apply to such lands. (2)(a) An inamdar in respect of the inam land in his actual possession or in possession of a person holding from\n\nH •\n\nNAVINCHANDRA v. REVENUE TRIBUNAL (Bachawat, J.) 419\n\nhim other than an inferior holder, referred to in clause\n\n(b) below, or\n\n(b) an inferior holder holding inam land on payment of annual assessment only shall primarily be liable to the\n\nState Government for the payment of land revenue due in respect of such land held by him and shall be entitled to all the rights and shall be liable to all obligations in respect of such land as an occupant under the Code or the rules made thereunder or any other law for the time being in force.\" It is sub-section (I) of this section which creates liability to pay land revenue. Sub-section (2) then proceeds to say as to who is made liable to pay land revenue: the Inamdar or holder from the Inamdar or an inferior holder. Clause (b) of sub-s. (2) which deals with the liability placed on inferior holders has, therefore, to be read with sub-s. (I) and when they are so read it would be clear that the loss resulting to the Inamdar is the direct consequence of the operation of these provisions. In other words it is the direct consequence ofthe provisions of the Act that lands in possession of inferior holders are made liable to pay full assessment \"in accordance with the provisions of the Code\". This in the context means, liable to pay full assessment to the Government. It is true that by making this provision the Inamdars have sustained loss of one of their rights in property. It is also true that ifs. 17(1) does not apply-as in my view it does not applyno compensation is payable to the Inamdars. However, as no argument has been raised before us that the aforesaid provision of the Act infringes the guarantee incorporated in Art. 31 (I) of the Constitution and is, therefore, unconstitutional the provisions ofs. 5 of the Act must be held to be fully operative.\n\nIt was faintly urged by learned counsel that the Inamdar's right of reversion and right of escheathavealso been taken away by the Act and no compensation is provided for it. No provision was, however, brought to our notice by virtue of which it could be said that these rights of the Inamdars have at all been touched by the Act. Even assuming that these rights have been taken away it seems to me that the grounds given by the High Court for rejecting the appellants' claim are cogent and adequate. In the result, therefore, I agree that the appeals be dismissed. I would make no order as to costs.\n\nBachawat, J. The appellants were holders of shares in inam villages; some held shares in the inam village of Wanz, others held shares in the inam village of Dindoli. The inams were abolished by the Bombay Personal Inams Abolition Act, 1952. By s. 4 of the Act, save as expressly provided by or under the Act, all rights in the inams were extinguished. Sections IO and 17(1) provided for payment of compensation. In view of sub-s. (5) of\n\nSUPREME COURT Rf PORTS\n\n[1966] 3 S.C.R.\n\ns. 17, no compensation can be claimed under sub-s. (I) of s. 17 on the ground that any inam village or inam land which was wholly or partially exempt from payment of land revenue has been under the Act made subject to the payment of full assessment. The appellants filed claims for compensation under ss. 10 and 17 (1) of the Act before the Collector of Surat. We arc now concerned with the following two claims for compensation under s. 17(1) of the Act: (I) loss for the abolition of the right of the appellants to recover assessment from the inferior holders in respect of the lands in their possession; (2) loss for the extinction of the right of reversion and forfeiture in respect of those lands. The Collector of Surat and the Bombay Revenue Tribunal concurrently held that the claim for compensation in respect of the first item was barred bys. 17(5) of the Act and in respect of the claim under the second head, the appellants failed to prove that they sustained any loss.\n\nThe appellants filed applications under Arts. 226 and 227 of the Constitution before the High Court at Bombay challenging the correctness of these findings.\n\nThe High Court dismissed the applications.\n\nSection 2(1)(c) of the Acl classifies personal inams into two categories. The appellants content that their inams were grants of land revenue and therefore personal inams of the second category specified in s. 2( I )(c)(ii).\n\nIn respect of the personal inam of the second category. the bar of s. 17(5) is not attracted. On the other hand, the respondents contend that the inams in question were grants of villages partially exempt from payment of the land revenue, and therefore personal inams of the first category specified in s. 2(1)(c)(i).\n\nIn respect of personal inams of the first category, the bar of s. 17(5) is attracted. The High Court held-and, in my opinion, rightly-that the grants of the villages on their trae construction were grants of the soil. The inamdars were not required to pay any land revenue except the quit rent and some small haqs. Consequently, the grants were grants of villages with partial exemption from payment of the land revenue and were personal inams of the first category specified ins. 2(1)(e)(i).\n\nThe survey and settlement of the villages under s. 216 of the Land Revenue Code, 1879 made no difference in the character of the inams. The introduction of the survey settlement did not confer on the inferior holders the status of occupants, nor render them liable to pay land revenue to the Government; they continued to be inferior holders under the inamdar and liable to pay the asses.'- ments to him.\n\nIn spite of the survey settlement, the villages continued to be alienated villages, and the inams continued to be personal inams of the first c3tegory referred to ins. 2(1)(c)(i) of the Act.\n\nThe High Court rightly held that the appellants arc not entitled to claim compensation in respect of the abolition of their\n\nNAVINCHANDRA v. REVENUE TRIBUNAL (Bachawat, !.) 421\n\nright to recover assessment from the inferior holders. The inam lands no longer enjoyed either total or partial exemption from payment of land revenue. By s. 5(1) of the Act, all inam lands are now liable to payment of full land revenue. By s. 5(2)(b), in respect of lands held by inferior holders on payment of assessment only, the inferior holders now enjoy the status of occupants, and are liable to pay the land revenue directly to the State Government. In respect of those lands, the inamdars are neither entitled to collect the assessment from the inferior holders nor liable to pay land revenue to the State Government. Had the appellants' right to recover assessment from the inferior holders not been abolished, they would have been entitled to recover the amounts of assessments from the inferior holders and at the same time would have been liable to pay the identical amounts. to the Government on account of land revenue. The loss consequential on the abolition of the right to recover assessment is, therefore, nil. The claim under this head is really on the ground that the inam lands which were formerly exempt from payment of land revenue have been subjected by the Act to payment of full assessment. Such a claim is barred by s.17(5) of the Act.\n\nWith regard to the claim for compensation under the second' head, the High Court rightly held that the appellants could not establish any loss under this head. They failed to show that they exercised any right of forfeiture or claimed any right of reversion at any time. I see no reason for disturbing the finding of the High Court and the Tribunals below on this point.\n\nThe appellants submit that in view of the ephemeral nature of their rights of reversion and forfeiture in respect of the lands held by the inferior holders, the grants of villages, as far as they relate to those lands, are assimilated to grants of land revenue. They submit that the High Court and the Tribunals below while holding that the only right of the appellants in respect of those lands was to recover the assessments from the inferior holders, have inconsistently and unjustly held that the grants were grants of inam villages and not of land revenue so as to attract the bar of\" s. 17(5). This submission is not well-founded. A grant of a village or land with total or partial exemption from payment of land revenue is essentially different from a grant of land revenue, and the distinction has been preserved by the Act. On the extinction of the grant of land revenue, the inamdar loses all rights in respect of the grant, and he is therefore entitled to full compensation under s. s. 17(1). On the other hand, on abolition of the grant of an inam village or land, the inamdar is allowed to retain and enjoy various rights and benefits arising out of the grant. Section 5(2)(a) gives him the rights of an occupant in respect of lands in his actual possession or in possession of persons holding from him other than\n\ninferior holders. The grants of inam lands, on their true construction, may include the right to mines or mineral products, see Secretary of State for India v. Slzantaram Naravan('), and this right of the inamdar, if any, is preserved hy s. 9 of the Act.\n\nBys. JO of the Act the inamdar holding inam villages or lands is entitled to compensation in respect of any right or interest in any property referred to ins. 7. He is also entitled to compensation under s. 17(1), but this right is subject to the provisions of s. 17(5).\n\nIt will appear, therefore, that the Act treats the inams of the two categories very differently.\n\nWhile the holder of the inam of the first category referred to in s. 2(1)(e)(i) suffers from the disadvantage of the bar of s. 17 (5) in respect of compensation, he enjoys numerous advantages which are denied to the holder of the inam of the second category referred to ins. 2(1)(e)(ii).\n\nThe appeals fail, and are dismissed.\n\nThere will be no order as to costs.\n\nAppeals dismissed.\n\n--·--·--- ~(t) (1925) I. L. 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(I) On a construction of the Sanad by which the inams were granted, the grants were of villag6 and cxtmp1ion from land revenue as mentioned in s. 17(5)."}}, {"text": "s. 17(5)", "label": "PROVISION", "start_char": 1970, "end_char": 1978, "source": "regex", "metadata": {"statute": null}}, {"text": "Section S of the Act", "label": "STATUTE", "start_char": 2426, "end_char": 2446, "source": "regex", "metadata": {}}, {"text": "s. 17", "label": "PROVISION", "start_char": 2660, "end_char": 2665, "source": "regex", "metadata": {"linked_statute_text": "Section S of the Act", "statute": "Section S of the Act"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 2717, "end_char": 2721, "source": "regex", "metadata": {"linked_statute_text": "Section S of the Act", "statute": "Section S of the Act"}}, {"text": "1Jnamdar", "label": "RESPONDENT", "start_char": 2727, "end_char": 2735, "source": "ner", "metadata": {"in_sentence": "The fact that un<ler s. 5 the\n\n1Jnamdar h<t\" nl)t himc; elf been made liable for the revenue in respect of lhc land held hy th~ inferior holders."}}, {"text": "Inamdar", "label": "PETITIONER", "start_char": 2930, "end_char": 2937, "source": "ner", "metadata": {"in_sentence": "413\n\nInamdar has been deprived of his right to the assessment from the inferior holders and the infeoor holders have been made liable to pay that .. seament to the Government."}}, {"text": "s. 17(5)", "label": "PROVISION", "start_char": 3296, "end_char": 3304, "source": "regex", "metadata": {"linked_statute_text": "Section S of the Act", "statute": "Section S of the Act"}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 3321, "end_char": 3330, "source": "ner", "metadata": {"in_sentence": "416 E-0]\n\nPer Mudholkar, J. : Section 5 (I) of the Bombay Personal Inams Abolition Act, 1953, creates liability to pay land revenue to the Govcrament with respect to inarn lands, in accordance with the provi!ioo• of the Bombay Land Revenue Olde, 1879.", "canonical_name": "R. MUDHOLKAR"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 3337, "end_char": 3346, "source": "regex", "metadata": {"linked_statute_text": "Section S of the Act", "statute": "Section S of the Act"}}, {"text": "Bombay Personal Inams Abolition Act, 1953", "label": "STATUTE", "start_char": 3358, "end_char": 3399, "source": "regex", "metadata": {}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 3611, "end_char": 3618, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Personal Inams Abolition Act, 1953", "statute": "the Bombay Personal Inams Abolition Act, 1953"}}, {"text": "s. 17(5)", "label": "PROVISION", "start_char": 3780, "end_char": 3788, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Personal Inams Abolition Act, 1953", "statute": "the Bombay Personal Inams Abolition Act, 1953"}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 3981, "end_char": 3989, "source": "ner", "metadata": {"in_sentence": "[419 C-E]\n\nPer Bachawat."}}, {"text": "After the Abolition Act", "label": "STATUTE", "start_char": 4292, "end_char": 4315, "source": "regex", "metadata": {}}, {"text": "s. 17", "label": "PROVISION", "start_char": 5390, "end_char": 5395, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 5599, "end_char": 5604, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 5799, "end_char": 5816, "source": "ner", "metadata": {"in_sentence": "Appeals from the judgment and decree dated September 2 1958 of the Bombay High Court in Special Civil Applications Nos."}}, {"text": "D. B. Padhya", "label": "JUDGE", "start_char": 5878, "end_char": 5890, "source": "ner", "metadata": {"in_sentence": "D. B. Padhya, J. B. Nagar and A.G. Ratnaparkhi, for the H appellants (in all the appeals)."}}, {"text": "J. B. Nagar", "label": "LAWYER", "start_char": 5892, "end_char": 5903, "source": "ner", "metadata": {"in_sentence": "D. B. Padhya, J. B. Nagar and A.G. Ratnaparkhi, for the H appellants (in all the appeals)."}}, {"text": "A.G. Ratnaparkhi", "label": "LAWYER", "start_char": 5908, "end_char": 5924, "source": "ner", "metadata": {"in_sentence": "D. B. Padhya, J. B. Nagar and A.G. Ratnaparkhi, for the H appellants (in all the appeals)."}}, {"text": "S. G. Patwardhan", "label": "LAWYER", "start_char": 5970, "end_char": 5986, "source": "ner", "metadata": {"in_sentence": "S. G. Patwardhan, and R. H. Dhebar, for the respondents Nos."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 5992, "end_char": 6004, "source": "ner", "metadata": {"in_sentence": "S. G. Patwardhan, and R. H. Dhebar, for the respondents Nos."}}, {"text": "These three appeals concern compensation payable under the Bombay Personal Inams Abolition Act, 1952", "label": "STATUTE", "start_char": 6120, "end_char": 6220, "source": "regex", "metadata": {}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 6438, "end_char": 6455, "source": "regex", "metadata": {"linked_statute_text": "These three appeals concern compensation payable under the Bombay Personal Inams Abolition Act, 1952", "statute": "These three appeals concern compensation payable under the Bombay Personal Inams Abolition Act, 1952"}}, {"text": "Bombay Revenue Tribunal", "label": "COURT", "start_char": 6509, "end_char": 6532, "source": "ner", "metadata": {"in_sentence": "226 and 227 of the Constitution for quashing the decision of the Bombay Revenue Tribunal regarding the compensation."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 7104, "end_char": 7109, "source": "regex", "metadata": {"linked_statute_text": "These three appeals concern compensation payable under the Bombay Personal Inams Abolition Act, 1952", "statute": "These three appeals concern compensation payable under the Bombay Personal Inams Abolition Act, 1952"}}, {"text": "S. 17(5)", "label": "PROVISION", "start_char": 7630, "end_char": 7638, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Land Revenue Code, 1879", "label": "STATUTE", "start_char": 9938, "end_char": 9968, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 10979, "end_char": 10983, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 11360, "end_char": 11365, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 11813, "end_char": 11817, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 5", "label": "PROVISION", "start_char": 11854, "end_char": 11858, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(2)(b)", "label": "PROVISION", "start_char": 13249, "end_char": 13259, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 13946, "end_char": 13951, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 14296, "end_char": 14300, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 14561, "end_char": 14566, "source": "regex", "metadata": {"statute": null}}, {"text": "Wanz", "label": "GPE", "start_char": 15659, "end_char": 15663, "source": "ner", "metadata": {"in_sentence": "The appellants are co-sharers either in the former Inam village Wanz or in the former lnam village Dindoli, both of which are situate in Surat District."}}, {"text": "Dindoli", "label": "GPE", "start_char": 15694, "end_char": 15701, "source": "ner", "metadata": {"in_sentence": "The appellants are co-sharers either in the former Inam village Wanz or in the former lnam village Dindoli, both of which are situate in Surat District."}}, {"text": "Surat District", "label": "GPE", "start_char": 15732, "end_char": 15746, "source": "ner", "metadata": {"in_sentence": "The appellants are co-sharers either in the former Inam village Wanz or in the former lnam village Dindoli, both of which are situate in Surat District."}}, {"text": "Bombay Personal lnams Abolition Act, 1952", "label": "STATUTE", "start_char": 15758, "end_char": 15799, "source": "regex", "metadata": {}}, {"text": "s. 10", "label": "PROVISION", "start_char": 16164, "end_char": 16169, "source": "regex", "metadata": {"linked_statute_text": "Under the Bombay Personal lnams Abolition Act, 1952", "statute": "Under the Bombay Personal lnams Abolition Act, 1952"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 16366, "end_char": 16370, "source": "regex", "metadata": {"linked_statute_text": "Under the Bombay Personal lnams Abolition Act, 1952", "statute": "Under the Bombay Personal lnams Abolition Act, 1952"}}, {"text": "Section 17(1)", "label": "PROVISION", "start_char": 16403, "end_char": 16416, "source": "regex", "metadata": {"linked_statute_text": "Under the Bombay Personal lnams Abolition Act, 1952", "statute": "Under the Bombay Personal lnams Abolition Act, 1952"}}, {"text": "s. 216", "label": "PROVISION", "start_char": 17662, "end_char": 17668, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Land Revenue Code, 1879", "label": "STATUTE", "start_char": 17676, "end_char": 17706, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 18897, "end_char": 18901, "source": "regex", "metadata": {"statute": null}}, {"text": "Padhya", "label": "OTHER_PERSON", "start_char": 19151, "end_char": 19157, "source": "ner", "metadata": {"in_sentence": "Mr. Padhya contends that the appellants would, therefore, be entitled to claim compensation in respect of this loss under s. 17(1)."}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 19269, "end_char": 19277, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 19654, "end_char": 19658, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 21745, "end_char": 21752, "source": "regex", "metadata": {"statute": null}}, {"text": "inams were abolished by the Bombay Personal Inams Abolition Act, 1952", "label": "STATUTE", "start_char": 22654, "end_char": 22723, "source": "regex", "metadata": {}}, {"text": "s. 4", "label": "PROVISION", "start_char": 22728, "end_char": 22732, "source": "regex", "metadata": {"linked_statute_text": "The inams were abolished by the Bombay Personal Inams Abolition Act, 1952", "statute": "The inams were abolished by the Bombay Personal Inams Abolition Act, 1952"}}, {"text": "SUPREME COURT Rf PORTS\n\n[1966] 3 S.C.R.", "label": "COURT", "start_char": 22922, "end_char": 22961, "source": "ner", "metadata": {"in_sentence": "In view of sub-s. (5) of\n\nSUPREME COURT Rf PORTS\n\n[1966] 3 S.C.R.\n\ns. 17, no compensation can be claimed under sub-s. (I) of s. 17 on the ground that any inam village or inam land which was wholly or partially exempt from payment of land revenue has been under the Act made subject to the payment of full assessment."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 22963, "end_char": 22968, "source": "regex", "metadata": {"linked_statute_text": "The inams were abolished by the Bombay Personal Inams Abolition Act, 1952", "statute": "The inams were abolished by the Bombay Personal Inams Abolition Act, 1952"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 23021, "end_char": 23026, "source": "regex", "metadata": {"linked_statute_text": "The inams were abolished by the Bombay Personal Inams Abolition Act, 1952", "statute": "The inams were abolished by the Bombay Personal Inams Abolition Act, 1952"}}, {"text": "ss. 10 and 17", "label": "PROVISION", "start_char": 23264, "end_char": 23277, "source": "regex", "metadata": {"linked_statute_text": "The inams were abolished by the Bombay Personal Inams Abolition Act, 1952", "statute": "The inams were abolished by the Bombay Personal Inams Abolition Act, 1952"}}, {"text": "Surat", "label": "GPE", "start_char": 23317, "end_char": 23322, "source": "ner", "metadata": {"in_sentence": "10 and 17 (1) of the Act before the Collector of Surat."}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 23398, "end_char": 23406, "source": "regex", "metadata": {"linked_statute_text": "The inams were abolished by the Bombay Personal Inams Abolition Act, 1952", "statute": "The inams were abolished by the Bombay Personal Inams Abolition Act, 1952"}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 23986, "end_char": 24003, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court at Bombay", "label": "COURT", "start_char": 24035, "end_char": 24055, "source": "ner", "metadata": {"in_sentence": "226 and 227 of the Constitution before the High Court at Bombay challenging the correctness of these findings."}}, {"text": "Section 2(1)(c)", "label": "PROVISION", "start_char": 24148, "end_char": 24163, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2( I )(c)(ii)", "label": "PROVISION", "start_char": 24355, "end_char": 24371, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(5)", "label": "PROVISION", "start_char": 24441, "end_char": 24449, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(1)(c)(i)", "label": "PROVISION", "start_char": 24677, "end_char": 24690, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(5)", "label": "PROVISION", "start_char": 24756, "end_char": 24764, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 216", "label": "PROVISION", "start_char": 25235, "end_char": 25241, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Revenue Code, 1879", "label": "STATUTE", "start_char": 25249, "end_char": 25272, "source": "regex", "metadata": {}}, {"text": "s. 5(1)", "label": "PROVISION", "start_char": 26118, "end_char": 26125, "source": "regex", "metadata": {"linked_statute_text": "the Land Revenue Code, 1879", "statute": "the Land Revenue Code, 1879"}}, {"text": "s. 5(2)(b)", "label": "PROVISION", "start_char": 26204, "end_char": 26214, "source": "regex", "metadata": {"linked_statute_text": "the Land Revenue Code, 1879", "statute": "the Land Revenue Code, 1879"}}, {"text": "s.17(5)", "label": "PROVISION", "start_char": 27207, "end_char": 27214, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(5)", "label": "PROVISION", "start_char": 28190, "end_char": 28198, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 28594, "end_char": 28602, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5(2)(a)", "label": "PROVISION", "start_char": 28774, "end_char": 28789, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 29166, "end_char": 29170, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 29388, "end_char": 29396, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(5)", "label": "PROVISION", "start_char": 29445, "end_char": 29453, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(1)(e)(i)", "label": "PROVISION", "start_char": 29620, "end_char": 29633, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 29678, "end_char": 29683, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_423_426_EN", "year": 1966, "text": ".. ...\n\nAMAR SINGH AND OTHERS\n\nv .\n\nRANA BALBAHADUR SINGH\n\nJanuary 27, 1966\n\n[P. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO, J. c. SHAH,\n\nS. M. SIKRI AND V. RM!ASWAMI, JJ.]\n\nMadhya Pradesh Land Revenue Code, 1954 s. 185(1) ands. 185(3) read with s. 168(2)-lease of ryotwari land prior to commencement of A.ct --Bhumiswami minor on date of lease but not at commencement of Act- Whether belonged to class of disabled persons within the meaning of s. 168(2)-Therefore whether lessee became occupancy tenant under s. 185(1).\n\nJn 1936, certain ryotwari lands belonging to the estate of the respondent in Madhya Bharat were leased for cultivation to the appellants' father M by the Court of Wards which was in management of the estate. After the Court of Wards released the estate in 1951, the respondent terminated the tenancy 0nd instituted a suit for a decree in ejectment and for mesne profits.\n\nThe trial Court passed a decree in the respondent's favour and this was confirmed in appeal by the District Court as well as by the High Court.\n\nIt was contended on behalf of the appellants that on the coming into force of the Madhya Pradesh Land Revenue Code, 1954, M acquired the status of an occupancy tenant as he held land of the nature described by s. 185 ( 1). On the other hand it was the respondent's contention that even though a ryotwari sub-lessee might acquire the status of an occupancy tenant; the tenant M was disentitled to that status since at the commence~ ment of the tenancy the respondent, was subject to a disability of the character set out in s. 168(2). Accordingly, the case fell within the exception to s. 185(1) provided in sub-s. (3) of that section.\n\nHELD . By virtue of s. 185 (1), M became an occupancy tenant of the land when the Code was brought into operation; the appeal must therefore be allowed and the respondent's suit dismissed. [426 El\n\nFor the exemption from the operation of s. 185 (I) to apply, it had to be established that the respondent at the commencement of the code beloni:ed to the disabled class.\n\nAlthough being a minor he belonged to the dISabled class at the time when the lease was granted, he did not belon.\\l to the di•abled class at the commencement of the Code. What is decisive for the operation of the exemption under s, 185(3) read with G s. 168(2) is the status at the commencement of the code. [425 EJ\n\nRao Nihalkaran v. Ramgopal [1966] 3 S.C.R. 427; referred to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 354 of 1965 Appeal by special leave from the judgment and order dated December 18, 1962 of the Madhya Pradesh High Court (Indore H Bench) in Second Appeal No.77 of 1960.\n\nB. R. L. Iyengar, G. L. Sanghi and A. G. Ratnaparkhi, for the appellants. 423 M !~Sup.C. T./66~· 14\n\nSUPREME COURT\n\nRF.PORTS\n\n[ 1966] 3 S.C.R.\n\nS. N. Andley, Rameshwar Narh and P. L. Vo/Ira, for the res- A pondcnt.\n\nB. R. L. Iyengar, G. L. Sanglzi and A. G. Ratnaparklzi, for intervener No. I.\n\nJ. B. Dadachanji, 0. C. Mathur and Ra1inder Narain, for interi; encr No. 2.\n\nThe Judgment of the Court was delivered by\n\nShah, J.\n\nJn 1936 certain home farm land in Mouza Bclam Bujurg, Paragana Burwaha, of the estate of the respondent were leased for culti\\'ation to one Mangtya by the Court of Wards which was in management of the estate. The Court of Wards released the estate on June 14, 1951. The respondent thereafter terminated the tenancy and instituted a suit in the Court of Civil Judge, Class IJ, Burwaha, against Mangtya for a decree in ejectment and for mesne profits. The Trial Court decreed the suit for possession and awarded mesne profits at the rate of Rs. 300/- per annum from the date of the decree till delivery of possession. The decree passed by the Trial Court was confirmed in appeal by the District Court, Nimar, and the High Court of Madhya Pradesh. Sons of Mangtya, who died after the judgment of this High Court have preferred this appeal with special leave.\n\nThe land in dispute is ryotwari land and Mangtya was a ryotwari sub-lessee of the land. It was contended before the High E Court in Rao Niha/karan v. Ramchandra & Otlzersl that even though a ryotwari sub-lessee of land in the Madhya Bharat region may ordinarily acquire under s. 185 (l)(ii)(b) on the commencement of the Code the status of an occupancy tenant, the tenant Mangtya was disentitled to that status since at the commencement of the tenancy the respondent was subject to a disability of the character set out in s. 168(2). The High Court upheld the plea of the res- F pondent; they held that the expression \"holds the land from a Bhumiswami who belongs to any one or more of the classes\" predicates two conditions-that the land is held by a tenant under a Bhumiswami, and that at the commencement of the tenancy the landlord who subsequently acquired the status of a Bhumiswami belonged to any one or more of the classes mentioned in sub-s.\n\n(2) of s. 168 of the Code.\n\nThe only question which falls to be determined in this appeal is whether under s. 185 (3) of the Madhya Pradesh Land Revenue Code the tenant Mangtya was disqualified from claiming the status of an occupai1cy tenant.\n\nBy s. 157 of the Code there was to be in the State of Madhya Pradesh a single clao; s of tenure holders of H land held from the Stte to be known as Bhumiswami. The\n\n(I) L. P. A. No. 14 of 19<ot decided on Sept. 24, 1962.\n\nAMAR SINGH V. R. B, SINGH (Shah, J.) 425\n\nrespondent may be by virtue of s. 158(b) deemed to be a Bhumiswami. The rights of a Bhumiswami under the Code .are heritable but in the matter of transfer inter vivas they are subject to restritions prescribed by ss. 165 & 168. Land comprised in the holding of a Bhumiswami may not by virtue of s. 168(1) be transferred by way of a lease, except in the conditions mentioned in sub-ss. (2) & (3) of s. 168. A Bhumiswami subject to one or more of the disabilities mentioned in sub-s. (2) may grant a lease of his holding. It has to be noticed that the provisions which create the tenure of a Bhumiswami and the restrictions thereon are prospective. We have held in Appeal No. 365 of 1965-Rao Niha/karan v.\n\nRamgopa/(1)-that a person whose tenancy rights were determined before the commencement of the Code will be invested with the status of an occupancy tenant provided he holds land of the nature described in sub-s. (I) of s. 185. But upon this rule is engrafted an exception by sub-s. (3) of s. 185 that nothing in sub-s. (1) shall apply to a person who at the commencement of the Code holds the land from a disabled Bhumiswami.\n\nAt the commencement of the Code the respondent acquired the tenure of a Bhumiswami under s. ! 58(b) of the Code, but it cannot be said that the respondent \"belongs to any one or more of the classes mentioned in sub-section (2) of section 168\". For the exemption from the operation of s. 185(1) it had to be established that the respondent at the commencement of the Code \"belongs\" to the disabled class. He undoubtedly did belong to the disabled class when the lease was granted, but not at the commencement of the Code, and what is decisive for the operation of the exemption under sub-s. (3) is the status of Bhumiswami at the commencement of the Code. By s. 168(2) the prohibition against a Bhumiswami against transfer by way ofa lease of the land comprised in his holding is inoperative, where the Bhumiswami is subject to any one of the disabilities mentioned in els. (i) to (ix) of sub-s. (2). That provision is undoubtedly prospective. The Legislature has by sub-s. (3} of s. 185 prohibited the acquisition of occupancy tenancy rights by a tenant of a Bhumiswami who was when the Code came into force subject to any of the disabilities mentioned in s. 168 (2). It is clear from the terms of sub-s. (2) of s. 168 proviso 2 that a lease made by a Bhumiswami who is subject to a disability remains valid only during the disability and one year after the determination of that disability, by death or otherwise. Therefore a lease created by a Bhumiswami, even if he was at the date when he created the lease subject to a disability would become invalid on the termination of the disability and a period of one year thereafter. By sub-s. (4) of s. 168 it is provided that a lease granted in pursuance of sub-ss.\n\n(2) or (3) shall be held on such terms and conditions as may be agreed upon between the Jessee and the Bhumiswami and it is further\n\n(!) n966] 3 S.C.R. 427\n\n426 SUPRl!MB COURT REPORTS\n\n(1966] 3 S.C.R.\n\nprovided by sub-s. (5) that on the coming into force of the Code where any land is held on lease from a Bhumiswami who belongs to any one or more of the classes mentioned In sub-s. (2) such lease shall, on the coming into force of the Code, be deemed to be a lease granted in pursuance of sub-s. (2). The lease granted by a person who on the commencement of the Code acquires the status of a Bhumiswami is therefore deemed to be a lease granted in pursuance of sub-s. (2) of s. 168, if the Bhumiswami \"belongs\" to the class mentioned in sub-s. (2).\n\nReading s. 185(3) with s. 168 (2) and s. 168 (5) it is clear that to attract exclusion from the operation of s. 185 (I) the Bhwniswami must, at the commencement of the Code, be subject to the disability mentioned in sub-s. (2)of s. 168. What is determinative is not the existence of disability at the date of the grant of the lease before the commencement of the Code, but the disability of the Bhumiswami at the commencement of the Code.\n\nOn the date on which the Code was brought into force, the respondent was not a Bhumiswami belonging to any one or more of the classes mentioned in sub-s. (2) of s. 168, and the exception provided by s. I 85 (3) will not apply. It is true that the respondent was a minor at the time when the lease was granted by the Court of Wards. But he ceased to be a minor in 1951. By virtue of s. 185 (I) the tenant, notwithstanding the institution of the suit, became an occupancy tenant of the land when the Code was brought into operation and the mere fact that the respondent was a minor at the date of the lease did not prevent the statutory acquisition of the status of an occupancy tenant by Mangtya under s. 185(1).\n\nThe appeal must therefore be allowed and the decree passed by the High Court set aside. The suit filed by the respondent will stand dismissed. There will he no order as to costs throughout.\n\nAppeal allowed", "total_entities": 68, "entities": [{"text": "AMAR SINGH AND OTHERS", "label": "PETITIONER", "start_char": 8, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "AMAR SINGH AND OTHERS", "offset_not_found": false}}, {"text": "RANA BALBAHADUR SINGH", "label": "RESPONDENT", "start_char": 36, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "RANA BALBAHADUR SINGH", "offset_not_found": false}}, {"text": "January 27, 1966", "label": "DATE", "start_char": 59, "end_char": 75, "source": "ner", "metadata": {"in_sentence": "RANA BALBAHADUR SINGH\n\nJanuary 27, 1966\n\n[P. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO, J. c. SHAH,\n\nS. M. SIKRI AND V. RM!ASWAMI, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 78, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO, J.", "label": "JUDGE", "start_char": 107, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 125, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 135, "end_char": 146, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Madhya Pradesh Land Revenue Code, 1954", "label": "STATUTE", "start_char": 171, "end_char": 209, "source": "regex", "metadata": {}}, {"text": "s. 185(1)", "label": "PROVISION", "start_char": 210, "end_char": 219, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh Land Revenue Code, 1954", "statute": "Madhya Pradesh Land Revenue Code, 1954"}}, {"text": "s. 168(2)", "label": "PROVISION", "start_char": 243, "end_char": 252, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh Land Revenue Code, 1954", "statute": "Madhya Pradesh Land Revenue Code, 1954"}}, {"text": "s. 168(2)", "label": "PROVISION", "start_char": 442, "end_char": 451, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh Land Revenue Code, 1954", "statute": "Madhya Pradesh Land Revenue Code, 1954"}}, {"text": "s. 185(1)", "label": "PROVISION", "start_char": 507, "end_char": 516, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh Land Revenue Code, 1954", "statute": "Madhya Pradesh Land Revenue Code, 1954"}}, {"text": "s. 185", "label": "PROVISION", "start_char": 1246, "end_char": 1252, "source": "regex", "metadata": {"linked_statute_text": "It was contended on behalf of the appellants that on the coming into force of the Madhya Pradesh Land Revenue Code, 1954", "statute": "It was contended on behalf of the appellants that on the coming into force of the Madhya Pradesh Land Revenue Code, 1954"}}, {"text": "s. 168(2)", "label": "PROVISION", "start_char": 1559, "end_char": 1568, "source": "regex", "metadata": {"linked_statute_text": "It was contended on behalf of the appellants that on the coming into force of the Madhya Pradesh Land Revenue Code, 1954", "statute": "It was contended on behalf of the appellants that on the coming into force of the Madhya Pradesh Land Revenue Code, 1954"}}, {"text": "s. 185(1)", "label": "PROVISION", "start_char": 1621, "end_char": 1630, "source": "regex", "metadata": {"linked_statute_text": "It was contended on behalf of the appellants that on the coming into force of the Madhya Pradesh Land Revenue Code, 1954", "statute": "It was contended on behalf of the appellants that on the coming into force of the Madhya Pradesh Land Revenue Code, 1954"}}, {"text": "s. 185", "label": "PROVISION", "start_char": 1692, "end_char": 1698, "source": "regex", "metadata": {"linked_statute_text": "It was contended on behalf of the appellants that on the coming into force of the Madhya Pradesh Land Revenue Code, 1954", "statute": "It was contended on behalf of the appellants that on the coming into force of the Madhya Pradesh Land Revenue Code, 1954"}}, {"text": "s. 185", "label": "PROVISION", "start_char": 1910, "end_char": 1916, "source": "regex", "metadata": {"linked_statute_text": "It was contended on behalf of the appellants that on the coming into force of the Madhya Pradesh Land Revenue Code, 1954", "statute": "It was contended on behalf of the appellants that on the coming into force of the Madhya Pradesh Land Revenue Code, 1954"}}, {"text": "s. 168(2)", "label": "PROVISION", "start_char": 2294, "end_char": 2303, "source": "regex", "metadata": {"statute": null}}, {"text": "[1966] 3 S.C.R. 427", "label": "CASE_CITATION", "start_char": 2387, "end_char": 2406, "source": "regex", "metadata": {}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 2640, "end_char": 2656, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, G. L. Sanghi and A. G. Ratnaparkhi, for the appellants."}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 2658, "end_char": 2670, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, G. L. Sanghi and A. G. Ratnaparkhi, for the appellants.", "canonical_name": "G. L. Sanglzi"}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 2675, "end_char": 2692, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, G. L. Sanghi and A. G. Ratnaparkhi, for the appellants.", "canonical_name": "A. G. Ratnaparklzi"}}, {"text": "S. N. Andley", "label": "OTHER_PERSON", "start_char": 2784, "end_char": 2796, "source": "ner", "metadata": {"in_sentence": "C. T./66~· 14\n\nSUPREME COURT\n\nRF.PORTS\n\n[ 1966] 3 S.C.R.\n\nS. N. Andley, Rameshwar Narh and P. L. Vo/Ira, for the res- A pondcnt."}}, {"text": "Rameshwar Narh", "label": "LAWYER", "start_char": 2798, "end_char": 2812, "source": "ner", "metadata": {"in_sentence": "C. T./66~· 14\n\nSUPREME COURT\n\nRF.PORTS\n\n[ 1966] 3 S.C.R.\n\nS. N. Andley, Rameshwar Narh and P. L. Vo/Ira, for the res- A pondcnt."}}, {"text": "P. L. Vo", "label": "LAWYER", "start_char": 2817, "end_char": 2825, "source": "ner", "metadata": {"in_sentence": "C. T./66~· 14\n\nSUPREME COURT\n\nRF.PORTS\n\n[ 1966] 3 S.C.R.\n\nS. N. Andley, Rameshwar Narh and P. L. Vo/Ira, for the res- A pondcnt."}}, {"text": "G. L. Sanglzi", "label": "LAWYER", "start_char": 2874, "end_char": 2887, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, G. L. Sanglzi and A. G. Ratnaparklzi, for intervener No.", "canonical_name": "G. L. Sanglzi"}}, {"text": "A. G. Ratnaparklzi", "label": "LAWYER", "start_char": 2892, "end_char": 2910, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar, G. L. Sanglzi and A. G. Ratnaparklzi, for intervener No.", "canonical_name": "A. G. Ratnaparklzi"}}, {"text": "J. B. Dadachanji", "label": "LAWYER", "start_char": 2935, "end_char": 2951, "source": "ner", "metadata": {"in_sentence": "I.\n\nJ. B. Dadachanji, 0."}}, {"text": ". C. Mathur", "label": "LAWYER", "start_char": 2954, "end_char": 2965, "source": "ner", "metadata": {"in_sentence": "I.\n\nJ. B. Dadachanji, 0."}}, {"text": "Ra1inder Narain", "label": "LAWYER", "start_char": 2970, "end_char": 2985, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ra1inder Narain, for interi; encr No."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3056, "end_char": 3060, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J.\n\nJn 1936 certain home farm land in Mouza Bclam Bujurg, Paragana Burwaha, of the estate of the respondent were leased for culti\\'ation to one Mangtya by the Court of Wards which was in management of the estate."}}, {"text": "June 14, 1951", "label": "DATE", "start_char": 3317, "end_char": 3330, "source": "ner", "metadata": {"in_sentence": "The Court of Wards released the estate on June 14, 1951."}}, {"text": "Court of Civil Judge, Class IJ, Burwaha", "label": "COURT", "start_char": 3410, "end_char": 3449, "source": "ner", "metadata": {"in_sentence": "The respondent thereafter terminated the tenancy and instituted a suit in the Court of Civil Judge, Class IJ, Burwaha, against Mangtya for a decree in ejectment and for mesne profits."}}, {"text": "Mangtya", "label": "PETITIONER", "start_char": 3459, "end_char": 3466, "source": "ner", "metadata": {"in_sentence": "The respondent thereafter terminated the tenancy and instituted a suit in the Court of Civil Judge, Class IJ, Burwaha, against Mangtya for a decree in ejectment and for mesne profits.", "canonical_name": "Mangtya"}}, {"text": "District Court, Nimar", "label": "COURT", "start_char": 3750, "end_char": 3771, "source": "ner", "metadata": {"in_sentence": "The decree passed by the Trial Court was confirmed in appeal by the District Court, Nimar, and the High Court of Madhya Pradesh."}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 3781, "end_char": 3809, "source": "ner", "metadata": {"in_sentence": "The decree passed by the Trial Court was confirmed in appeal by the District Court, Nimar, and the High Court of Madhya Pradesh."}}, {"text": "Madhya Bharat", "label": "GPE", "start_char": 4149, "end_char": 4162, "source": "ner", "metadata": {"in_sentence": "It was contended before the High E Court in Rao Niha/karan v. Ramchandra & Otlzersl that even though a ryotwari sub-lessee of land in the Madhya Bharat region may ordinarily acquire under s. 185 (l)(ii)(b) on the commencement of the Code the status of an occupancy tenant, the tenant Mangtya was disentitled to that status since at the commencement of the tenancy the respondent was subject to a disability of the character set out in s. 168(2)."}}, {"text": "s. 185", "label": "PROVISION", "start_char": 4199, "end_char": 4205, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168(2)", "label": "PROVISION", "start_char": 4446, "end_char": 4455, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168", "label": "PROVISION", "start_char": 4883, "end_char": 4889, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 4983, "end_char": 4989, "source": "regex", "metadata": {"statute": null}}, {"text": "Mangtya", "label": "PETITIONER", "start_char": 5045, "end_char": 5052, "source": "ner", "metadata": {"in_sentence": "The only question which falls to be determined in this appeal is whether under s. 185 (3) of the Madhya Pradesh Land Revenue Code the tenant Mangtya was disqualified from claiming the status of an occupai1cy tenant.", "canonical_name": "Mangtya"}}, {"text": "s. 157", "label": "PROVISION", "start_char": 5124, "end_char": 5130, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 5175, "end_char": 5189, "source": "ner", "metadata": {"in_sentence": "By s. 157 of the Code there was to be in the State of Madhya Pradesh a single clao; s of tenure holders of H land held from the Stte to be known as Bhumiswami."}}, {"text": "Sept. 24, 1962", "label": "DATE", "start_char": 5326, "end_char": 5340, "source": "ner", "metadata": {"in_sentence": "14 of 19<ot decided on Sept. 24, 1962."}}, {"text": "s. 158(b)", "label": "PROVISION", "start_char": 5416, "end_char": 5425, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 165 & 168", "label": "PROVISION", "start_char": 5598, "end_char": 5611, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168(1)", "label": "PROVISION", "start_char": 5680, "end_char": 5689, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168", "label": "PROVISION", "start_char": 5783, "end_char": 5789, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 6309, "end_char": 6315, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 6379, "end_char": 6385, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhumiswami", "label": "OTHER_PERSON", "start_char": 6504, "end_char": 6514, "source": "ner", "metadata": {"in_sentence": "But upon this rule is engrafted an exception by sub-s. (3) of s. 185 that nothing in sub-s. (1) shall apply to a person who at the commencement of the Code holds the land from a disabled Bhumiswami."}}, {"text": "section 168", "label": "PROVISION", "start_char": 6747, "end_char": 6758, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185(1)", "label": "PROVISION", "start_char": 6801, "end_char": 6810, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168(2)", "label": "PROVISION", "start_char": 7175, "end_char": 7184, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 7497, "end_char": 7503, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168", "label": "PROVISION", "start_char": 7673, "end_char": 7679, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168", "label": "PROVISION", "start_char": 7729, "end_char": 7735, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168", "label": "PROVISION", "start_char": 8164, "end_char": 8170, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168", "label": "PROVISION", "start_char": 8909, "end_char": 8915, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185(3)", "label": "PROVISION", "start_char": 8992, "end_char": 9001, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168", "label": "PROVISION", "start_char": 9007, "end_char": 9013, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168", "label": "PROVISION", "start_char": 9022, "end_char": 9028, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 9093, "end_char": 9099, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168", "label": "PROVISION", "start_char": 9213, "end_char": 9219, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168", "label": "PROVISION", "start_char": 9585, "end_char": 9591, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 9806, "end_char": 9812, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185(1)", "label": "PROVISION", "start_char": 10125, "end_char": 10134, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_427_436_EN", "year": 1966, "text": "RAO NIHALKARAN\n\nRAMGOPAL\n\nJanuary 27, 1966\n\n[P. B. GAJENDRAGADKAR C. J., K. N. WANCHOO, J. C. SHAH,\n\nS. M. SIKRI AND V. RAMASWAMI, JJ.]\n\nMadhya Pradesh Land Revenue Code (20 of 1959), ss. 185(1)(ii)(a) 261 and 262(2)-Tenant, if includes a person whose tenancy has been teY..\n\nminated at the contmencement of Code-Tenant against whom ejectmen'I proceedings had commenced at the commencement of the Code-If could claim to be an occupancy tenant.\n\nThe appellant (holder of an inam in Madhya Pradesh) served a notico on his tenant, the respondent, terminating the tenancy on the ground that he wanted the land for personal cultivation and filed a suit for ejectment.\n\nThe trial court decreed the suit. During the pendency of the appeal in the District Court, Art. 32 of 1954 was enacted, and pursuant to its proVJSions the hearing of the appeal was stayed. After the Madhya Pradesh Land Revenue Code came into force in 1959, the District Court held that by virtue of s. 185 of that Code the respondent acquired the rights of an occupancy tenant and dismissed the suit. 'The High Court conllrml<t\n\nthe judgment of the District Court.\n\nIn appeal to this Court, it was contended that : (i) the rights of an occupancy tenant arise in favour of a person under s. 185(1)(i)(a) only if there was between him and the landlord a subsisting tenancy at the date when the Code came into force and since under the law in force before the commencement of the Code, the respondent had ceased to be a tenant because of the notice terminating the contract of tenancy the respondent was not invested with the rights of an occupany tenant; and (ii) by virtue of ss. 261 and 262(2), the operation of s. 185 is expressly excluded when a person, against whom ejectment proceedings have been instituted prior to the commencement of the Code in enforcement of a right then acquired.\n\nclaims the status of an occupancy tenant.\n\nHELD : (i) The respondent acquired the right of an occupancy tenant under the Code, because the expression \"tenant\" in s. 185 (I) (ii) (a) includes a person whose tenancy was terminated before the commencement of the Code.\n\nThe definition of the expression \"tenant\" in the Code postulates a subsisting tenancy, but the position of a tenant prior to the date on which the Code was brought into force is not dealt with in the definition. In tho cootext in which the expression \"tenant\" occurs in s. 185(1), that definition could not be intended to apply in determining the conditions which invest a holder of land with the status of an occupancy tenant at the commencement of the Code. Therefore having regard to the object of the enactment the expression should be ascribed the meaning it has in Act 32 of 1954. Under ss. 3 & 4 of that Act a person who was inducted into the land as a tenant and who continued to hold the land at the commencement of the Act was. entitled to protection against evictipn and continue as tenant, notwithstanding that under the law in force prior to the commencement of the Act, the contractual relationship of landford\n\nand tenant was determined.\n\n[432 D; 432 H-433 CJ\n\nThere is no reason to think that the Legislature sought to make a distinction between tenants of lnam land in s. I 85(1 )(ii)(a) and ryotwari\n\nsub-lessees of other lands ins. J85(1)(ii)(b). Therefore, if the expressioo \"ryotwari sub-lessee\" ins. 185(1)(ii)(b) includes a sub-lessee whose\n\ntenaure was terminated before tbe commencement of the Code, a tenant of inam land, whose tenancy has been terminated would also be inchided in the protection, provided at some time prior to the date on which the Code was brought into force, he was in poso; ession of the land as a tenant, and he continued to hold the land till the date of the commencement of the Code. [434 E-Hl\n\n(ii) The provision> of the Code appeol lo tenants in proceedings for ejectment pending at the commencement of the Code.\n\nThe provi>o to s. 261 protects a right which had been acquired under a law repeated by the Code and the right could be enforced as if the Code\n\nhad not been passed.\n\nBut the right to evict a tenant was governed by c the general law of landlord and tenant and was not acquired under any repealed law. The proviso had no operation and a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law enacted in the Code. Therefore, the tenant could not be evicted otherwise than in the manner and for reasons mentioned in\n\n1. I 93 of the Code but, personal requirement for cultivation of land ;, not a ground on \\Vhich a claim for ejectment cou1d be maintained. {435 G\n\n436M D Section 262(2) is only procedural it provides that a civil court will continue to have jurisdicuon to dispose of a civil suit pending before it at the commencement of the Code, which, if it had been instituted after the Code was passed would have been tried hy a revenue court; and in the disposal of such a suit, the civil coun will be governed by the procedural Jaw applicable thereto prior to the commencement of the Code. It doe< not nullify the statutory conferment of occupancy right upon persons in E the position of tenants against whom proceedings were taken at the date when the Code was brought into force. [436 B-Dl\n\nCIVIL Apn-LLAlli JURISDICTION: Civil Appeal No. 365 of 1965.\n\nAppeal by special leave from the Judgment and order <lated 1 February 18, 1963 of the Madhya Pradesh High Court (Indore F Bench) in Second Appeals Nos. 68 and 70 of 1961.\n\nc. B. Agarwa!a, B. Dutra, J. B. DadachanjCo.~ c. -Marhu; and Ral'i11der Narain, for the appellant. -\n\nK. R. Chaudhry, for the respondent.\n\n8. R. L. lye11gar, G. L. Sa11ghi and A. G. Ratnaparkhi for Intervener No. I.\n\nJ. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for intervener No. 2.\n\nThe Judgment of the Court was delivered by\n\nShah, J. Ramgopal-respondcnt in this appeal-was a tenant of certain lnam land situate in village Nanda Panth in Indore Tahsil. The appellant Rao Nihalkaran-holder of the lnamserved a notice terminating the tenancy on the ground that he needed the land for personal cultivation, and commenced an action in the Court of the Civil Judge, Class II, Indore, on July 21, 1950, against Ramgopal for a decree in ejectment. The Trial Court decreed the suit. During the pendency of the appeal to the District Court, Indore, by Ramgopal against the decree, Madhya Bharat Muafi & Inam Tenants and Sub-tenants Protection Act 32 of 1954 was enacted, and pursuant to the provisions thereof hearing of the appeal remained stayed till 1960. In the mean time the Madhya Pradesh Land Revenue Code (Act 20 of 1959) was brought into force.\n\nRamgopal urged before the District Court that he had by virtue of s. 185 of the Code acquired rights of an occupancy tenant and the appellant's right to obtain an order in ejectment on the ground set up must be refused. The District Judge accepted the contention of the respondent and allowed the appeal. Against the decree passed by the District . Court, Indore, the appellant appealed to the High Court of Madhya Pradesh, Indore Bench.\n\nFollowing their judgment in Rao Nihalkaran v. Ramchandra and\n\nOthers (1), the High Court confirmed the decree of the District Judge, and dismissed the appeal. With special leave granted by this Court, this appeal has been preferred.\n\nThe dispute in the appeal centres round the meaning of the expression \"tenant\" used in s. 185(1) cl. (ii) (a) of the Madhya Pradesh Land Revenue Code. The material part of the clause reads:\n\n\"Every person who at the coming into force of this Code holds- (i)\n\n(ii) in the Madhya Bharat region- F\n\n(a) any Inam land as a tenant, or as a sub-tenant or as\n\nan ordinary tenant, shall be called an occupancy tenant, and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code.\"\n\nIt is common ground that the tenancy of an occupancy tenant may be determined under s. 193 of the Madhya Pradesh Land Revenue Code by an order of the Sub-Divisional Officer on the grounds specified in that section, and personal requirement of the land-lord is not one of such grounds. But counsel for the appellant urged that the rights of an occupancy tenant arise in favour of a person under s. 185 (I) cl. (ii) (a) only if there is between him and the claimant to the land a subsisting relation under which he holds land\n\n(1) L. P.A. No. 14 of 1961 decided on Sept. 24, 1962.\n\n430 SUPRl!MP. COURT REPORTS\n\n(1966] 3 S.C.R.\n\nas a tenant at the date when the Code came into force. The Code has, it is said, no retrospective operation, and the person who under the law in force before the commencement of the Code had ceased to be a tenant because of termination of the contract between him and the landlord is not invested with the rights of an occupancy tenant under s. 185 (I) (ii) (a). In the alternative it is contended that by virtue of s. 261 and s. 262(2), operation of s. 185 is expressly excluded, when a person against whom proceedings have been instituted prior to the commencement of the Code for a decree in ejectment in enforcement of a right acquired under the law then in force, claims the status of an occupancy tenant.\n\nThe District Court held that the expression \"tenant\" within the meaning of s. 185 (l)(ii)(a) of the Code includes a person whose tenancy stood determined before the commencement of the Code, and with that view the High Court agreed. Counsel for the appellant complained that in reaching this conclusion, the Courts below ignored the definition in s. 2(y) of the Code that the expression \"tenant\" means a person holding land from a Bhumiswami as an occupancy tenant under Ch. XIV, and said that a person qua whom the contractual relation under which he was inducted as a tenant was detcrmied prior to the commencement of the Code is not a tenant within the meaning of s. 185(1)(ii)(a). To appreciate this argument it is necessary to examine the relevant legislative history culminating in the enactment of the Code in 1959.\n\nIn 1948 twenty Indian States including the States of Gwalior, Indore and Malwa formed themselves into a Union. Five more States were later incorporated into this Union.\n\nUnder the Constitution, Madhya Bharat was formed as a Part B State out of the territories of the United States of Gwalior, Indore & Malwa and certain enclaves merged therein and the Chief Commissioner's Province of Panth Piploda. Under the States Reorganisation Act, 1956 a new State of Madhya Pradesh was formed as from November 1, 1956 consisting of the Part B State of Madhya Bharat, parts of the former State of Madhya Pradesh, the territories of the States of Bhopal and Vindhya Pradesh and Sironj sub-division of Kotah in the former State of Rajasthan. Apparently the diverse land tenures pre\\'alent in the covenanting States and the laws governing them remained in opcrtion in their respective territories, even after the formation of the Part B State of Madhya Bharat. Attempts were made to evolve a uniform pattern of land revenue administration in conformity with the directive principles of State Policy in the Constitution to bring the tiller of the soil into direct relation with the State. The Legislature of the Part B State of Madhya Bharat enacted Act 66 of 1950 to consolidate and declare the law relating to revenue administration in the United States of Gwalior, Indore and Malwa and land revenue, land tenure\n\nA and other matters connected with the land in the Ryotwari tracts or\n\nl\" villages of the United States. Section 54 of Act 66 of 1950 defined \"Pakka tenant'', \"ordinary tenant\", \"sub-tenant\" and prescribed -.. the duties of a tenant by s. 55. By s. 73 a \"Pakka tenant\" was prohibited from sub-letting for any period any land comprised in his holding, unless he belonged to any of the classes mentioned\n\nB in s. 74. By s. 74 certain classes of disabled persons were permilted to sub-Jet the whole or any part of their holding.\n\nBut such a sub-lease made in pursuance of the provisions of the Act was to cease to be in force after one year of the determination of the disability by death or otherwise. Bys. 75 it was provided that a sub-lease of the whole or any part of the holding of a \"Pakka tenant\" c effected \"properly and legally\" prior to the commencement of the Act was to terminate after the expiry of the period of sub-lease or expiry of four years after the commencement of the Act, whichever period was Jess.\n\nBy s. 76 a sub-lessee failing to hand over possession after expiry of his right was to be deemed a tresspasser and liable to ejectment in accordance with the provisions of the Act.\n\n-J.\n\nThe Legislature with the object of improving the conditions of D agriculturists and with a view to remove the middleman between the State and the tiller of the soil also enacted the Zamindari Abo- ; lition Act and the Abolition of Jagirs Act. ,\n\nAnother statute which has a bearing on the dispute in this appeal-the Madhya Bharat Muafi and lnam Tenants and Sub- E tenants Protection Act 32 of 1954-was enacted to provide, for the duration of the Act, for the protection of tenants or ordinary tenants and sub-tenants of Muafidars, lnamdars and lstumurardars in Madhya Bharat against eviction by such Muafidars or lnamdars of their tenants, as the case may be, and for stay of suits and other proceedings relating to such eviction. By s. 2(ii) the terms\n\nF \"tenant\", \"sub-tenant\", \"ordinary tenant\" and \"rent\" were given the same meaning as was assigned to them in sub-ss. (1), (7), (8) & (9) of s. 54 of Act 66 of 1950.\n\nBy s. 3 a restriction was placed upon eviction of any tenant, sub-tenant or ordinary tenant of Inam land during the continuance of the Act and it was declared that the tenant, sub-tenar. t or ordinary tenant shall not pay rent higher than what he was paying in tile agricultural year ending G June 30, 1948. By s. 4 all suits, proceedings in execution of de- --r\n\ncrees or orders and other proceedings for the eviction of Inam land tenants, sub-tenants or ordinary tenants from Inam lands, or in which a claim for such eviction was involved, pending in the Court at the commencement of the Act or which may be instituted after such commencement, were to be stayed subject to the provisions ..\n\nH contained in the Act. By sub-s. (11) of s. 4 it was provided that if the Inamdar, Muafidar or Istumurardar had taken possession of the land illegally from a tenant, sub-tenant or an ordinary tenant after August 15, 1947 such a tenant, sub-tenant or an ordinary\n\ntenant may apply to the Tahsildar to be restored to possession of A 11uch land and on such application the Tahsildar shall cause the land to be returned to such tenant, sub-tenant or ordinary tenant from the Inamdar, Muafidar or Istumurardar, as the case may be.\n\nBy s. 6 it was provided that all suits and proceedings shall, after the expiration of the Act, be proceeded with subject to the provision• of any law which may then be in force from the stage which had B been reached when the suit or proceeding was stayed.\n\nAct 32 of 1954 was intended initially to remain in force for a period of two years, but its life was extended by later enactments.\n\nProtection against eviction during the continuance of Act 32 of 1954 by enforcement of a decree passed in a suit or a proceeding either before or after the date on which the Act was brought into force was conferred upon tenants, sub-tenants and ordinary tenants. It is clear from the terms of ss. 3 & 4 of the Act that the Legislature did not seek to grant protection only to persons between whom and the claimants for protection there was a subsisting contractual relation. A person who was inducted into the land as a tenant, sub-tenant or ordinary tenant and who continued to hold the land at the commencement of the Act was entitled to protection, notwithstanding that under the law in force prior to the Commencement of the Act the contractual relation was determined.\n\nThe Madhya Pradesh Land Revenue Code was enacted in 1959.\n\nDys. 157 of the Code it was declared that there shall be only one class of tenure holders of lands held from the State to be known as Dhumiswami, and by s. 158 it was provided that every person, who at the time of coming into force of the Code, belongs to any of the four classes specified shall be called a Dhumiswami, and shall have all the rights and he subject to all the liabilities conferred or imposed upon a Dhumiswami by or under the Code, and among the persons specified is \"every person in respect of land held by him in the Madhya Bharat region as a Pakka tenant or as a Muafidar, Inamdar or Concessional holder as defined in the Madhya Bharat Land Revenue and Tenancy Act Samvat 2007\".\n\nThe argument of counsel for the appellant is that the respondent not being a tenant at the commencement of the Code could not acquire the rights of an occupancy tenant, and that. any proceeding instituted against the tenant must be heard and disposed of according to the law in force prior to the commencement of the Code. The definition of the expression \"tenant\" in s. 2(y) postulates a subsisting tenancy, but that definition may be r.esorted to for interpreting s. 185 (I) only ifthe context or the subject-matter of the section does not suggest a different meaning.\n\nA tenant is by the definition a person who holds land as an occuancy teant from a Dhumiswami: but the status of a Dhum1swanu ts recogmzed\n\n' >-\n\nNJ, HALKARAN v. RAMGOPAL (Shah, /.) 433\n\nfor the first time by the Code, and an occupancy tenant from a Bhumiswami would mean only a person belonging to that class who acquires rights of occupancy tenant after the Code comes into force. The position of a tenant prior to the date on which the Code was brought into force does -not appear to have been dealt with in this definition. The definition which is specially devised for the purpose of the Act throws no light on the nature of the right which invests the holder of land with the status of an occupancy tenant at the commencement of the Code. In the context in which the expression \"tenant\" occurs in s. 185 the definition could not be intended to apply in determining the conditions which invest upon a holder of land the status of an occupancy tenant. If the expression \"tenant\" ins. 185 (1) be released from the artificial definition as given ins. 2(y), in view of the context in which it occurs, the expression \"tenant\" in s. l 85(l)(ii)(a), having regard to the object of the enactment would be ascribed the meaning that expression had in Act 32 of 1954.\n\nThis view is strengthened by certain indications found in cl. (ii)(b) if s. 185 (1) which provides that in the Madhya Bharat region every person who at the commencement of the Code holds any land as ryotwari sub-lessee as defined in the Madhya Bharat Ryotwari Sub-Lessee Protection Act 29 of 1955 shall be called an occupancy tenant. Unless a ryotwari sub-lessee .as defined in Act 29 of 1955 included a sub-lessee whose tenure was terminated before the commencement of the Code, that clause would not apply to any concrete case. The Court would not unless compelled by unambiguous language impute to the Legislature an intention to enact a provision which was ineffective.\n\nBy s. 73 of Act 66 of 1950 a Pakka tenant could not sub-let for any period any land comprised in his holding except in the cases provided for ins. 74, and bys. 75 it was provided that all sub-leases in force at the commencement of the Act were to terminate either on the expiry of the period of sub-lease or expiry of four years whichever was earlier. All sub-leases exc; ept those which were covered by s. 74 i.e. sub-leases granted by disabled persons before the commencement of Act 66 of 1950 stood terminated some time before the end of 1954 and by the express terms of s. 76 the sublessees were to be deemed trespassers and liable to ejectment in accordance with the provisions of the Act. Notwithstanding these provisions, by another Act 29 of 1955, scheme of which was Slj.bstantially the same as the scheme of Act 32 of 1954, ejectment of ryotwari sub-lessees other than a sub-lessee under s. 74 of Act 66 of 1950 was suspended for the duration of the Act, and all suits and proceedings in execution for ejectment were to be stayed.\n\nBys. 2(b) of Act 29 of 1955 \"Ryotwari sub-lessee\" was defined as meaning \"a person to whom a Pakka tenant of any ryotwari land has sub-let on sub-lease any part of his ryotwari land\". By\n\nSUPREMI! COURT REPORTS (l 966] 3 s.c.R.\n\ns. 3 a ban was imposed against ejectment of all ryotwari sub-lessees other than sub-lessees under s. 74 of Act 66 of 1950. Bys. 4 provision was made for ejectment of ryotwari sub-lessees and provisions similar toss. 5 & 6 of Act 32 of 1954 were made in this Act also.\n\nA ban was therefore imposed against eviction of ryotwari sub-lessees and proceedings for eviction against them were stayed by Act 29 of 1955. Therefore ryotwari sub-lessees who had ceased by determination of the sub-leases to have right in the lands were still protected from eviction during the pendency of Act 29 of 1955, and by s. J85(1)(ii)(b) of the Code upon the ryotwari sub-lessees the rights of occupancy tenants were conferred. If the expression \"ryotwari sub-lessee\" were to be construed to mean a ryotwari sub-lessee between whom and his lessor there was a subsisting contract of sub-letting, the protection for all purposes would be ineffective. for, by express statutory provision read with s. 74 of Act 66 of 1950 all ryotwari sub-leases stood determined before Act 29 of 1955 was brought into force, and by virtue of s. 185 (3) of the code a holder of land from a disabled Bhumiswami belonging to a class mentioned in s. 168(2) of the Code does not qualify for the status of an occupancy tenant. It may be noticed that in the class of disabled persons in sub-s (2) of s. 168 of the Code are included all persons who are declared disabled by sub-s. (2) of s. 74 of Act 66 of 1950.\n\nIf ryotwari sub-lessees of disabled persons mentioned in subs. (2) of s. 74 of Act 66 of 1950 cannot claim rights of occupancy tenants by virtue of s. 185 (3) of the Code and other oyotwari sublessees cannot qualify for those rights because of the determination of their interest as sub-lessees by virtue of ss. 75 & 76 of Act 66 of 1950 s. 185 (l)(ii)(b) of the Code will not apply to any class of ryotwari sub-lessees. This is a strong ground in support of the view taken by the High Court that the expression \"ryotwari sublessec\" in s. 185 (l)(ii)(b) of the Code includes persons whose contractual relation has heen determined either under the terms of contract of sub-lease or statutorily under Act 66 of 1950. If that be the true meaning of the expression \"ryotwari sub-lessee\" there would be no reason to think that the Legislature sought to make a distinction between tenants, sub-tenants and ordinary tenants of lnam land ins. 185(l)(ii)(a) of the Code and ryotwari sub-lessees of other lands in s. 185(l)(ii)(b).\n\nA member belonging to those classes would therefore be included in the protection provided at some time prior to the date on which the Code was brought into force, if he was in possession of land as a tenant, sub-tenant or ordinary tenant and he continued to hold the land till the date of crmmenccment of the Code.\n\nThe alternative argument that s. 185 of the Code has no application in respect of pending proceedings for ejectment is without substance.\n\nBys. 261 of the Code a large number of\n\nF .\n\n. ..,..\n\n.( H\n\nstatutes specified in Sch. II were repealed. By s. 261 certain enactments specified in Sch. II . including the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950 and the Madhya Bharat Muafi and Inam Tenants and Sub-tenants Protection Act 32 of 1954 were wholly repealed. But it is expressly provided in s. 261 that the repeal shall not affect-( a) the previous operation of any law so repealed or anything duly done or suffered thereunder; or (b) any right, privilege, obligation or liability acquired, accued or incurred under any law so repealed or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Act had not been passed. Section 262 which deals with transitory provisions by sub-s. (2) provides:\n\n\"Any case pending in Civil Court at the coming into force of this Code, which would under this Code be exclusively triable by a Revenue Court, shall be disposed of by such Civil Court according to the law in force prior to the commencement of this Code.\"\n\nRelying upon these two provisions it was urged that persons who were tenants, sub-tenants or ordinary tenants of Inam land prior to the date on which the Code was brought into force, whose rights have consistently with the law in force before that date been terminated, cannot set up rights of occupancy tenants acquired under s. 185, for, within the meaning of s. 261 the right to eject a tenant has accrued to the landlord before the commencement of the Code and a proceeding for enforcement of that right may be continued and the right enforced as if the Code had not been passed, and the Court in which the proceeding is pending would be bound to dispose of the proceeding according to the law in force prior to the commencement of the Code. The argument is misconceived. Act 66of1950 did not deal with the right of a landlord to evict a tenant from land. Act 66 of 1950 was expressly repealed by the Code, but since the right to evict a tenant was governed by the general law of landlord and tenant the proviso to s. 261 had no operation. In terms the proviso to s. 261 protects a right privilege, obligation, or liability which had been acquired, accrued or incurred under the law repealed by the Code. The right to obtain possession not having been acquired under the law repealed, a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law \"then in force\". That was expressly provided bys. 6 of Act 32 of 1954 and bys. 6 of Act 29 of 1955. If at the date of the trial the tenant had acquired the right of an occupancy tenant, he could not be evicted\n\notherwise than in the manner and for reasons mentioned in s. 193 of the Code.\n\nPersonal requirement for cultivation of land is not, however, a ground on which claim, since the commencement of the Code, for ejectment may be maintained .\n\n. Section 262(2) is a transitory provision which enables a Civil Court to hear and dispose of a suit notwithstanding that under the Code such a proceeding would be triable by a Revenue Court. It is expressly declared that such a proceeding shall be disposed of according to the law in force prior to the commencement of the Code. That however docs not imply that the contract between the parties which was sought to be enforced unaffected by thcrstatutory declaration of occupancy tenants under s. 185 in favour of the tenant may be enforced. In our view sub-s. (2) is only procedural: it provides that a Civil Court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code, which if it had been instituted after the Code was passed, would have been tried by a Revenue Court, and in the disposal of such a suit the Civil Court will be governed by the procedural law applicable thereto prior to the commencement of the Code.\n\nThere is nothing in s. 262(2) which seeks to nullify the statutory conferment of occupancy rights upon persons in the position of tenants, sub-tenants or ordinary tenants against whom proceedings were taken at the date 11he11 the Code was brought into force.\n\nThe appeal therefore fails and is dismissed with costs.\n\nAppeal dismissed.", "total_entities": 122, "entities": [{"text": "RAO NIHALKARAN", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "RAO NIHALKARAN", "offset_not_found": false}}, {"text": "RAMGOPAL", "label": "RESPONDENT", "start_char": 16, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "RAMGOPAL", "offset_not_found": false}}, {"text": "January 27, 1966", "label": "DATE", "start_char": 26, "end_char": 42, "source": "ner", "metadata": {"in_sentence": "RAO NIHALKARAN\n\nRAMGOPAL\n\nJanuary 27, 1966\n\n[P. B. GAJENDRAGADKAR C. J., K. N. WANCHOO, J. C. SHAH,\n\nS. M. SIKRI AND V. RAMASWAMI, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 45, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO, J.", "label": "JUDGE", "start_char": 73, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 91, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 101, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 117, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Madhya Pradesh Land Revenue Code", "label": "STATUTE", "start_char": 137, "end_char": 169, "source": "regex", "metadata": {}}, {"text": "ss. 185(1)(ii)(a)", "label": "PROVISION", "start_char": 184, "end_char": 201, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh Land Revenue Code", "statute": "Madhya Pradesh Land Revenue Code"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 755, "end_char": 762, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh Land Revenue Code", "statute": "Madhya Pradesh Land Revenue Code"}}, {"text": "After the Madhya Pradesh Land Revenue Code", "label": "STATUTE", "start_char": 853, "end_char": 895, "source": "regex", "metadata": {}}, {"text": "s. 185", "label": "PROVISION", "start_char": 963, "end_char": 969, "source": "regex", "metadata": {"linked_statute_text": "After the Madhya Pradesh Land Revenue Code", "statute": "After the Madhya Pradesh Land Revenue Code"}}, {"text": "s. 185(1)(i)(a)", "label": "PROVISION", "start_char": 1251, "end_char": 1266, "source": "regex", "metadata": {"linked_statute_text": "After the Madhya Pradesh Land Revenue Code", "statute": "After the Madhya Pradesh Land Revenue Code"}}, {"text": "ss. 261 and 262(2)", "label": "PROVISION", "start_char": 1639, "end_char": 1657, "source": "regex", "metadata": {"linked_statute_text": "After the Madhya Pradesh Land Revenue Code", "statute": "After the Madhya Pradesh Land Revenue Code"}}, {"text": "s. 185", "label": "PROVISION", "start_char": 1676, "end_char": 1682, "source": "regex", "metadata": {"linked_statute_text": "After the Madhya Pradesh Land Revenue Code", "statute": "After the Madhya Pradesh Land Revenue Code"}}, {"text": "s. 185", "label": "PROVISION", "start_char": 2018, "end_char": 2024, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185(1)", "label": "PROVISION", "start_char": 2393, "end_char": 2402, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 3 & 4", "label": "PROVISION", "start_char": 2716, "end_char": 2725, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 261", "label": "PROVISION", "start_char": 3905, "end_char": 3911, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 262(2)", "label": "PROVISION", "start_char": 4612, "end_char": 4626, "source": "regex", "metadata": {"statute": null}}, {"text": "B. Agarwa!a", "label": "LAWYER", "start_char": 5478, "end_char": 5489, "source": "ner", "metadata": {"in_sentence": "c. B. Agarwa!a, B. Dutra, J. B. DadachanjCo.~ c. -Marhu; and Ral'i11der Narain, for the appellant. -"}}, {"text": "B. Dutra", "label": "JUDGE", "start_char": 5491, "end_char": 5499, "source": "ner", "metadata": {"in_sentence": "c. B. Agarwa!a, B. Dutra, J. B. DadachanjCo.~ c. -Marhu; and Ral'i11der Narain, for the appellant. -"}}, {"text": "B. DadachanjCo.~", "label": "LAWYER", "start_char": 5504, "end_char": 5520, "source": "ner", "metadata": {"in_sentence": "c. B. Agarwa!a, B. Dutra, J. B. DadachanjCo.~ c. -Marhu; and Ral'i11der Narain, for the appellant. -"}}, {"text": "Ral'i11der Narain", "label": "LAWYER", "start_char": 5536, "end_char": 5553, "source": "ner", "metadata": {"in_sentence": "c. B. Agarwa!a, B. Dutra, J. B. DadachanjCo.~ c. -Marhu; and Ral'i11der Narain, for the appellant. -"}}, {"text": "K. R. Chaudhry", "label": "LAWYER", "start_char": 5577, "end_char": 5591, "source": "ner", "metadata": {"in_sentence": "K. R. Chaudhry, for the respondent."}}, {"text": "R. L. lye11gar", "label": "LAWYER", "start_char": 5617, "end_char": 5631, "source": "ner", "metadata": {"in_sentence": "R. L. lye11gar, G. L. Sa11ghi and A. G. Ratnaparkhi for Intervener No."}}, {"text": "G. L. Sa11ghi", "label": "LAWYER", "start_char": 5633, "end_char": 5646, "source": "ner", "metadata": {"in_sentence": "R. L. lye11gar, G. L. Sa11ghi and A. G. Ratnaparkhi for Intervener No."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 5651, "end_char": 5668, "source": "ner", "metadata": {"in_sentence": "R. L. lye11gar, G. L. Sa11ghi and A. G. Ratnaparkhi for Intervener No."}}, {"text": "J. B. Dadachanji", "label": "JUDGE", "start_char": 5692, "end_char": 5708, "source": "ner", "metadata": {"in_sentence": "I.\n\nJ. B. Dadachanji, 0."}}, {"text": "C. Mathur", "label": "LAWYER", "start_char": 5713, "end_char": 5722, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for intervener No."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 5727, "end_char": 5742, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for intervener No."}}, {"text": "Shah", "label": "JUDGE", "start_char": 5811, "end_char": 5815, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. Ramgopal-respondcnt in this appeal-was a tenant of certain lnam land situate in village Nanda Panth in Indore Tahsil."}}, {"text": "Rao Nihalkaran", "label": "PETITIONER", "start_char": 5952, "end_char": 5966, "source": "ner", "metadata": {"in_sentence": "The appellant Rao Nihalkaran-holder of the lnamserved a notice terminating the tenancy on the ground that he needed the land for personal cultivation, and commenced an action in the Court of the Civil Judge, Class II, Indore, on July 21, 1950, against Ramgopal for a decree in ejectment.", "canonical_name": "RAO NIHALKARAN"}}, {"text": "July 21, 1950", "label": "DATE", "start_char": 6167, "end_char": 6180, "source": "ner", "metadata": {"in_sentence": "The appellant Rao Nihalkaran-holder of the lnamserved a notice terminating the tenancy on the ground that he needed the land for personal cultivation, and commenced an action in the Court of the Civil Judge, Class II, Indore, on July 21, 1950, against Ramgopal for a decree in ejectment."}}, {"text": "Ramgopal", "label": "RESPONDENT", "start_char": 6190, "end_char": 6198, "source": "ner", "metadata": {"in_sentence": "The appellant Rao Nihalkaran-holder of the lnamserved a notice terminating the tenancy on the ground that he needed the land for personal cultivation, and commenced an action in the Court of the Civil Judge, Class II, Indore, on July 21, 1950, against Ramgopal for a decree in ejectment.", "canonical_name": "RAMGOPAL"}}, {"text": "District Court, Indore", "label": "COURT", "start_char": 6301, "end_char": 6323, "source": "ner", "metadata": {"in_sentence": "During the pendency of the appeal to the District Court, Indore, by Ramgopal against the decree, Madhya Bharat Muafi & Inam Tenants and Sub-tenants Protection Act 32 of 1954 was enacted, and pursuant to the provisions thereof hearing of the appeal remained stayed till 1960."}}, {"text": "Inam Tenants and Sub-tenants Protection Act", "label": "STATUTE", "start_char": 6379, "end_char": 6422, "source": "regex", "metadata": {}}, {"text": "s. 185", "label": "PROVISION", "start_char": 6697, "end_char": 6703, "source": "regex", "metadata": {"linked_statute_text": "Inam Tenants and Sub-tenants Protection Act", "statute": "Inam Tenants and Sub-tenants Protection Act"}}, {"text": "District . Court, Indore", "label": "COURT", "start_char": 6969, "end_char": 6993, "source": "ner", "metadata": {"in_sentence": "Against the decree passed by the District ."}}, {"text": "High Court of Madhya Pradesh, Indore Bench", "label": "COURT", "start_char": 7025, "end_char": 7067, "source": "ner", "metadata": {"in_sentence": "Court, Indore, the appellant appealed to the High Court of Madhya Pradesh, Indore Bench."}}, {"text": "s. 185(1)", "label": "PROVISION", "start_char": 7391, "end_char": 7400, "source": "regex", "metadata": {"linked_statute_text": "Inam Tenants and Sub-tenants Protection Act", "statute": "Inam Tenants and Sub-tenants Protection Act"}}, {"text": "Madhya Bharat", "label": "GPE", "start_char": 7575, "end_char": 7588, "source": "ner", "metadata": {"in_sentence": "The material part of the clause reads:\n\n\"Every person who at the coming into force of this Code holds- (i)\n\n(ii) in the Madhya Bharat region- F\n\n(a) any Inam land as a tenant, or as a sub-tenant or as\n\nan ordinary tenant, shall be called an occupancy tenant, and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code.\""}}, {"text": "s. 193", "label": "PROVISION", "start_char": 7937, "end_char": 7943, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 8247, "end_char": 8253, "source": "regex", "metadata": {"statute": null}}, {"text": "Sept. 24, 1962", "label": "DATE", "start_char": 8416, "end_char": 8430, "source": "ner", "metadata": {"in_sentence": "14 of 1961 decided on Sept. 24, 1962."}}, {"text": "s. 185", "label": "PROVISION", "start_char": 8821, "end_char": 8827, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 261", "label": "PROVISION", "start_char": 8895, "end_char": 8901, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 262(2)", "label": "PROVISION", "start_char": 8906, "end_char": 8915, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 8930, "end_char": 8936, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 9266, "end_char": 9272, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(y)", "label": "PROVISION", "start_char": 9538, "end_char": 9545, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185(1)(ii)(a)", "label": "PROVISION", "start_char": 9858, "end_char": 9874, "source": "regex", "metadata": {"statute": null}}, {"text": "Gwalior", "label": "GPE", "start_char": 10068, "end_char": 10075, "source": "ner", "metadata": {"in_sentence": "In 1948 twenty Indian States including the States of Gwalior, Indore and Malwa formed themselves into a Union."}}, {"text": "Indore", "label": "GPE", "start_char": 10077, "end_char": 10083, "source": "ner", "metadata": {"in_sentence": "In 1948 twenty Indian States including the States of Gwalior, Indore and Malwa formed themselves into a Union."}}, {"text": "Malwa", "label": "GPE", "start_char": 10088, "end_char": 10093, "source": "ner", "metadata": {"in_sentence": "In 1948 twenty Indian States including the States of Gwalior, Indore and Malwa formed themselves into a Union."}}, {"text": "United States", "label": "GPE", "start_char": 10282, "end_char": 10295, "source": "ner", "metadata": {"in_sentence": "Under the Constitution, Madhya Bharat was formed as a Part B State out of the territories of the United States of Gwalior, Indore & Malwa and certain enclaves merged therein and the Chief Commissioner's Province of Panth Piploda."}}, {"text": "Panth Piploda", "label": "GPE", "start_char": 10400, "end_char": 10413, "source": "ner", "metadata": {"in_sentence": "Under the Constitution, Madhya Bharat was formed as a Part B State out of the territories of the United States of Gwalior, Indore & Malwa and certain enclaves merged therein and the Chief Commissioner's Province of Panth Piploda."}}, {"text": "States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 10425, "end_char": 10456, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 10472, "end_char": 10486, "source": "ner", "metadata": {"in_sentence": "Under the States Reorganisation Act, 1956 a new State of Madhya Pradesh was formed as from November 1, 1956 consisting of the Part B State of Madhya Bharat, parts of the former State of Madhya Pradesh, the territories of the States of Bhopal and Vindhya Pradesh and Sironj sub-division of Kotah in the former State of Rajasthan."}}, {"text": "November 1, 1956", "label": "DATE", "start_char": 10506, "end_char": 10522, "source": "ner", "metadata": {"in_sentence": "Under the States Reorganisation Act, 1956 a new State of Madhya Pradesh was formed as from November 1, 1956 consisting of the Part B State of Madhya Bharat, parts of the former State of Madhya Pradesh, the territories of the States of Bhopal and Vindhya Pradesh and Sironj sub-division of Kotah in the former State of Rajasthan."}}, {"text": "Bhopal", "label": "GPE", "start_char": 10650, "end_char": 10656, "source": "ner", "metadata": {"in_sentence": "Under the States Reorganisation Act, 1956 a new State of Madhya Pradesh was formed as from November 1, 1956 consisting of the Part B State of Madhya Bharat, parts of the former State of Madhya Pradesh, the territories of the States of Bhopal and Vindhya Pradesh and Sironj sub-division of Kotah in the former State of Rajasthan."}}, {"text": "Vindhya Pradesh", "label": "GPE", "start_char": 10661, "end_char": 10676, "source": "ner", "metadata": {"in_sentence": "Under the States Reorganisation Act, 1956 a new State of Madhya Pradesh was formed as from November 1, 1956 consisting of the Part B State of Madhya Bharat, parts of the former State of Madhya Pradesh, the territories of the States of Bhopal and Vindhya Pradesh and Sironj sub-division of Kotah in the former State of Rajasthan."}}, {"text": "Kotah", "label": "GPE", "start_char": 10704, "end_char": 10709, "source": "ner", "metadata": {"in_sentence": "Under the States Reorganisation Act, 1956 a new State of Madhya Pradesh was formed as from November 1, 1956 consisting of the Part B State of Madhya Bharat, parts of the former State of Madhya Pradesh, the territories of the States of Bhopal and Vindhya Pradesh and Sironj sub-division of Kotah in the former State of Rajasthan."}}, {"text": "Rajasthan", "label": "GPE", "start_char": 10733, "end_char": 10742, "source": "ner", "metadata": {"in_sentence": "Under the States Reorganisation Act, 1956 a new State of Madhya Pradesh was formed as from November 1, 1956 consisting of the Part B State of Madhya Bharat, parts of the former State of Madhya Pradesh, the territories of the States of Bhopal and Vindhya Pradesh and Sironj sub-division of Kotah in the former State of Rajasthan."}}, {"text": "Legislature of the Part B State of Madhya Bharat", "label": "ORG", "start_char": 11193, "end_char": 11241, "source": "ner", "metadata": {"in_sentence": "The Legislature of the Part B State of Madhya Bharat enacted Act 66 of 1950 to consolidate and declare the law relating to revenue administration in the United States of Gwalior, Indore and Malwa and land revenue, land tenure\n\nA and other matters connected with the land in the Ryotwari tracts or\n\nl\" villages of the United States."}}, {"text": "Section 54", "label": "PROVISION", "start_char": 11521, "end_char": 11531, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 55", "label": "PROVISION", "start_char": 11652, "end_char": 11657, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 73", "label": "PROVISION", "start_char": 11662, "end_char": 11667, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 74", "label": "PROVISION", "start_char": 11824, "end_char": 11829, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 74", "label": "PROVISION", "start_char": 11834, "end_char": 11839, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76", "label": "PROVISION", "start_char": 12439, "end_char": 12444, "source": "regex", "metadata": {"statute": null}}, {"text": "Act and the Abolition of Jagirs Act", "label": "STATUTE", "start_char": 12829, "end_char": 12864, "source": "regex", "metadata": {}}, {"text": "s. 2(ii)", "label": "PROVISION", "start_char": 13357, "end_char": 13365, "source": "regex", "metadata": {"linked_statute_text": "Another statute which has a bearing on the dispute in this appeal-the Madhya Bharat Muafi and lnam Tenants and Sub- E tenants Protection Act", "statute": "Another statute which has a bearing on the dispute in this appeal-the Madhya Bharat Muafi and lnam Tenants and Sub- E tenants Protection Act"}}, {"text": "s. 54", "label": "PROVISION", "start_char": 13518, "end_char": 13523, "source": "regex", "metadata": {"linked_statute_text": "Another statute which has a bearing on the dispute in this appeal-the Madhya Bharat Muafi and lnam Tenants and Sub- E tenants Protection Act", "statute": "Another statute which has a bearing on the dispute in this appeal-the Madhya Bharat Muafi and lnam Tenants and Sub- E tenants Protection Act"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 13547, "end_char": 13551, "source": "regex", "metadata": {"linked_statute_text": "Another statute which has a bearing on the dispute in this appeal-the Madhya Bharat Muafi and lnam Tenants and Sub- E tenants Protection Act", "statute": "Another statute which has a bearing on the dispute in this appeal-the Madhya Bharat Muafi and lnam Tenants and Sub- E tenants Protection Act"}}, {"text": "June 30, 1948", "label": "DATE", "start_char": 13837, "end_char": 13850, "source": "ner", "metadata": {"in_sentence": "t or ordinary tenant shall not pay rent higher than what he was paying in tile agricultural year ending G June 30, 1948."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 13855, "end_char": 13859, "source": "regex", "metadata": {"linked_statute_text": "Another statute which has a bearing on the dispute in this appeal-the Madhya Bharat Muafi and lnam Tenants and Sub- E tenants Protection Act", "statute": "Another statute which has a bearing on the dispute in this appeal-the Madhya Bharat Muafi and lnam Tenants and Sub- E tenants Protection Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 14280, "end_char": 14284, "source": "regex", "metadata": {"statute": null}}, {"text": "Muafidar", "label": "PETITIONER", "start_char": 14322, "end_char": 14330, "source": "ner", "metadata": {"in_sentence": "By sub-s. (11) of s. 4 it was provided that if the Inamdar, Muafidar or Istumurardar had taken possession of the land illegally from a tenant, sub-tenant or an ordinary tenant after August 15, 1947 such a tenant, sub-tenant or an ordinary\n\ntenant may apply to the Tahsildar to be restored to possession of A 11uch land and on such application the Tahsildar shall cause the land to be returned to such tenant, sub-tenant or ordinary tenant from the Inamdar, Muafidar or Istumurardar, as the case may be."}}, {"text": "Istumurardar", "label": "RESPONDENT", "start_char": 14334, "end_char": 14346, "source": "ner", "metadata": {"in_sentence": "By sub-s. (11) of s. 4 it was provided that if the Inamdar, Muafidar or Istumurardar had taken possession of the land illegally from a tenant, sub-tenant or an ordinary tenant after August 15, 1947 such a tenant, sub-tenant or an ordinary\n\ntenant may apply to the Tahsildar to be restored to possession of A 11uch land and on such application the Tahsildar shall cause the land to be returned to such tenant, sub-tenant or ordinary tenant from the Inamdar, Muafidar or Istumurardar, as the case may be."}}, {"text": "August 15, 1947", "label": "DATE", "start_char": 14444, "end_char": 14459, "source": "ner", "metadata": {"in_sentence": "By sub-s. (11) of s. 4 it was provided that if the Inamdar, Muafidar or Istumurardar had taken possession of the land illegally from a tenant, sub-tenant or an ordinary tenant after August 15, 1947 such a tenant, sub-tenant or an ordinary\n\ntenant may apply to the Tahsildar to be restored to possession of A 11uch land and on such application the Tahsildar shall cause the land to be returned to such tenant, sub-tenant or ordinary tenant from the Inamdar, Muafidar or Istumurardar, as the case may be."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 14769, "end_char": 14773, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 3 & 4", "label": "PROVISION", "start_char": 15449, "end_char": 15458, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 158", "label": "PROVISION", "start_char": 16143, "end_char": 16149, "source": "regex", "metadata": {"statute": null}}, {"text": "Inamdar or Concessional holder as defined in the Madhya Bharat Land Revenue and Tenancy Act", "label": "STATUTE", "start_char": 16583, "end_char": 16674, "source": "regex", "metadata": {}}, {"text": "s. 2(y)", "label": "PROVISION", "start_char": 17058, "end_char": 17065, "source": "regex", "metadata": {"linked_statute_text": "Inamdar or Concessional holder as defined in the Madhya Bharat Land Revenue and Tenancy Act", "statute": "Inamdar or Concessional holder as defined in the Madhya Bharat Land Revenue and Tenancy Act"}}, {"text": "s. 185", "label": "PROVISION", "start_char": 17156, "end_char": 17162, "source": "regex", "metadata": {"linked_statute_text": "Inamdar or Concessional holder as defined in the Madhya Bharat Land Revenue and Tenancy Act", "statute": "Inamdar or Concessional holder as defined in the Madhya Bharat Land Revenue and Tenancy Act"}}, {"text": "s. 185", "label": "PROVISION", "start_char": 18064, "end_char": 18070, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 18597, "end_char": 18603, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 73", "label": "PROVISION", "start_char": 19202, "end_char": 19207, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 74", "label": "PROVISION", "start_char": 19603, "end_char": 19608, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76", "label": "PROVISION", "start_char": 19773, "end_char": 19778, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 74", "label": "PROVISION", "start_char": 20097, "end_char": 20102, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 20470, "end_char": 20474, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 74", "label": "PROVISION", "start_char": 20568, "end_char": 20573, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 74", "label": "PROVISION", "start_char": 21444, "end_char": 21449, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 21572, "end_char": 21578, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168(2)", "label": "PROVISION", "start_char": 21673, "end_char": 21682, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 168", "label": "PROVISION", "start_char": 21823, "end_char": 21829, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 74", "label": "PROVISION", "start_char": 21910, "end_char": 21915, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 74", "label": "PROVISION", "start_char": 22006, "end_char": 22011, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 22084, "end_char": 22090, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 75 & 76", "label": "PROVISION", "start_char": 22244, "end_char": 22255, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 22274, "end_char": 22280, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 22472, "end_char": 22478, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185(l)(ii)(b)", "label": "PROVISION", "start_char": 22940, "end_char": 22956, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 185", "label": "PROVISION", "start_char": 23306, "end_char": 23312, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 261", "label": "PROVISION", "start_char": 23523, "end_char": 23529, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 261", "label": "PROVISION", "start_char": 23781, "end_char": 23787, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 262", "label": "PROVISION", "start_char": 24504, "end_char": 24515, "source": "regex", "metadata": {"statute": null}}, {"text": "Any case pending in Civil Court at the coming into force of this Code", "label": "STATUTE", "start_char": 24581, "end_char": 24650, "source": "regex", "metadata": {}}, {"text": "Civil Court according to the law in force prior to the commencement of this Code", "label": "STATUTE", "start_char": 24752, "end_char": 24832, "source": "regex", "metadata": {}}, {"text": "s. 185", "label": "PROVISION", "start_char": 25163, "end_char": 25169, "source": "regex", "metadata": {"linked_statute_text": "Civil Court according to the law in force prior to the commencement of this Code", "statute": "Civil Court according to the law in force prior to the commencement of this Code"}}, {"text": "s. 261", "label": "PROVISION", "start_char": 25198, "end_char": 25204, "source": "regex", "metadata": {"linked_statute_text": "Civil Court according to the law in force prior to the commencement of this Code", "statute": "Civil Court according to the law in force prior to the commencement of this Code"}}, {"text": "s. 261", "label": "PROVISION", "start_char": 25855, "end_char": 25861, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 261", "label": "PROVISION", "start_char": 25904, "end_char": 25910, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 193", "label": "PROVISION", "start_char": 26506, "end_char": 26512, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 262(2)", "label": "PROVISION", "start_char": 26687, "end_char": 26701, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Court to hear and dispose of a suit notwithstanding that under the Code", "label": "STATUTE", "start_char": 26744, "end_char": 26821, "source": "regex", "metadata": {}}, {"text": "s. 185", "label": "PROVISION", "start_char": 27180, "end_char": 27186, "source": "regex", "metadata": {"linked_statute_text": "Civil Court to hear and dispose of a suit notwithstanding that under the Code", "statute": "Civil Court to hear and dispose of a suit notwithstanding that under the Code"}}, {"text": "s. 262(2)", "label": "PROVISION", "start_char": 27685, "end_char": 27694, "source": "regex", "metadata": {"linked_statute_text": "Civil Court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code", "statute": "Civil Court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code"}}]}
{"document_id": "1966_3_437_440_EN", "year": 1966, "text": "' .,\n\nGIRDHARILAL AMRATLAL SHODAN AND OTHERS\n\nSTATE OF GUJARAT AND OTHERS\n\nJanuary 28, 1966\n\n[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]\n\nLand Acquisition Act, 1894 (I of 1894)-N_otification under •: 6 invalid and ineffective-Po-.ver of Governnzent to issue fresh not1ficatlon.\n\nWhere a notification under s. 6 of the Land Acquisition Act, 1894 is invalid, the Government may treat it as ineffective and issue in its place a fresh notification under s. 6. Nothing in s. 48 of the Act precludes the Government from doing so.\n\nThe cancellation of the earlier notification is only a recognition of the invalidity of that notification.\n\n[439 B-C]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1070 of 1965.\n\nAppeal from the judgment and order dated April 2, 1965 of the Gujarat High Court in Special Civil Application No. 584 of 1961.\n\nNire11 De, Additional Solicitor-General and J. B. Dadachanji for the appellants.\n\nR. Ganapathy Iyer and B. R. G. K. Achar, for respondent Nos. I and 2.\n\nArun H. Mehta, M. N. Shroff and I. N. Shroff, for respondent No. 3.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J, : On August, 3, 1960, the Government.of Gujarat issued a notification under s. 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) stating that the land measuring about 7151 sq. yards in Final Plot No. 460 of the Town Planning Scheme No. III of Elisbridge in Ahmedabad taluka city, village Changispur, was likely to be needed for a public purpose, viz., for construction of houses for Shri Krishnakunj Government Servants Co-operative Housing Society, Ltd., Ahmedabad. The land is the subject-matter of a trust of which appellant No. 1 is the trustee and appellants Nos. 2 to 6 are the beneficiaries. An enquiry under s. 5-A of the Act was duly held, and a report under\n\n5. 5A(2) was made to the Government. On July 18, 1961, the State Government issued a notification under s. 6 of the Act stating that the land was needed to be acquired for the aforesaid public purpose at the expense of Shri Krishnakunj Government Servants Co-operative Housing Society Ltd. On September 22, 1961, the appellants filed a writ application in the High Court of Gujarat 437\n\n4 38\n\nSUPREME COURT REPORTS\n\n[1966] 3 S.C.R.\n\npraying for an order quashing the notification under s. 6 dated July 18, 1961. During the pendency of this application, the Government issued a notification dated April 28, 1964 cancelling the aforesaid notification dated July 18, 1961. On August 14, 1964, the\n\nGovrnment issued a fresh notification under s. 6 stating that the land was needed to be acquired at the public expense for a public purpose, viz., for the housing scheme undertaken by Shri Krishnakunj Government Servants Co-operative Housing Society, Ltd., Ahmedabad with the sanction of the Government. The appellants were thereupon allowed to amend the writ petition, and by the amended writ petition, they prayed for an order quashing the notification under s. 6 dated August 14, 1964 as also the notification under s. 4 dated August 3, 1960. On April 2, 1965, the High Court dismissed the application. The appellants now appeal to this Court on a certificate granted by the High Court.\n\nCounsel for the appellants submitted that the power of the State Government to cancel a notification under s. 6 of the Act implied by s. 21 of the General Clauses Act, 1897 is subject to the condition that the Government should withdraw from the acquisition as provided for in s. 48 of the Act, by cancelling the notification under s. 6 dated July 18, 1961, the Government must be taken to have withdrawn from the acquisition and cancelled the notification under s. 4 dated August 3, 1960 also and consequently the Government could not issue the notification under s. 6 dated August 14, 1964 without issuing a fresh notification under s. 4 and making a fresh enquiry under s. SA.\n\nCounsel for the respondents disputed the correctness of this submission.\n\nIt is to be noticed that the notification under s. 6 dated July 18, 1961 stated that the land was required for a public purpose at the expense of Shri Krishnakunj Government Servants Cooperative Housing Society Ltd. The Government had no power to issue this notification. Having regard to the proviso to s. 6 of the Act, a declaration for acquisition of the land for a public purpose could only be made if the compensation to be awarded for it was to be paid wholly or partly out of public revenues or some fund controlled or managed by a local authority. The Government had no power to issue a notification for acquisition for a public purpose where the compensation was to be paid entirely by a company. The notification dated July 18, 1961 was, therefore, invalid and of no effect, see Shyam Behari v. State of Madhya Pradesh( ). The appellants filed the writ petition challenging the aforesaid notification on this ground. The challenge was justified and the notification was liable to be quashed by the Court. The State Government realised that the notification was invalid, and without waiting for an order of Court, cancelled the notification on April\n\n(I) [196416 S.C.R. 636; A.l.R. 1965 S.C. 427.\n\n~'\n\n1 ,\n\nSHODAN v. GUJARAT (Bachawat, !.)\n\n' '' 439\n\n28, 1964. The cancellation was in recognition of the invalidity of the notification. The Government had no intention of withdrawing from the acquisition. Soon after the cancellation, the Government issued a fresh notification under s. 6 where, as in this case, the notification under s. 6 is incompetent and invalid, the Government may treat it as ineffective and issue a fresh notification under s. 6. This is what, in substance, the Government did in this case. The cancellation on April 28, 1964 was no more than a recognition of the invalidity of the earlier notification.\n\nThere is nothing .in s. 48, which precluded the Government from treating the earlier invalid notification as ineffective and issuing in its place an effective notification under. s. 6. Where the notification under s. 6 is lawful and valid, a question may well arise whether the Government can cancel it without withdrawing from ' the acquisition, as provided for under s. 48. But no such question arises in this case and we express no opinion on it.\n\nCounsel for the appellants next submitted that on issuing the notification dated July 18, 1961 the power of the State Government to issue a notification under s. 6 was exhausted and the Government could not issue a fresh notification under s. 6. There is no substance in this contention. The notification dated July 18, 1961 was invalid. By the issue of this notification, the Government had not effectively exercised its power under s. 6. In the circumstances, the Government could well issue the fresh notification under s. 6 dated August 14, 1964.\n\nCounsel for the appellants next submitted that the notification under s. 6 must be issued without unreasonable delay after the issue of the notification under s. 4 and consequently, the notification dated August 14, 1964 is invalid, as it was issued after unreasonable delay. This contention was not raised in the High Court. On September 25, 1961, soon after the filing of the writ petition, the appellants obtained an injunction restraining the Government from proceeding with the acquisition. We are informed that this injunction continued for some time and was modified at a later date. Until the modification of the injunction, the Government could not take further steps in the acquisition. The question whether there was unreasonable delay in the issuing of the notification dated August 14, 1964 was not put in issue and was not investigated in the Court below. We, therefore, indicated in the course of the argument that the appellants cannot be allowed to urge this point for the first time in this Court. We express no opinion one way or the other whether the Government is bound to issue the notification under s. 6 without reasonable delay after the issue of the notification under s. 4.\n\nIn the High Court, the appellants c•ntended that the public purpose set out in the notification dated August 14, 1964 was MIO Sup.C.I./66-15\n\n440 SuPRBMB COUllT REPORTS [l 966) 3 S.C.R.\n\ndifferent from the public purpose set out in the notification dated July 18, 1961 and the Government could not issue the notification dated August 14, 1964 without issuing a fresh notification under s. 4. The High Court repelled this contention. It found that the public purpose set out in the notification dated August 14, 1964 was identical with the public purpose set out in the notification dated July 18, 1961. This finding is no longer challenged before us.\n\nThe appeal fails, and is dismissed with costs.\n\nAppeal dismissed.", "total_entities": 64, "entities": [{"text": "' .,\n\nGIRDHARILAL AMRATLAL SHODAN AND OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "GIRDHARILAL AMRATHLAL SHODAN AND ORS", "offset_not_found": false}}, {"text": "STATE OF GUJARAT AND OTHERS", "label": "RESPONDENT", "start_char": 46, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT AND OTHERS", "offset_not_found": false}}, {"text": "January 28, 1966", "label": "DATE", "start_char": 75, "end_char": 91, "source": "ner", "metadata": {"in_sentence": "GIRDHARILAL AMRATLAL SHODAN AND OTHERS\n\nSTATE OF GUJARAT AND OTHERS\n\nJanuary 28, 1966\n\n[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]"}}, {"text": "A. K. SARKAR, J.", "label": "JUDGE", "start_char": 94, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 111, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 128, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 150, "end_char": 176, "source": "regex", "metadata": {}}, {"text": "s. 6", "label": "PROVISION", "start_char": 318, "end_char": 322, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 330, "end_char": 356, "source": "regex", "metadata": {}}, {"text": "s. 6", "label": "PROVISION", "start_char": 462, "end_char": 466, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "s. 48", "label": "PROVISION", "start_char": 479, "end_char": 484, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 781, "end_char": 799, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and order dated April 2, 1965 of the Gujarat High Court in Special Civil Application No."}}, {"text": "J. B. Dadachanji", "label": "LAWYER", "start_char": 891, "end_char": 907, "source": "ner", "metadata": {"in_sentence": "Nire11 De, Additional Solicitor-General and J. B. Dadachanji for the appellants."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 929, "end_char": 946, "source": "ner", "metadata": {"in_sentence": "R. Ganapathy Iyer and B. R. G. K. Achar, for respondent Nos."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 951, "end_char": 968, "source": "ner", "metadata": {"in_sentence": "R. Ganapathy Iyer and B. R. G. K. Achar, for respondent Nos."}}, {"text": "Arun H. Mehta", "label": "LAWYER", "start_char": 1000, "end_char": 1013, "source": "ner", "metadata": {"in_sentence": "Arun H. Mehta, M. N. Shroff and I. N. Shroff, for respondent No."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 1015, "end_char": 1027, "source": "ner", "metadata": {"in_sentence": "Arun H. Mehta, M. N. Shroff and I. N. Shroff, for respondent No.", "canonical_name": "M. N. Shroff"}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 1032, "end_char": 1044, "source": "ner", "metadata": {"in_sentence": "Arun H. Mehta, M. N. Shroff and I. N. Shroff, for respondent No.", "canonical_name": "M. N. Shroff"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1202, "end_char": 1206, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 1214, "end_char": 1240, "source": "regex", "metadata": {}}, {"text": "Krishnakunj Government Servants Co-operative Housing Society, Ltd.,", "label": "ORG", "start_char": 1537, "end_char": 1604, "source": "ner", "metadata": {"in_sentence": "for construction of houses for Shri Krishnakunj Government Servants Co-operative Housing Society, Ltd., Ahmedabad."}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 1605, "end_char": 1614, "source": "ner", "metadata": {"in_sentence": "for construction of houses for Shri Krishnakunj Government Servants Co-operative Housing Society, Ltd., Ahmedabad."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 1765, "end_char": 1769, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "July 18, 1961", "label": "DATE", "start_char": 1858, "end_char": 1871, "source": "ner", "metadata": {"in_sentence": "On July 18, 1961, the State Government issued a notification under s. 6 of the Act stating that the land was needed to be acquired for the aforesaid public purpose at the expense of Shri Krishnakunj Government Servants Co-operative Housing Society Ltd. On September 22, 1961, the appellants filed a writ application in the High Court of Gujarat 437\n\n4 38\n\nSUPREME COURT REPORTS\n\n[1966] 3 S.C.R.\n\npraying for an order quashing the notification under s. 6 dated July 18, 1961."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 1922, "end_char": 1926, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "Krishnakunj Government Servants Co-operative Housing Society Ltd.", "label": "ORG", "start_char": 2042, "end_char": 2107, "source": "ner", "metadata": {"in_sentence": "On July 18, 1961, the State Government issued a notification under s. 6 of the Act stating that the land was needed to be acquired for the aforesaid public purpose at the expense of Shri Krishnakunj Government Servants Co-operative Housing Society Ltd. On September 22, 1961, the appellants filed a writ application in the High Court of Gujarat 437\n\n4 38\n\nSUPREME COURT REPORTS\n\n[1966] 3 S.C.R.\n\npraying for an order quashing the notification under s. 6 dated July 18, 1961."}}, {"text": "High Court of Gujarat 437\n\n4 38", "label": "COURT", "start_char": 2178, "end_char": 2209, "source": "ner", "metadata": {"in_sentence": "On July 18, 1961, the State Government issued a notification under s. 6 of the Act stating that the land was needed to be acquired for the aforesaid public purpose at the expense of Shri Krishnakunj Government Servants Co-operative Housing Society Ltd. On September 22, 1961, the appellants filed a writ application in the High Court of Gujarat 437\n\n4 38\n\nSUPREME COURT REPORTS\n\n[1966] 3 S.C.R.\n\npraying for an order quashing the notification under s. 6 dated July 18, 1961."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2304, "end_char": 2308, "source": "regex", "metadata": {"statute": null}}, {"text": "August 14, 1964", "label": "DATE", "start_char": 2491, "end_char": 2506, "source": "ner", "metadata": {"in_sentence": "On August 14, 1964, the\n\nGovrnment issued a fresh notification under s. 6 stating that the land was needed to be acquired at the public expense for a public purpose, viz.,"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2557, "end_char": 2561, "source": "regex", "metadata": {"statute": null}}, {"text": "Krishnakunj Government Servants Co-operative Housing Society, Ltd.", "label": "ORG", "start_char": 2702, "end_char": 2768, "source": "ner", "metadata": {"in_sentence": "for the housing scheme undertaken by Shri Krishnakunj Government Servants Co-operative Housing Society, Ltd., Ahmedabad with the sanction of the Government."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2974, "end_char": 2978, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 3032, "end_char": 3036, "source": "regex", "metadata": {"statute": null}}, {"text": "August 3, 1960", "label": "DATE", "start_char": 3043, "end_char": 3057, "source": "ner", "metadata": {"in_sentence": "The appellants were thereupon allowed to amend the writ petition, and by the amended writ petition, they prayed for an order quashing the notification under s. 6 dated August 14, 1964 as also the notification under s. 4 dated August 3, 1960."}}, {"text": "April 2, 1965", "label": "DATE", "start_char": 3062, "end_char": 3075, "source": "ner", "metadata": {"in_sentence": "On April 2, 1965, the High Court dismissed the application."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 3311, "end_char": 3315, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 3338, "end_char": 3343, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 3351, "end_char": 3376, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 48", "label": "PROVISION", "start_char": 3481, "end_char": 3486, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 3536, "end_char": 3540, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 3667, "end_char": 3671, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 3769, "end_char": 3773, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 3839, "end_char": 3843, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 4007, "end_char": 4011, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "Krishnakunj Government Servants Cooperative Housing Society Ltd.", "label": "ORG", "start_char": 4110, "end_char": 4174, "source": "ner", "metadata": {"in_sentence": "It is to be noticed that the notification under s. 6 dated July 18, 1961 stated that the land was required for a public purpose at the expense of Shri Krishnakunj Government Servants Cooperative Housing Society Ltd. The Government had no power to issue this notification."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 4263, "end_char": 4267, "source": "regex", "metadata": {"linked_statute_text": "the General Clauses Act, 1897", "statute": "the General Clauses Act, 1897"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 5451, "end_char": 5455, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 5503, "end_char": 5507, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 5616, "end_char": 5620, "source": "regex", "metadata": {"statute": null}}, {"text": "April 28, 1964", "label": "DATE", "start_char": 5703, "end_char": 5717, "source": "ner", "metadata": {"in_sentence": "The cancellation on April 28, 1964 was no more than a recognition of the invalidity of the earlier notification."}}, {"text": "s. 48", "label": "PROVISION", "start_char": 5818, "end_char": 5823, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 5976, "end_char": 5980, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 6011, "end_char": 6015, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 6166, "end_char": 6171, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 6407, "end_char": 6411, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 6488, "end_char": 6492, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 6682, "end_char": 6686, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 6771, "end_char": 6775, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 6870, "end_char": 6874, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 6959, "end_char": 6963, "source": "regex", "metadata": {"statute": null}}, {"text": "September 25, 1961", "label": "DATE", "start_char": 7129, "end_char": 7147, "source": "ner", "metadata": {"in_sentence": "On September 25, 1961, soon after the filing of the writ petition, the appellants obtained an injunction restraining the Government from proceeding with the acquisition."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 7923, "end_char": 7927, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 7995, "end_char": 7999, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 8388, "end_char": 8392, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_441_445_EN", "year": 1966, "text": ", F\n\nMOHD. RAZA DABSTANI\n\nSTATE OF BOMBAY AND ORS.\n\nJanuary 28, 1966\n\n[A. K. SARKAR AND J. R. MUDHOLKAR, JJ.]\n\nConstitution of lnd1'a, Art. 5-Cltizenship claimed by foreign national on basis of Indian domicilt!--Onus to prove domicile-Residence hether suf]icient proof-Foreign national whether can be Indian citizen.\n\nThe appellant, an Iranian national by birth, came to India. in. 1938.\n\nIn 1945 he obtained an Iranian passport and went to Iraq on p1lgnmage.\n\nOn return to India he was registered under the Registeration of Foreigners Rules, 1939, as an Iranian national. On May 25 .. 1951 he obtained a residential permit under the Foreigners Order, 1938 permitting him to reside in India up to a certain date. This permission was extended from time to time at his request.\n\nIn his applications for this purpose, he described himself as an Iranian national. On December 2, 1957 his last request was refused and he was asked under the Foreigners' Act, 1946 to leave India. He then filed a suit in the City Civil Court Bombay, for a declaration that he was an Indian citizen and for an injunction restraining the authorities from taking action against him on the basis that he was a foreigner.\n\nThe suit was dismissed by the City Civil Court and an appeal to the High Court failed.\n\nWith special leave the appellant came to this Court, claiming citizenship of India under Art. S of the Constitution on the basis that he had acquired Indian domicile.\n\nHELD : (i) Residence alone is insufficient evidence to establish acquisition of a new domicile; there also has to be proof that the residence in a country was with the intention of making it the person's home. [443 Al\n\n(ii) An Indian citizen cannot be the national of another State. [443 G-Hl\n\nState Trading Corporation v. Commercial Tax Officer, [1964] 4 S.C.R. 99 : A.I.R. 1963 S.C. 1611, relied on.\n\nWhen in his applications the appellant described himself as an Iranian national he was saying that be was not an Indian citizen. If he was not an Indian citizen he did not have an Indian domicile; for if he had such a domicile, he would be an Indian citizen. [444 A-BJ\n\n(iii) The onus of proving his change of domicile from Iran to India was on the appellont. The evidence produced by him did not discharge the onus. [445 Al\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 289 of 1964.\n\nAppeal by special leave from the judgment and order dated October 3, 1963 of the Bombay High Court in Appeal No. 295 of 1960 from Original Decree.\n\nS. J. Sorbjee, G. L. Sanghi, B. R. Agarwala, M. S. Patel and H. K. Puri, for the appellant.\n\nSUPREME COURT REPORTS\n\n\nC. K Daphtary, Allorney-General, B. R. L. Iyengar and A B. R. G. K. Achar for R. H. Dhebar, for respondents.\n\nThe Judgment of the Court was delivered by\n\nSarkar J. The appellant, an Iranian national by birth, came to India from Yezd in Iran with his maternal uncle, an Iranian national, in 1938 when he was about thirteen years old. The record does not show on what passport he entered India. In January 1945 he obtained an Iranian passport and went to Iraq on pilgrimage. This passport showed that he held an identity card of the Iranian Government. On return from the pilgrimage he was on March 22, 19% registered under the Registration of Foreigners Rules, 1939 as an Iranian national. On May 25, 1951, he obtained a residential permit under the Foreigners Order, 1938 permitting him to reside in India upto a certain di\\te. This permission was extended from time to time at his request. On\n\nDecember 2, 1957 his last request was refused and he was ordered under the Foreigners Act, 1946 to leave India. On December 14, 1957, he filed a suit in the City Civil Court at Bombay for a declaration that he was a citizen of India and for an injunction restraining the State of Bombay, the Police of Bombay and the\n\nUnion of India from taking action against him on the footing that he was a foreigner and not a citizen of India. This suit was dismissed by the City Civil Court and an appeal by the appellant to the High Court at Bombay also failed. He has now appealed to this Court with special leave.\n\nThe appellant bases his claim to citizenship of India on Art. 5 of the Constitution. Under that article every person who had his domicile in the territory of India and had been ordinarily resident there for not less than five years immediately preceding the commencement of the Constitution was declared to be a citizen of India. Article 5 of the Constitution came into force on November 21, 1949. It is not in dispute that the appellant had been ordinarily resident in tlic territory of India for over five years before November 21, 1949. The only question in this appeal Is whether he had his domicile in the territory of India on that date.\n\nWhen the appellant arrived in India he was a minor. His domicile was, therefore, that of his father which was Iranian.\n\nThis is not disputed. The appellant contends that he had changed his Iranian domicile into an Indian domicile prior to November 21, 1949. The onus of proving the change of domicile is, of course entirely on the appellant. Such change can be proved if it is established that the appellant had made up his mind to make India his home, that is to say, remain in India permanently. The facts established are that since 1938 excepting for a visit to Iraq lasting about a year he has all along been a rci; ident of Bombay. It is\n\nwell established that residence alone is insufficient evidence to establish acquisition of a new domicile; there has also to be proof that the residence in a country was with the intention of making it the person's home.\n\nNow on the question of intention of the appellant to make Inilia his home, there is very little evidence. The evidence shows that after his arrival in India the appellant was put in a school but before he attained majority he took up the job of a cashier in a restaurant in Bombay. He attained majority sometime in 1943.\n\nPrior to that he was not entitled under the law to change his domicile. He has to establish the change in domicile by proving that after 1943 and before November 21, 1949 he had formed the intention of making India his home. There is very little during this short period from which one can draw an inference that he had intended to change his domicile. He was then quite young. During this period he left India on an Iranian passport declaring himself to be an Iranian national. On his return he was registered as an Iranian national on March 23, 1946. These facts do not support the appellant.\n\nIt is said that he had . done all these because under the Jaw then obtaining he had no option. It has. however to be pointed out that it was open to him then, if he wished to change his nationality, to get himself naturalised as a British Indian subject under the Naturalisation Act of 1926. The only other fact which happened between 1943 and 1949 to which .our attention was drawn was that in 1947 he took over a restaurant business on royalty basis for a period of three years. From this fact alone it is impossible to hold that the appellant had decided. to make India his home. We do not even know whether during this period he was economically independent or had his own resi-. dential establishment.\n\n The conduct of the appellant subsequent to 1949 does not help to establish that he had earlier formed the intention to live in India for good. As we have already stated, he obtained a residential permit and from time to time applied for its extension.\n\nIn these applications he described himself as an Iranian national.\n\nIt was contended that this description does not militate against' his claim to an Indian domicile. It was said that a person may be a national of one country and have his domicile in another country. Here however the question of domicile arises because. on the basis of it the appellant claims citizenship of India. We are not aware that it is possible to be a citizen of India and a national of another country. The decision of this Court in the State • Trading Corporation of India Ltd. v. Commercial Tax Officer('). would indicate that that cannot be done. It was there said at p. 114, \"All citizens are nationals of a particular State but all nationals may not be citizens of the State.\" It would follow from\n\n(') [196414 S.CJl-:99; A.i.R. 1963 S.C. 1811.\n\n444 SUPREME COUllT llBPOllTS\n\n(1966] 3 S.C.R.\n\nthat that an Indian citizen cannot be a national of another State.\n\nTherefore, when the appellant described himself as an Iranian national in has applications for a residential permit and for extensions thereof after l 950, he was saying that he was not an Indian citizen. If he was not an Indian citizen, he did not have an Indian domicile, for if he had such a domicile, he would have been a citizen of India. These applications, therefore, furnish evidence that even after 1950 he was not of Indian domicile. We may also mention that after 1950 he obtained a duplicate of his registration certificate under the Foreigners' Rules as the original had been lost and in the application for it he described himself as an Iranian national. Then we find that in one of the applications for extension of residential permit he had stated that he was desirous of staying in India for business and so, not for making it his home.\n\nAs late as March 30, 1957 he described himself as an Iranian national in the application that he made for naturalisation as an Indian citizen which was refused.\n\nHe could have all along claimed Indian citizenship on the basis of Indian domicile if he had one.\n\nInstead of making such a claim or any effort in that regard he continued proceeding on the asis that he was an Iranian national.\n\nIt appears that in 1950 he first entered into a partnership to run a restaurant of which he became the sole proprietor in March\n\n1953. This by itself is not enough to establish the necessary intention. In any case it c-, mnot show that prior to November 1949 he had acquired Indian domicile. It has to be remembered that notwithstanding the commencement of a business of his own, the appellant went on describing himself as an Iranian national indicating thereby that he had not acquired an Indian domicile though he was carrying on a business in this country. We may also point out that his father had carried on a similar business in India for thirty years and had gone back with the money earned here and settled down in his village Yezd in Iran. Then we find that the appellant had on more than one occasion asked his father to come over to India to look after his business and that he was keeping contact with his mother and sisters in Iran and had taken steps to go over to meet them. further, he made an application to a magistrate at Bombay for grant of a domicile certificate to him on October 13, 1954 which was refused.\n\nIt appears from a letter that the appellant wrote to the police on September 24, 1955 in connection with a permit for extension of stay in India which he had omitted to obtain in due time that as he had applied for the certificate of domicile he was under the impression that extensi0ns of permits were no longer necessary for him. This would indicate that the appellant's real object of applying for domicile was to avoid the botheration of having to apply constantly for extension of the residential pennit and not that he had intended to make India his home.\n\n• H\n\n,, .\n\nIn this State of the evidence it cannot be held that the appel lant has been able to prove his intention to settle in India or make India his home. The result is that the appeal fails and is dismissed with costs.\n\nAppeal dismissed.", "total_entities": 42, "entities": [{"text": "F\n\nMOHD. RAZA DABSTANI", "label": "PETITIONER", "start_char": 2, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "MOHD. RAZA DABSTANI", "offset_not_found": false}}, {"text": "STATE OF BOMBAY AND ORS", "label": "RESPONDENT", "start_char": 26, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "STATE OF BOMBAY AND ORS", "offset_not_found": false}}, {"text": "January 28, 1966", "label": "DATE", "start_char": 52, "end_char": 68, "source": "ner", "metadata": {"in_sentence": "January 28, 1966\n\n[A. K. SARKAR AND J. R. MUDHOLKAR, JJ.]"}}, {"text": "A. K. SARKAR", "label": "JUDGE", "start_char": 71, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR, JJ.", "label": "JUDGE", "start_char": 91, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 135, "end_char": 141, "source": "regex", "metadata": {"statute": null}}, {"text": "On return to India he was registered under the Registeration of Foreigners Rules, 1939", "label": "STATUTE", "start_char": 461, "end_char": 547, "source": "regex", "metadata": {}}, {"text": "December 2, 1957", "label": "DATE", "start_char": 863, "end_char": 879, "source": "ner", "metadata": {"in_sentence": "On December 2, 1957 his last request was refused and he was asked under the Foreigners' Act, 1946 to leave India."}}, {"text": "City Civil Court Bombay", "label": "COURT", "start_char": 1002, "end_char": 1025, "source": "ner", "metadata": {"in_sentence": "He then filed a suit in the City Civil Court Bombay, for a declaration that he was an Indian citizen and for an injunction restraining the authorities from taking action against him on the basis that he was a foreigner."}}, {"text": "[1964] 4 S.C.R. 99", "label": "CASE_CITATION", "start_char": 1798, "end_char": 1816, "source": "regex", "metadata": {}}, {"text": "Iran", "label": "GPE", "start_char": 2178, "end_char": 2182, "source": "ner", "metadata": {"in_sentence": "444 A-BJ\n\n(iii) The onus of proving his change of domicile from Iran to India was on the appellont."}}, {"text": "S. J. Sorbjee", "label": "LAWYER", "start_char": 2490, "end_char": 2503, "source": "ner", "metadata": {"in_sentence": "S. J. Sorbjee, G. L. Sanghi, B. R. Agarwala, M. S. Patel and H. K. Puri, for the appellant."}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 2505, "end_char": 2517, "source": "ner", "metadata": {"in_sentence": "S. J. Sorbjee, G. L. Sanghi, B. R. Agarwala, M. S. Patel and H. K. Puri, for the appellant."}}, {"text": "B. R. Agarwala", "label": "LAWYER", "start_char": 2519, "end_char": 2533, "source": "ner", "metadata": {"in_sentence": "S. J. Sorbjee, G. L. Sanghi, B. R. Agarwala, M. S. Patel and H. K. Puri, for the appellant."}}, {"text": "M. S. Patel", "label": "LAWYER", "start_char": 2535, "end_char": 2546, "source": "ner", "metadata": {"in_sentence": "S. J. Sorbjee, G. L. Sanghi, B. R. Agarwala, M. S. Patel and H. K. Puri, for the appellant."}}, {"text": "H. K. Puri", "label": "LAWYER", "start_char": 2551, "end_char": 2561, "source": "ner", "metadata": {"in_sentence": "S. J. Sorbjee, G. L. Sanghi, B. R. Agarwala, M. S. Patel and H. K. Puri, for the appellant."}}, {"text": "C. K Daphtary", "label": "LAWYER", "start_char": 2607, "end_char": 2620, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\nC. K Daphtary, Allorney-General, B. R. L. Iyengar and A B. R. G. K. Achar for R. H. Dhebar, for respondents."}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 2640, "end_char": 2656, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\nC. K Daphtary, Allorney-General, B. R. L. Iyengar and A B. R. G. K. Achar for R. H. Dhebar, for respondents."}}, {"text": "A B. R. G. K. Achar", "label": "LAWYER", "start_char": 2661, "end_char": 2680, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\nC. K Daphtary, Allorney-General, B. R. L. Iyengar and A B. R. G. K. Achar for R. H. Dhebar, for respondents."}}, {"text": "R. H. Dhebar", "label": "LAWYER", "start_char": 2685, "end_char": 2697, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\nC. K Daphtary, Allorney-General, B. R. L. Iyengar and A B. R. G. K. Achar for R. H. Dhebar, for respondents."}}, {"text": "Sarkar", "label": "JUDGE", "start_char": 2761, "end_char": 2767, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSarkar J. The appellant, an Iranian national by birth, came to India from Yezd in Iran with his maternal uncle, an Iranian national, in 1938 when he was about thirteen years old."}}, {"text": "Yezd", "label": "GPE", "start_char": 2835, "end_char": 2839, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSarkar J. The appellant, an Iranian national by birth, came to India from Yezd in Iran with his maternal uncle, an Iranian national, in 1938 when he was about thirteen years old."}}, {"text": "Iraq", "label": "GPE", "start_char": 3060, "end_char": 3064, "source": "ner", "metadata": {"in_sentence": "In January 1945 he obtained an Iranian passport and went to Iraq on pilgrimage."}}, {"text": "Iranian Government", "label": "ORG", "start_char": 3138, "end_char": 3156, "source": "ner", "metadata": {"in_sentence": "This passport showed that he held an identity card of the Iranian Government."}}, {"text": "March 22, 19%", "label": "DATE", "start_char": 3198, "end_char": 3211, "source": "ner", "metadata": {"in_sentence": "On return from the pilgrimage he was on March 22, 19% registered under the Registration of Foreigners Rules, 1939 as an Iranian national."}}, {"text": "Registration of Foreigners Rules, 1939", "label": "STATUTE", "start_char": 3233, "end_char": 3271, "source": "regex", "metadata": {}}, {"text": "May 25, 1951", "label": "DATE", "start_char": 3299, "end_char": 3311, "source": "ner", "metadata": {"in_sentence": "On May 25, 1951, he obtained a residential permit under the Foreigners Order, 1938 permitting him to reside in India upto a certain di\\te."}}, {"text": "Foreigners Act, 1946", "label": "STATUTE", "start_char": 3577, "end_char": 3597, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "December 14, 1957", "label": "DATE", "start_char": 3617, "end_char": 3634, "source": "ner", "metadata": {"in_sentence": "On December 14, 1957, he filed a suit in the City Civil Court at Bombay for a declaration that he was a citizen of India and for an injunction restraining the State of Bombay, the Police of Bombay and the\n\nUnion of India from taking action against him on the footing that he was a foreigner and not a citizen of India."}}, {"text": "City Civil Court at Bombay", "label": "COURT", "start_char": 3659, "end_char": 3685, "source": "ner", "metadata": {"in_sentence": "On December 14, 1957, he filed a suit in the City Civil Court at Bombay for a declaration that he was a citizen of India and for an injunction restraining the State of Bombay, the Police of Bombay and the\n\nUnion of India from taking action against him on the footing that he was a foreigner and not a citizen of India."}}, {"text": "State of Bombay", "label": "ORG", "start_char": 3773, "end_char": 3788, "source": "ner", "metadata": {"in_sentence": "On December 14, 1957, he filed a suit in the City Civil Court at Bombay for a declaration that he was a citizen of India and for an injunction restraining the State of Bombay, the Police of Bombay and the\n\nUnion of India from taking action against him on the footing that he was a foreigner and not a citizen of India."}}, {"text": "Police of Bombay", "label": "ORG", "start_char": 3794, "end_char": 3810, "source": "ner", "metadata": {"in_sentence": "On December 14, 1957, he filed a suit in the City Civil Court at Bombay for a declaration that he was a citizen of India and for an injunction restraining the State of Bombay, the Police of Bombay and the\n\nUnion of India from taking action against him on the footing that he was a foreigner and not a citizen of India."}}, {"text": "High Court at Bombay", "label": "COURT", "start_char": 4019, "end_char": 4039, "source": "ner", "metadata": {"in_sentence": "This suit was dismissed by the City Civil Court and an appeal by the appellant to the High Court at Bombay also failed."}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 4165, "end_char": 4171, "source": "regex", "metadata": {"linked_statute_text": "the Foreigners Act, 1946", "statute": "the Foreigners Act, 1946"}}, {"text": "Article 5", "label": "PROVISION", "start_char": 4438, "end_char": 4447, "source": "regex", "metadata": {"linked_statute_text": "the Foreigners Act, 1946", "statute": "the Foreigners Act, 1946"}}, {"text": "November 21, 1949", "label": "DATE", "start_char": 4487, "end_char": 4504, "source": "ner", "metadata": {"in_sentence": "Article 5 of the Constitution came into force on November 21, 1949."}}, {"text": "Bombay", "label": "GPE", "start_char": 5382, "end_char": 5388, "source": "ner", "metadata": {"in_sentence": "The facts established are that since 1938 excepting for a visit to Iraq lasting about a year he has all along been a rci; ident of Bombay."}}, {"text": "March 23, 1946", "label": "DATE", "start_char": 6478, "end_char": 6492, "source": "ner", "metadata": {"in_sentence": "On his return he was registered as an Iranian national on March 23, 1946."}}, {"text": "British Indian subject under the Naturalisation Act", "label": "STATUTE", "start_char": 6768, "end_char": 6819, "source": "regex", "metadata": {}}, {"text": "March 30, 1957", "label": "DATE", "start_char": 9309, "end_char": 9323, "source": "ner", "metadata": {"in_sentence": "As late as March 30, 1957 he described himself as an Iranian national in the application that he made for naturalisation as an Indian citizen which was refused."}}, {"text": "October 13, 1954", "label": "DATE", "start_char": 10784, "end_char": 10800, "source": "ner", "metadata": {"in_sentence": "further, he made an application to a magistrate at Bombay for grant of a domicile certificate to him on October 13, 1954 which was refused."}}, {"text": "September 24, 1955", "label": "DATE", "start_char": 10888, "end_char": 10906, "source": "ner", "metadata": {"in_sentence": "It appears from a letter that the appellant wrote to the police on September 24, 1955 in connection with a permit for extension of stay in India which he had omitted to obtain in due time that as he had applied for the certificate of domicile he was under the impression that extensi0ns of permits were no longer necessary for him."}}]}
{"document_id": "1966_3_446_450_EN", "year": 1966, "text": "\\'ELAMANCHILI SIVA PANCHAKSHAMMA GODAVARU\n\nYALAMANCHILI CHEVA ABHAYI AND ORS.\n\nFebruary 4, 1966.\n\n(P. B. GAJENDRAGADKAR, C. ]. , K. N. WANCHOO, J.C. SHAH B S. M. SllCRI AND V. RAMASWAMI, JJ.]\n\nWill--<:onstructlon o/-Prop<rty whether could be claimed as doaignata In terms of the will.\n\nThe reopondent filed a plaint claiming properties mentioned in Schedules A and B thereof on the ground that he was adopted by the appellant who was widow of L. Apart from adoption the respondent•• claim was C hued on being mentioned as ptrsona desiRnata in L's will.\n\nThe re-- levant words in the will were : \"It has been settled that my wife should take, the second son of my elder brother, ........ in adoption, celcbrata hiJ marriage, etc., and after he passes his minority she should deliver pc 1 •ion of my other movable and immovable propertic'i that I have ........ \". The trial court held that the respondent had not been adopted hr the appellant nor W8' he entitled to any right< as persona da/pDID m Va will.\n\nOn appeal the High Court held that while there D was no adoption, the respondent was entitled to the property as persona dnignata. The appellant came to this Court. The question presented for determination W8' whether the High Court W8' right in holding that upon a true construction of the will Ex.B-1 there was a gift of the property to the plaintiff as persona designa/a.\n\nHELD : The will contained no direct words of disposition in favour of the respondent. There was no expression of devise in favour of the E rnpondent. There was only a direction to the widow to adopt and the gift to the respondent was on condition of being adopted. The respondent•s claim as persona dnignata could not therefore be accepted.\n\n(448 0-H. 450 A]\n\nFanlndra Deb Raikat v. Rajeswar Dass, 12 I.A. 72 relied on.\n\nNldhoomoni Debya v. Saroda Pershad Mookerjee, 3 I.A. 253 distinguished.\n\nCivtL APPELLATE JURISDICTION : Civil Appeal No. 752 of 1963.\n\nAppeal from the judgment and decree dated December 16 1958 of the Andhra Pradesh High Court in Appeal Suit No. 284 of 1954.\n\nM. A. Narasayya Chaudhury, I.\n\nShivamurthy and K.\n\nSarmo, for the appellant.\n\nW. S. Barlingay and E. Udayaratnam, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nRamaswami J. This appeal is brought on behalf of the defendant against the judgment and decree of the High Court of Andhra\n\nPr11desh dated December 16, 1958 in A. S. No. 284 of 1954 whereby\n\nGODAVARU v. ABHAYI (Ramaswam1', !.) 447\n\nA it reversed the judgment and decree of the Court of Subordinate Judge, Vijayawada in 0. S. No. 171 of 1950,\n\nIn the suit which is the subject-matter of this appeal the plaintiff alleged that he was duly adopted by the defendant-the widow of Lakshmayya-and therefore entitled to properties mentioned in Schs. A & B of the plaint. The plaintiff also asserted that, apart from his right as an adopted son, he was entitled to the properties. claimed as a persona designata under the will dated November 30, 1946-Ex. B-1 executed by Lakshmayya. The suit was contested l>Y the defendant who alleged that the plaintiff was not adopted as tlie son of Lakshmayya. The trial court rejected the case of the plaintiff that he was adopted by the widow after the death of Lakshmayya. The trial court further held that the plaintiff was not entitled to any rights under the will as a persona designata. The trial court accordingly dismissed the suit. On appeal by the plaintiff the High Court confirmed the finding that no adoption had been made. It, however, held on the construction of the will that the plaintiff was entitled to the properties claimed as a persona designata. The High Court allowed the appeal and granted a decree to the plaintiff for possession of the properties subject tocertain incidental directions given in the decree.\n\nThe question presented for determination in this appeal is whether the High Court was right in holding that upon a true construction of the will-Ex. B-1 there was a gift of the properties to the plaintiff as a persona designata.\n\n It is necessary, at this stage, to set out the material provisions of the will Ex. B-1 executed by Lakshmayya :-\n\n\"I have no male or female issue. I have wife, by name Sivapanchakshari, mother by name Basavamma, and elder brother by name Somaiah. .For the last 10 days I am suffering from a disease akin to paralysis and fearing that I may not survive, I make the following settlement as set down below to take place after my life.\n\nLand called Mallukunta Out of Raksh kunta ( ?) vadde land Out of Maddurivari land Out of Pooravamamvari land\n\nTOTAL\n\nA.C. 1---00 1-25 1-05 2-60\n\n6-50\n\nSix acres and (50) fifty cents seri wet land; 10 cents in Kolli Chinna Bapaiah's (back) yard; and 300 yards of house-site towards the west of my house (belonging to my mother-in-law) with a tiled house thereon, have been\n\nSUPREME COURT REPORTS\n\n(1966] 3 S.C.R.\n\nsettled upon my wife to enjoy as she likes with all rights of gift, mortgage, exchange, sale, etc.\n\n2. Southern side garden 80 cents (eighty cents of scri wet land) has been settled upon my mother Basa vamma to enjoy with all rights of gift, mortgage, exchange, sale, etc.\n\n3. It has been seltlcd that my wife should take, the 2nd son of my elder brother, Yalamanchili Somaiah, in adoption, celebrate his marriage, etc., and after he passes his minority she should deliver possession of my other movable and immovable properties that I have and described here below. During the life-time of my wife, if the adopted son and she live together without any trouble,\n\n(she) is to live in my house, and if there is disagreement between the adopted son and my wife, (she) is to live in a room of my house.\n\nMy wife has been given power over my minor (son's) property, to collect debts due to me and to discharge <lebt.s due by me.\"\n\nThe testator then mentioned two items of debts due to him.\n\nHe thereafter enumerated the debts due by h.im which aggregated to\n\nRs. 15,803/- . A description of the land is also given.\n\nThe question involved in this appeal is whether the disposition\n\nof the properties to the plaintiff is as a persona designata or by E reason of his fulfilling a particular legal status, namely, the adopted son of the testator. \"!be question in such a case is really one' of intention of the testator which must be ascertained from the language of the various clauses of the will and the surrounding circumstances of the execution of the will.\n\nAs pointed out by the Judicial Committee in Fanindra Deb Raikat v. Rajesll'ar Das.<(') : F\n\n\"The distinction between what is description only and what is the reason or motive of a gift or bequest may often be very fine, but it is a distinction which must be drawn from a consideration of the language and the surrounding circumstances.\"\n\nIn the present case we are satisfied, on reading the various clauses of the will, that there is no gift to the plaintiff and there was only a direction to the defendant to adopt the plaintiff as the son of Lakshmayya and the intention of the testator was that the plaintiff should take as an adorted son and, therefore, the gift made to the plaintiff was conditional on his being adopted. The reason is that there are no direct words of disposition in favour of the plaintiff.\n\nIn this connection the language of cl. 3 of the will is ----· ·-·· ---·\n\n(!) 12 I. A. 72.\n\nGODAVARU v. ABHAYI (Rama.rwait11', J.) 449\n\nin contrast with that of els. 1 and 2 where words of disposition are used with regard to the gifts made to the widow-Sivapanchakshari and to the mother of the testator-Basavamma. Clause 3 of the will does not contain any expression of devise of the property in favour of the plaintiff. Clause 3 only contains a direction that the wife of the testator should take the plaintiff in adoption, celebrate his marriage etc. and \"after he passes his minority she should deliver possession of my other movable and immovable properties to him\". It is manifest that in the present case there is a direction to the widow to adopt and the gift to the plaintiff is on the condition of his being adopted. It appears to us, upon reading the will as a whole, that tho testator had no intention to give the property to the plaintiff irrespective of the adoption to be made by the widow in accordance with the direction. On behalf of the respondents reference was made to the decision of the Judicial Committee in Nidhoomoni Debya v. Saroda Pershad\n\nMookerjee(1) in which it was held that there was a gift of his property by the testator to a designated person (the words being \"I declare that I give my property to Koibullo whom I have adopted\"), and this gift was not dependent on the performance of certain ceremonies by his widows. The principle of the decision is not applicable to the present case where the language of the testamentary instrument is materially different. We think the present case is similar to that of Fanindra Deb Raikat v. Rajeswar Dass(') where the Judicial Committee held on a true construction of the angik:ar-patra by which the deceased purported to give his property to the respondent by virtue of his being the adopted son, that the gift did not take effect inasmuch as the adoption was invalid. At page 89 of the Report the Judicial Committee observed\n\n\"They think the question is whether the mention of him as an adopted son is merely descriptive of the person to take under the gift, or whether the assumed fact of his adoption is not the reason and motive of the gift, and indeed a condition of it. The words are,-'I authorize you by this angikar-patra to offer oblations of water and pinda to me and my ancestors after my death, by virtue of your being my adopted son. Moreover, you shall become the proprietor of all the movable and immovable properties which I own and which I may leave behind; you shall become entitled to my dena-pawna (debts and dues), and you and your sons and grandsons shall enjoy them agreeably to the custom of the family.' He is to make the offerings by virtue of being an adopted son, and 'moreover' he is to become the proprietor. This is to be the consequence of the adoption.\"\n\n(I) 3 I. A. 253.\n\n(2) 12 I. A. 72.\n\n450 SUPllBMB COURT RBPORTS\n\n(1966] 3 S.C.R.\n\nFor the reasons expressed we hold that the High Court was in error in interpreting the will of Lakshmayya as a gift of the properties made to the plaintiff as a persona designata.\n\nWe are, therefore, of the opinion that the plaintiff is not entitled to the properties on the basis of the will executed by Lakshmayya and the suit of the plaintiff should be dismissed. This appeal is accordingly allowed with costs.\n\nApptal a//owtd.", "total_entities": 25, "entities": [{"text": "\\'ELAMANCHILI SIVA PANCHAKSHAMMA GODAVARU", "label": "PETITIONER", "start_char": 0, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "YELAMANCHILI SIVA PANCHAKSHAMMA GODAVARU", "offset_not_found": false}}, {"text": "YALAMANCHILI CHEVA ABHAYI AND ORS", "label": "RESPONDENT", "start_char": 43, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "YALAMANCHILI CHEVA ABHAYI AND ORS", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 99, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO, J", "label": "JUDGE", "start_char": 129, "end_char": 145, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 146, "end_char": 153, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 173, "end_char": 190, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "M. A. Narasayya Chaudhury", "label": "JUDGE", "start_char": 2063, "end_char": 2088, "source": "ner", "metadata": {"in_sentence": "M. A. Narasayya Chaudhury, I.\n\nShivamurthy and K.\n\nSarmo, for the appellant."}}, {"text": "Shivamurthy", "label": "LAWYER", "start_char": 2094, "end_char": 2105, "source": "ner", "metadata": {"in_sentence": "M. A. Narasayya Chaudhury, I.\n\nShivamurthy and K.\n\nSarmo, for the appellant."}}, {"text": "K.\n\nSarmo", "label": "LAWYER", "start_char": 2110, "end_char": 2119, "source": "ner", "metadata": {"in_sentence": "M. A. Narasayya Chaudhury, I.\n\nShivamurthy and K.\n\nSarmo, for the appellant."}}, {"text": "W. S. Barlingay", "label": "LAWYER", "start_char": 2141, "end_char": 2156, "source": "ner", "metadata": {"in_sentence": "W. S. Barlingay and E. Udayaratnam, for the respondent."}}, {"text": "E. Udayaratnam", "label": "LAWYER", "start_char": 2161, "end_char": 2175, "source": "ner", "metadata": {"in_sentence": "W. S. Barlingay and E. Udayaratnam, for the respondent."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 2242, "end_char": 2251, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami J. This appeal is brought on behalf of the defendant against the judgment and decree of the High Court of Andhra\n\nPr11desh dated December 16, 1958 in A. S. No."}}, {"text": "Court of Subordinate Judge, Vijayawada", "label": "COURT", "start_char": 2519, "end_char": 2557, "source": "ner", "metadata": {"in_sentence": "447\n\nA it reversed the judgment and decree of the Court of Subordinate Judge, Vijayawada in 0."}}, {"text": "November 30, 1946", "label": "DATE", "start_char": 2966, "end_char": 2983, "source": "ner", "metadata": {"in_sentence": "claimed as a persona designata under the will dated November 30, 1946-Ex."}}, {"text": "Lakshmayya", "label": "OTHER_PERSON", "start_char": 3004, "end_char": 3014, "source": "ner", "metadata": {"in_sentence": "B-1 executed by Lakshmayya."}}, {"text": "Sivapanchakshari", "label": "OTHER_PERSON", "start_char": 4206, "end_char": 4222, "source": "ner", "metadata": {"in_sentence": "I have wife, by name Sivapanchakshari, mother by name Basavamma, and elder brother by name Somaiah."}}, {"text": "Basavamma", "label": "OTHER_PERSON", "start_char": 4239, "end_char": 4248, "source": "ner", "metadata": {"in_sentence": "I have wife, by name Sivapanchakshari, mother by name Basavamma, and elder brother by name Somaiah."}}, {"text": "Somaiah", "label": "OTHER_PERSON", "start_char": 4276, "end_char": 4283, "source": "ner", "metadata": {"in_sentence": "I have wife, by name Sivapanchakshari, mother by name Basavamma, and elder brother by name Somaiah."}}, {"text": "Kolli Chinna Bapaiah", "label": "OTHER_PERSON", "start_char": 4680, "end_char": 4700, "source": "ner", "metadata": {"in_sentence": "vadde land Out of Maddurivari land Out of Pooravamamvari land\n\nTOTAL\n\nA.C. 1---00 1-25 1-05 2-60\n\n6-50\n\nSix acres and (50) fifty cents seri wet land; 10 cents in Kolli Chinna Bapaiah's (back) yard; and 300 yards of house-site towards the west of my house (belonging to my mother-in-law) with a tiled house thereon, have been\n\nSUPREME COURT REPORTS\n\n(1966] 3 S.C.R.\n\nsettled upon my wife to enjoy as she likes with all rights of gift, mortgage, exchange, sale, etc."}}, {"text": "Yalamanchili Somaiah", "label": "OTHER_PERSON", "start_char": 5240, "end_char": 5260, "source": "ner", "metadata": {"in_sentence": "It has been seltlcd that my wife should take, the 2nd son of my elder brother, Yalamanchili Somaiah, in adoption, celebrate his marriage, etc.,"}}, {"text": "cl. 3", "label": "PROVISION", "start_char": 7290, "end_char": 7295, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 7569, "end_char": 7577, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 7676, "end_char": 7684, "source": "regex", "metadata": {"statute": null}}, {"text": "Nidhoomoni Debya", "label": "OTHER_PERSON", "start_char": 8386, "end_char": 8402, "source": "ner", "metadata": {"in_sentence": "On behalf of the respondents reference was made to the decision of the Judicial Committee in Nidhoomoni Debya v. Saroda Pershad\n\nMookerjee(1) in which it was held that there was a gift of his property by the testator to a designated person (the words being \"I declare that I give my property to Koibullo whom I have adopted\"), and this gift was not dependent on the performance of certain ceremonies by his widows."}}, {"text": "Koibullo", "label": "OTHER_PERSON", "start_char": 8588, "end_char": 8596, "source": "ner", "metadata": {"in_sentence": "On behalf of the respondents reference was made to the decision of the Judicial Committee in Nidhoomoni Debya v. Saroda Pershad\n\nMookerjee(1) in which it was held that there was a gift of his property by the testator to a designated person (the words being \"I declare that I give my property to Koibullo whom I have adopted\"), and this gift was not dependent on the performance of certain ceremonies by his widows."}}]}
{"document_id": "1966_3_451_457_EN", "year": 1966, "text": "PANDIT SRI CHAND AND ORS.\n\n. v.\n\nM/S. JAGDISH PARSHAD KISHAN CHAND AND ORS.\n\nFebruary 4, 1966\n\n[J. C. Sifm, S. M. SIKRI AND V. RAMASAWAMI, JJ.]\n\nCode of Civil Pr11cedure (Act V of 1908), 0. 41 r. 4-Abatement of Appeal with reapect to one appellant-When operates as abatement of entire appeal-Supreme Court Rules, 1950, 0. 16 r. 14.\n\nThe 1st respondent filed a suit against the 2nd respondent for re- . covcry of money and in pursuance of an order of the Court directin1 . c the 2nd respondent to furnish security for satisfaction of the decree that may be passed against him, the three appellants and two others stoo~ sureties agreeing jointly and oeverally to satisfy the decree. After the smt was decreed the first respondent applied for execution of the decree against the sureties. The •ureties raised the pleas that the surety bond wu not enforceable because it was not registered, and that the degree\n\n'. holder had committed acts by which the remedy of the sureties against\n\njudgment debtor was impaired, but the pleas were negatived by the D executing court and the High Court. After the three appellants preferred an appeal to this Court, one of them died and since his legal . representatives was not brought on record, the appeal abated, as far as he was concerned.\n\nOn the question whether the appeal in so far as the other two appellants were concerned also abated,\n\nHELD : Applications to bring on record legal representatives of a deceased appellant OT respondent were governed by 0, 16, r. 14 of the Supreme Court Rules, 1950, and the rule applied to all classes of appeals . including appeal<s arising from orders in execution.\n\nBecause the repre-- sentatives of the deceased appellant were not brought on record within the time permitted by the rule and the delay in filing the petition to bring the representatives on record was not condoned, the appeal of the deceased appellant abated. Since the Liability of the sureties was joint and several, if this Court proceeds with the appeal of the other two sureties and holds that the High Court was in error in rejecting their contentions, there would be two inconsistent orders-one passed by the High Court holding that the surety bond was enforceable, and the other-of this Court that it was not enforceable. Therefore\" the appeal must be held to have abated in its entirety. [454 D; 456 B; 457 BJ\n\nSt11te of Punjab v. Nathu Ram, [1962] 2 S.C.R. 636 nnd Rameshwar Prasad and others v. Shanbeharl Lal, [1964] 3 S.C.R. 549, followed,\n\nCIVIL APPLLATE JURISDICTION : Civil Appeal No. 425 of 1963.\n\nAppeal by special leave from the judgment and order dated April 14, 1960 of the Punjab High Court (Circuit Bench at Delhi) . in LP.A. No. 17-D of 1960.\n\nGopal Singh and Amar Singh, for appellant No. 1.\n\nJ. M. Lal, E. C. Agarwala and P. C. Agarwala, for appellant No. 3.\n\nSUPREME COURT REPORTS (1966] 3 s.c.R\n\nBishan Narain, K. Rajendra Chaudhury and K. R. Chaudhury A for respondent No. I. '\n\nMohan Behari Lal, for respondent No. 3.\n\nS. K. Mehta and K. L. Mehta, for respondent No. 4.\n\nThe Judgment of the Court was delivered by\n\nShah, J. Messrs Jagdish Pershad Kishan Chand-hereainafter called 'the first respondent'-<:ommenced suit No. 265 of 1952 in the Court of the Senior Subordinate Judge, Delhi, against the second respondent for a decree for possession of goods hypothccated to them by Messrs. Mudgal Motors Ltd.,-second respondent in this appeal. The first respondent filed another suit No. 43 of 1952 for a decree for Rs. 42,914/10/- being the amount due at the foot of the hypothecation account, and for sale of the goods in satisfaction of the amount due. The two suits were consolidated for trial. In suit No. 43 of 1952 the first respondent applied for appointment of a receiver and the Court directed the second respondent to furnish security in the sum of Rs. 50,000/-.\n\nPursuant to this order five persons stood sureties for satisfaction of the decree. It was recited in the surety bond dated April 21, 1953, that the five sureties mortgaged the properties specified in the Schedule annexed thereto and jointly and severally agreed that if any decree was passed against the second respondent they shall comply with the same and in default the amount payable under the decree but not exceeding Rs. 50,000/- shall be realized from the properties mortgaged. This surety bond was not registered. Out of the five sureties, Sri Chand, Basant Lal and Debi Ram are appellants in this appeal.\n\nOn January 14, 1955, the second respondent was ordered to be wound up in a petition presented by the first respondent to the District Court, Delhi. Suit No. 265 of 1952 was therafter withdrawn and in suit No. 43 of 1952 a decree was passed against the second respondent for Rs. 42,914/10/- with costs and future interest at six per cent per annum. The first respondent then applied to execute the decree against the sureties. The sureties objected to the execution of the decree against them on the grounds, inter alia, that the surety bond not being registered as required by law, the application for execution must fail, and that since the first respondent had committed acts by which the remedy of the sureties against the second respondent had been impaired the sureties stood discharged. The Commercial Subordinate Judge, First Class, Delhi, rejected the objections raised by the sureties, and the order of the Subordinate Judge was confirmed by Grover, J., in appeal to the High Court of Judicature, Punjab. Appeals against the order of Grover, J., under the letters patent of the High Court were disinisscd in limine.\n\nWith special leave granted on August 12,\n\nI l\n\n• ,\n\nSRI CHAND V. JAGD!SH PARSHAD (Shah, J,) 453:\n\n1962, Sri Chand, Basant Lal and Debi Ram-three of the suretieshave appealed to this Court.\n\nBasant Lal, one of the appellants died on October 18, 1962.\n\nAs he died before the record of the appeal was transmitted to this Court, his heirs and legal representatives applied on July 24, 1963, to the High Court for an order under 0. 16, r. 12 of the Supreme Court Rules, 1950, certifying that they were proper parties to be impleaded as legal representatives on the record of the appeal.\n\nTuey also applied for condonation of delay in moving the application. The High Court held that there was no adequate explanation justifying an order condoning the delay in making the application for bringing the heirs on record and accordingly the application for condonation of delay and the application for certifying the heirs were dismissed. A petition submitted to this Court for impleading the heirs and legal representatives in the appeal was also dismissed by an order made in chamber on February 9,\n\n1965. Thereafter a petition was filed on May 7, 1965 for special leave to appeal against the order passed by the High Court refusing to bring on record the legal representatives of Basant Lal. By order dated January 20, 1966 we have rejected this petition.\n\nCounsel for the first respondent contended that the appeal had abated in its entirety because the heirs of Basant Lal had not been brought on record, and the ground on which the judgment of the High Court proceeded was common to all the sureties.\n\nIn our view this objection must be upheld. The appeal of Basant Lal has abated since the legal representatives to his estate have not been impleaded and the record of the appeal is defective.\n\nThat is not denied by the appellants. But it is urged that this Court is competent to set aside an order of the High Court in its entirety on the ground that it is not sustainable in law and in any event to set aside the order in so far as it affects the claim of appellants I & 3 and the third respondent. Support was sought to be derived for the first contention from 0 41, r. 4 of the Code of Civil Procedure and it was urged that even if the decree be assumed to have proceeded on a ground common to all the sureties, it is open to any one or more of the sureties to appeal from the order and the appellate Court may reverse or vary the decree in favour of all the sureties. This plea stands refuted by the judgment of this Court in Remeshwar Prasad and Others v. Shambehari Lal Jagannath and another.(') It was held by this Court in Rameshwar Prasad' s case (') that an appellate Court has no power to proceed with an appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under 0 41, r. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned.\n\n\nSUPREME OOURT REPORTS\n\n(1966]3 S.C.R.\n\nThe two principal pleas raised before Grover, J., were that A the surety bond was not enforceable because it wss not registered and that the decree-holders had committed an act by which the .remedy of the sureties against the judgment-debtor had been impaired and therefore the sureties stood discharged. The learned .Judge negatived both the pleas. The decision of the Court obviously proceeded on grounds which were common to all the sureties.\n\nBasant Lal died after the order of the High Court under appeal.\n\nHe had preferred an appeal, but since the legal representatives .to his estate have not been brought on record, his appeal has abated. The order of the High Court holding that the sureties are liable to satisfy the claim notwithstanding the objections raised by Basant Lal has become final. In the appeal filed by the appellants I & 3 if this Court holds that the High Court was in error in deciding that the surety bond was not enforceable because it was not registered, or that the first respondent has done some act which has discharged the sureties from liability under the bond, there would unquestionably be two inconsistent orders-one passed by the High Court holding that the surety bond was enforceable, and the other, the view of this Court that it is not enforceable.\n\nThis Court has on more occasions than one considered whether in circumstances similar to these, an appeal should stand abated in its entirety. In the State of Punjab v. Nathu Ram (1) this Court explained the tests applicable in considering whctile; an appeal abates in its entirety when it has abated qua one of the respondents. 1be headnote of the case reads :\n\n\"If the Court can deal with the matter in controversy so far as regards the rights and interest of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it : otherwise it will have to refuse to proceed further with the appeal and therefore dismiss it. Ordinarily, the consideration which will weigh with the court in deciding upon the question whether the entire appeal had abated or not \\viii be whether the appeal between the appellants and the respondents other than the deceased respondent can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court and the tests to determine this have been de5cribed thus : (a) when the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court's -------=--· ·-\n\n(1) [19'2) 2 S.C.R. 636.\n\nA ,\n\n• c\n\n• F •\n\nSill CHAND V. JAGDISH PARSHAD (Shah, 1.) 455\n\npassing a decree which will be contradictory to the deree which had become final with respect to the same subjectmatter between the appellant aud the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respon dents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective that is to say it could not be successfully executed.\n\nThe abatement of an appeal against the deceased respondent means not only that the decree between the appellant and the deceased respondent has become final, but also as a necessary corollary that the appellate court cannot in any way modify that decree directly or indirectly.\n\nWhen the decree in favour of the respondents is joint and indivisible, the appeal against the respondents, other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has\n\nabated.\" The principle of this judgment was affirmed in Rameshwar Prasad' s case (') and later in an unreported judgment in Kishan Singh and others v. Nidhan Singh and others (2). It may be pointed out that the three tests suggested by Raghubar Dayal, J., in Nathu Ram's case (3) are not cumulative tests. Even if one of them is satisfied, the Court may, having regard to all the circumstances, hold that the appeal has abated in its entirety.\n\nBut counsel for the appellants has contended that the rules laid down by this Court in Nathu Ram's case(') and other cases has no application to this appeal, firstly, because this appeal arises from an order in execution proceeding and rules as to abatement by the express provision contained in 0·22, r. 12 Code of Civil Procedure have no application to appeals in an execution proceeding, and secondly, that in cases in which the order or decree appealed against gives rise to a liability which is joint and several it is open to one of the persons declared so liable to prosecute an appeal in so far as he is concerned, notwithstanding abatement of the appeal of a co-obligee. Order 22, r. 12 of the Code of Civil Procedure provides that nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. On the true interpretation of this rule there is conflict of opinion in the High Courts.\n\nIn some cases the view has prevailed that appeals from orders in execution proceedings are not subject to rules 3, 4 and 8 of 0 22, Code of Civil Procedure and failure to implead heirs and legal\n\n(1) (1964] 3 S.C.R. 549.\n\n(2) C.A. 563 of 1963 decided on Dec. 14, 1964.\n\n(3) (1962] 2 S.C.R. 636 MIO Sup. Cl/66-16\n\n4 5& SUJIU!MI COUl.T UPOl.TS\n\n(1966) 3 S.l>.R.\n\nrl!resentatives of a deceased party in such an appeal will not be A vmted by an order of abatement. In other cases it has been held that an appeal against an order in execution is not \"a proceedi~ in execution of a decree\" and that such an appeal will abate if\n\nthe heirs are not brought on record within the period of limitation, and that r. 12 has no application to appeals. Io this appeal it is not necessary to resolve this conflict, for, appeals to this Court.\n\nB arc 1ovemed by the rules contained in 0.16 of the Supreme Court Rules, 1950, and by r. 14 thereof it is provided :\n\n\"An application to bring on record the legal representative of a deceased appellant or respondent shall be made within ninety days of the death of the said appellant or respondent :\n\nProvided that in computing the time taken in obtaining a the said period certificate from the High Court shall be excluded.\"\n\nThe rule is explicit and makes no exemption in favour of any class\n\nof appeals. It is true that r. 14-A of 0 16 of the Supreme Court D-\n\n• •\n\nRules, 1950, provides that : •\n\n\"The provisions of Order XXII of the Code relating to abatement and of Article 171 in the First Schedule to the Indian Limitation Act, 1908 (IX of 1908), shall, so far as may be applicable, apply to appeals and proceedings under rule 12 and rule 13 in the High Court and in the E.\n\nSupreme Court.\"\n\nnd thereby the provisions of 0. 22 relating to abatement of appeals arc attracted. But there is no warrant for holding that any class of appeals filed in this Court is exempt from the operation of r. 14.\n\nLiability of the sureties is under the law joint and several.\n\nIf a creditor seeks to enforce the surety bond against some only of the joint sureties, the other sureties will not on that account be discharged : nor will release by the creditor of one of them discharge the other : vide ss. 137 & 138 of the Contract Act. But the fact that the surety bond is enforceable against each surety severally, and that it is open to the creditor to release one or more of the joint sureties, does not alter the true character of an adjudi cation of the Court when proceedings are commenced to enforce the covenants of the bond against all the sureties. We are not concerned in this appeal with the privilege which a creditor may exercise, but with the effect of an adjudication which the Court has made in a proceeding to enforce the covenant of the bond.\n\nThe mere fact that the obligation arising under a covenant may be enforced severally against all the covenantors does not make\n\n' - •\n\n• . )-\n\nW CHAND V • .TAGI>ISH PAl.SHAI> (Shall, l.) 457\n\nthe liability of each covenantor distinct. It is true that in enforce· ment of the claim of the decree-holder the properties belonging to the sureties individually may be sold separately. But that is be cause the properties are separately owned and not because the liability arises under distinct transactions.\n\nIt must therefore be held that the appeal has abated, because the representatives of the second appellant-Basant Lal-havoc not been brought on record within the time permitted by r. 14 of 0. 16 of the Supreme Court Rules, 1950, and the delay in filing the petition to bring the representatives on record has not been condoned. c The appeal must therefore fail and is dismi11sed. Having• regard to the circumstances, there will be no order as to costs in this appeal. ·\n\nAppeal dismissed .", "total_entities": 59, "entities": [{"text": "PANDIT SRI CHAND AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "PANDIT SRI CHAND AND ORS", "offset_not_found": false}}, {"text": "M/S. JAGDISH PARSHAD KISHAN CHAND AND ORS", "label": "RESPONDENT", "start_char": 33, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "M/S. JAGDISH PARSHAD KISHAN CHAND AND ORS", "offset_not_found": false}}, {"text": "February 4, 1966", "label": "DATE", "start_char": 77, "end_char": 93, "source": "ner", "metadata": {"in_sentence": "February 4, 1966\n\n[J. C. Sifm, S. M. SIKRI AND V. RAMASAWAMI, JJ.]"}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 108, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Supreme Court Rules, 1950", "label": "STATUTE", "start_char": 1516, "end_char": 1541, "source": "regex", "metadata": {}}, {"text": "[1962] 2 S.C.R. 636", "label": "CASE_CITATION", "start_char": 2398, "end_char": 2417, "source": "regex", "metadata": {}}, {"text": "[1964] 3 S.C.R. 549", "label": "CASE_CITATION", "start_char": 2469, "end_char": 2488, "source": "regex", "metadata": {}}, {"text": "CIVIL APPLLATE JURISDICTION", "label": "PETITIONER", "start_char": 2501, "end_char": 2528, "source": "ner", "metadata": {"in_sentence": "454 D; 456 B; 457 BJ\n\nSt11te of Punjab v. Nathu Ram, [1962] 2 S.C.R. 636 nnd Rameshwar Prasad and others v. Shanbeharl Lal, [1964] 3 S.C.R. 549, followed,\n\nCIVIL APPLLATE JURISDICTION : Civil Appeal No."}}, {"text": "Gopal Singh", "label": "LAWYER", "start_char": 2715, "end_char": 2726, "source": "ner", "metadata": {"in_sentence": "Gopal Singh and Amar Singh, for appellant No."}}, {"text": "Amar Singh", "label": "LAWYER", "start_char": 2731, "end_char": 2741, "source": "ner", "metadata": {"in_sentence": "Gopal Singh and Amar Singh, for appellant No."}}, {"text": "J. M. Lal", "label": "LAWYER", "start_char": 2765, "end_char": 2774, "source": "ner", "metadata": {"in_sentence": "J. M. Lal, E. C. Agarwala and P. C. Agarwala, for appellant No."}}, {"text": "E. C. Agarwala", "label": "LAWYER", "start_char": 2776, "end_char": 2790, "source": "ner", "metadata": {"in_sentence": "J. M. Lal, E. C. Agarwala and P. C. Agarwala, for appellant No.", "canonical_name": "E. C. Agarwala"}}, {"text": "P. C. Agarwala", "label": "LAWYER", "start_char": 2795, "end_char": 2809, "source": "ner", "metadata": {"in_sentence": "J. M. Lal, E. C. Agarwala and P. C. Agarwala, for appellant No.", "canonical_name": "E. C. Agarwala"}}, {"text": "SUPREME COURT REPORTS (1966] 3 s.c.R", "label": "COURT", "start_char": 2833, "end_char": 2869, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS (1966] 3 s.c."}}, {"text": "Bishan Narain", "label": "LAWYER", "start_char": 2871, "end_char": 2884, "source": "ner", "metadata": {"in_sentence": "R\n\nBishan Narain, K. Rajendra Chaudhury and K. R. Chaudhury A for respondent No."}}, {"text": "K. Rajendra Chaudhury", "label": "LAWYER", "start_char": 2886, "end_char": 2907, "source": "ner", "metadata": {"in_sentence": "R\n\nBishan Narain, K. Rajendra Chaudhury and K. R. Chaudhury A for respondent No."}}, {"text": "K. R. Chaudhury", "label": "LAWYER", "start_char": 2912, "end_char": 2927, "source": "ner", "metadata": {"in_sentence": "R\n\nBishan Narain, K. Rajendra Chaudhury and K. R. Chaudhury A for respondent No."}}, {"text": "Mohan Behari Lal", "label": "LAWYER", "start_char": 2955, "end_char": 2971, "source": "ner", "metadata": {"in_sentence": "I. '\n\nMohan Behari Lal, for respondent No."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 2996, "end_char": 3007, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta and K. L. Mehta, for respondent No."}}, {"text": "K. L. Mehta", "label": "LAWYER", "start_char": 3012, "end_char": 3023, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta and K. L. Mehta, for respondent No."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3092, "end_char": 3096, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. Messrs Jagdish Pershad Kishan Chand-hereainafter called 'the first respondent'-<:ommenced suit No."}}, {"text": "Jagdish Pershad Kishan Chand", "label": "JUDGE", "start_char": 3108, "end_char": 3136, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. Messrs Jagdish Pershad Kishan Chand-hereainafter called 'the first respondent'-<:ommenced suit No."}}, {"text": "Mudgal Motors Ltd.", "label": "ORG", "start_char": 3364, "end_char": 3382, "source": "ner", "metadata": {"in_sentence": "265 of 1952 in the Court of the Senior Subordinate Judge, Delhi, against the second respondent for a decree for possession of goods hypothccated to them by Messrs. Mudgal Motors Ltd.,-second respondent in this appeal."}}, {"text": "April 21, 1953", "label": "DATE", "start_char": 3972, "end_char": 3986, "source": "ner", "metadata": {"in_sentence": "It was recited in the surety bond dated April 21, 1953, that the five sureties mortgaged the properties specified in the Schedule annexed thereto and jointly and severally agreed that if any decree was passed against the second respondent they shall comply with the same and in default the amount payable under the decree but not exceeding Rs."}}, {"text": "Chand", "label": "PETITIONER", "start_char": 4401, "end_char": 4406, "source": "ner", "metadata": {"in_sentence": "Out of the five sureties, Sri Chand, Basant Lal and Debi Ram are appellants in this appeal.", "canonical_name": "Chand"}}, {"text": "Basant Lal", "label": "PETITIONER", "start_char": 4408, "end_char": 4418, "source": "ner", "metadata": {"in_sentence": "Out of the five sureties, Sri Chand, Basant Lal and Debi Ram are appellants in this appeal.", "canonical_name": "Basant Lal-havoc"}}, {"text": "Debi Ram", "label": "PETITIONER", "start_char": 4423, "end_char": 4431, "source": "ner", "metadata": {"in_sentence": "Out of the five sureties, Sri Chand, Basant Lal and Debi Ram are appellants in this appeal.", "canonical_name": "Debi Ram"}}, {"text": "January 14, 1955", "label": "DATE", "start_char": 4467, "end_char": 4483, "source": "ner", "metadata": {"in_sentence": "On January 14, 1955, the second respondent was ordered to be wound up in a petition presented by the first respondent to the District Court, Delhi."}}, {"text": "Commercial Subordinate Judge, First Class, Delhi", "label": "COURT", "start_char": 5261, "end_char": 5309, "source": "ner", "metadata": {"in_sentence": "The Commercial Subordinate Judge, First Class, Delhi, rejected the objections raised by the sureties, and the order of the Subordinate Judge was confirmed by Grover, J., in appeal to the High Court of Judicature, Punjab."}}, {"text": "Grover", "label": "JUDGE", "start_char": 5415, "end_char": 5421, "source": "ner", "metadata": {"in_sentence": "The Commercial Subordinate Judge, First Class, Delhi, rejected the objections raised by the sureties, and the order of the Subordinate Judge was confirmed by Grover, J., in appeal to the High Court of Judicature, Punjab."}}, {"text": "High Court of Judicature, Punjab", "label": "COURT", "start_char": 5444, "end_char": 5476, "source": "ner", "metadata": {"in_sentence": "The Commercial Subordinate Judge, First Class, Delhi, rejected the objections raised by the sureties, and the order of the Subordinate Judge was confirmed by Grover, J., in appeal to the High Court of Judicature, Punjab."}}, {"text": "CHAND V. JAGD!SH PARSHAD", "label": "JUDGE", "start_char": 5646, "end_char": 5670, "source": "ner", "metadata": {"in_sentence": "With special leave granted on August 12,\n\nI l\n\n• ,\n\nSRI CHAND V. JAGD!SH PARSHAD (Shah, J,) 453:\n\n1962, Sri Chand, Basant Lal and Debi Ram-three of the suretieshave appealed to this Court."}}, {"text": "Chand", "label": "PETITIONER", "start_char": 5698, "end_char": 5703, "source": "ner", "metadata": {"in_sentence": "With special leave granted on August 12,\n\nI l\n\n• ,\n\nSRI CHAND V. JAGD!SH PARSHAD (Shah, J,) 453:\n\n1962, Sri Chand, Basant Lal and Debi Ram-three of the suretieshave appealed to this Court.", "canonical_name": "Chand"}}, {"text": "Basant Lal", "label": "PETITIONER", "start_char": 5705, "end_char": 5715, "source": "ner", "metadata": {"in_sentence": "With special leave granted on August 12,\n\nI l\n\n• ,\n\nSRI CHAND V. JAGD!SH PARSHAD (Shah, J,) 453:\n\n1962, Sri Chand, Basant Lal and Debi Ram-three of the suretieshave appealed to this Court.", "canonical_name": "Basant Lal-havoc"}}, {"text": "Debi Ram", "label": "PETITIONER", "start_char": 5720, "end_char": 5728, "source": "ner", "metadata": {"in_sentence": "With special leave granted on August 12,\n\nI l\n\n• ,\n\nSRI CHAND V. JAGD!SH PARSHAD (Shah, J,) 453:\n\n1962, Sri Chand, Basant Lal and Debi Ram-three of the suretieshave appealed to this Court.", "canonical_name": "Debi Ram"}}, {"text": "October 18, 1962", "label": "DATE", "start_char": 5822, "end_char": 5838, "source": "ner", "metadata": {"in_sentence": "Basant Lal, one of the appellants died on October 18, 1962."}}, {"text": "July 24, 1963", "label": "DATE", "start_char": 5962, "end_char": 5975, "source": "ner", "metadata": {"in_sentence": "As he died before the record of the appeal was transmitted to this Court, his heirs and legal representatives applied on July 24, 1963, to the High Court for an order under 0."}}, {"text": "Supreme Court Rules, 1950", "label": "STATUTE", "start_char": 6034, "end_char": 6059, "source": "regex", "metadata": {}}, {"text": "Tuey", "label": "OTHER_PERSON", "start_char": 6173, "end_char": 6177, "source": "ner", "metadata": {"in_sentence": "Tuey also applied for condonation of delay in moving the application."}}, {"text": "February 9,\n\n1965", "label": "DATE", "start_char": 6669, "end_char": 6686, "source": "ner", "metadata": {"in_sentence": "A petition submitted to this Court for impleading the heirs and legal representatives in the appeal was also dismissed by an order made in chamber on February 9,\n\n1965."}}, {"text": "May 7, 1965", "label": "DATE", "start_char": 6723, "end_char": 6734, "source": "ner", "metadata": {"in_sentence": "Thereafter a petition was filed on May 7, 1965 for special leave to appeal against the order passed by the High Court refusing to bring on record the legal representatives of Basant Lal."}}, {"text": "January 20, 1966", "label": "DATE", "start_char": 6890, "end_char": 6906, "source": "ner", "metadata": {"in_sentence": "By order dated January 20, 1966 we have rejected this petition."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7765, "end_char": 7792, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Rameshwar Prasad", "label": "OTHER_PERSON", "start_char": 8219, "end_char": 8235, "source": "ner", "metadata": {"in_sentence": "It was held by this Court in Rameshwar Prasad' s case (') that an appellate Court has no power to proceed with an appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under 0 41, r. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned."}}, {"text": "Raghubar Dayal", "label": "JUDGE", "start_char": 12602, "end_char": 12616, "source": "ner", "metadata": {"in_sentence": "It may be pointed out that the three tests suggested by Raghubar Dayal, J., in Nathu Ram's case (3) are not cumulative tests."}}, {"text": "Nathu Ram", "label": "OTHER_PERSON", "start_char": 12625, "end_char": 12634, "source": "ner", "metadata": {"in_sentence": "It may be pointed out that the three tests suggested by Raghubar Dayal, J., in Nathu Ram's case (3) are not cumulative tests."}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 13119, "end_char": 13142, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 13510, "end_char": 13537, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 13864, "end_char": 13887, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "(1964] 3 S.C.R. 549", "label": "CASE_CITATION", "start_char": 13932, "end_char": 13951, "source": "regex", "metadata": {}}, {"text": "Dec. 14, 1964", "label": "DATE", "start_char": 13986, "end_char": 13999, "source": "ner", "metadata": {"in_sentence": "(2) C.A. 563 of 1963 decided on Dec. 14, 1964."}}, {"text": "(1962] 2 S.C.R. 636", "label": "CASE_CITATION", "start_char": 14006, "end_char": 14025, "source": "regex", "metadata": {}}, {"text": "Supreme Court Rules, 1950", "label": "STATUTE", "start_char": 14612, "end_char": 14637, "source": "regex", "metadata": {}}, {"text": "Article 171", "label": "PROVISION", "start_char": 15232, "end_char": 15243, "source": "regex", "metadata": {"linked_statute_text": "the Supreme Court Rules, 1950", "statute": "the Supreme Court Rules, 1950"}}, {"text": "First Schedule to the Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 15251, "end_char": 15300, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 137 & 138", "label": "PROVISION", "start_char": 15951, "end_char": 15964, "source": "regex", "metadata": {"linked_statute_text": "the First Schedule to the Indian Limitation Act, 1908", "statute": "the First Schedule to the Indian Limitation Act, 1908"}}, {"text": ".TAGI>ISH PAl.SHAI", "label": "RESPONDENT", "start_char": 16668, "end_char": 16686, "source": "ner", "metadata": {"in_sentence": "W CHAND V • .TAGI>ISH PAl."}}, {"text": "Basant Lal-havoc", "label": "PETITIONER", "start_char": 17123, "end_char": 17139, "source": "ner", "metadata": {"in_sentence": "It must therefore be held that the appeal has abated, because the representatives of the second appellant-Basant Lal-havoc not been brought on record within the time permitted by r. 14 of 0.", "canonical_name": "Basant Lal-havoc"}}, {"text": "Supreme Court Rules, 1950", "label": "STATUTE", "start_char": 17218, "end_char": 17243, "source": "regex", "metadata": {}}]}
{"document_id": "1966_3_458_461_EN", "year": 1966, "text": "SURENDRA NATII BIBRA\n\nSTEPHEN COURT LTD.\n\nFebruary 4, 1966 [J. C. SHAH, S. M. S!Klll AND V. RAMASWAMI, JJ.)\n\n1.And/ord and tena111-Pos>ession of whole of the premises agreed to not dtlivered-Tenant's right to suspend payment of entire rent.\n\nThe appellant e•ecuted a lease for a period . of 21 years. in respect of the respondent's flat consisti~ of 3 bedrooms, at a monthly rent of\n\nRs. 350. As the respondent <leltvered possession of only 2 bed rooms, the appellant snspended the payment of rent altogether. The respondent thereupon filed a suit for recovery of rent in the Court of Small Canseo\n\nbut it was dismissed.\n\nIn an application under •~ 38 of the Presiden::y Small Canseo Court Act the Full Bench of the Small Causes Court de creed the suit, and the decree was confirmed in the appellant\"a revision petition to the High Court under s. 11 S of the Civil Procedure Code and Art. 227 of the Constitution.\n\nIn appeal to this Court.\n\nHELD : The appellant must pay a proportionate part of the rent, becanse, it would be inequitable to allow the respondent, on the one hand, to recover the full rent when he had not delivered possession of the whole of the premises, and on the other, to allow the appellant to enjoy a substantial portion of the property of the landlord without much inconvenience as a windfall.\n\nIt will depend on the circumstances of each case whether a tenant would be entitled to snspend payment of the rent fully or whether he should be held liable to pay the proportionate part of the rent. [460 DFl\n\nRa:n Lal Dutt Sarkar v. Dhirendra Nath Roy, (19431 70 I.A. 18 applied.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 661 of 1963.\n\nAppeal by special leave from the judgment and order dated August 17, 1959 of the Calcutta High Court in Civil Rule No.\n\n274 of 1958.\n\nF N. C. Chatterjee and S11kumar Ghose, for the appellant.\n\nSarjoo Prasad and S. C. Mawmdar, for the respondent.\n\nThe Judgment of the Court was delivered by Sikri J. This appeal by special leave is directed against the judgment of the High Court of Calcutta in an application under G s. 115 of the Code of Civil Procedure and under art. 227 of the Constitution filed by the tenant, Shri Surendra Nath Bibra, now appellant before us.\n\nStephen Court Limited, respondent before us, hereinafter referred to as the plaintiff, filed a suit in the Court of Small Causes, Calcutta, for the recovery of rent from September 1956 to Novem II ber 1956, at the rate of Rs. 350/· per menscm, and interest, against the appellant, hereinafter referred to as the defendant, alleging that the defendant was a monthly tenant by virtue of a lease dated\n\n\\ •\n\n, ' •\n\nS. N. BIBRA v. STl!PHl!N COURT (Sikri, ].) 459\n\nApril 30, 1956, under the plaintiff, in respect of flat No. 17 at pre mises No. ISA, Park Street, known as Stephen Court in the town of Calcutta, and that the defendant had not paid the rent from September to November, 1956. The defendant, inter alia, pleaded that relying on the representation and assurance of the plaintiff that three bed-rooms, two bath rooms etc. would be available to the defendant in flat No. 17 he executed a lease on April 30, 1956, for a period of 21 years, but the plaintiff put him in possession only of two bed-rooms and not three, and according to him, in the circumstances he was entitled to suspend the rent altogether.\n\nThe Small Cause Court Judge, Mr. Manda!, found that the defendant had not been put into possession of one of the three bed-rooms. Purporting to follow Katyayani Debi v. Udoy Kumar Das (1) and Abhoya Charan Sen v. Hem Chandra Pal (2) he held that the defendant was entitled to suspend payment of rent to the plaintiff.\n\nThe plaintiff then preferred an application under s. 38 of the Presidency Small Cause Courts Act against the dismissal of its suit. The Full Bench of the Small Causes Court, following Ram Lal Dutt Sarkar v. Dhirendra Nath Roy,(3) held that the plaintiff's claim for arrears of rent must succeed in spite of the fact that the landlord had failed to give possession of one out of the three bed-rooms of the demised premises. The Bench, however, made it clear that the \"non-applicability of the principle of suspension of rent in the present suit for recovery of arrears of rent for a particular period will not necessarily debar the tenant from claiming other appropriate reliefs against the failure of the landlord to put him in possession of the entire demised premises by way of apportionment of rent or damages.' Accordingly, it decreed the suit.\n\nThe defendant then filed an application under s. 115, Civil Procedure Code, and art. 227 of the Constitution. In the applica tion the defendant prayed that the suit be dismissed. In the alternative, the defendant alleged that the plaintiff was at best entitled only to a proportionate rent. The High Court dismissed the application and the defendant having obtained special leave, the matter is now before us.\n\nMr. N: C. Chatterjee, the learned counsel for the defendant, contends that the decision in Ram Lal Dutt's (4) case which the High Court and the Full Bench of the Small Causes Court had followed was distinguishable because in that case the tenancy was an agricultural tenancy and the tenant in that case had raised the point after the lapse of a number of years. He says that the doctrine of suspension of rent should be applied to the facts of thii case because the plaintiff had deliberately not given possession\n\n(I} 30 C.W.N. (P.C.) J.\n\n(2) 33 C.W, N. ns.\n\nC3) 70 I.A. 18.\n\nSUPUWll COUJ.T UPO.TI\n\n(1966) 3 S.C.R.\n\nof one bed-room. In the alternative he contends that the Full Bench of the Small Causes Court and the High Court should have made an order for apportionment of rent.\n\nWe are unable to agree with Mr. Chatterjee that the decision of the Privy Council in Ram Lal Dutt's (')case can be distinguished on the ground urged by him. It is no doubt true that the Privy Council was concerned with an agricultural tenancy but the Privy Council decided the appeal on a matter of principle, the principle being that the doctrine enunciated in Neale v. Mackenzie (2) should not be regarded as a rule of justice, equity and good conscience in India in all circumstances. It is interesting to note that the 1ubjcct-matter of the lease in Neale v. Mackenzie (2) was a dwelling house and land attached to it, and it was eight acres of the land which was attached to the house that the tenant had been kept out of possession. Be that as it may, in our opinion, the doctrine laid down in Neale v. Mackengie (2) is too inflexible and cannot be applied to all cases. As observed by Sir George Rankin, the doctrine cannot be justified as a dependable rule to be adhered to notwithstanding hard cases. On the one hand it does not seem -equitable that when a tenant enjoys a substantial portion of the property of the landlord, leased to him, without much inconvenience, he should not pay any compensation for the use of the property, in other words, to borrow the language of Sir George Rankin, that he should enjoy a windfall. On the other hand it ia unfair that if a tenant is not given possession of a substantial portion of the property, he should be asked to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of the contract. It seems to us that it will depend on the circumstances of each case whether a tenant would be entitled to suspend payment of the rent or whether he should be held liable to pay proportionate part of the rent. On the facts of this case we are of the opinion that the tenant is not entitled to suspend the payment of rent but he must pay a proportionate part of the rent.\n\nWe may make it clear that like the Privy Council in Ram IAl Dlltt's (') case we are not deciding that the doctrine of suspension of rent should or should not \"be applied at all to cases of eviction -0f the lessee by the lessor from a part of the land, and if so, whether it is limited to rents reserved as a lump sum, and whether it is a rigid or discretionary rule-these questions will call for careful review when they are presented by the facts of a particular case.\" In view of this we need not consider cases like Hakim Sardar Baltadur v. Parkash Singh (3); Jatindra Kumar Seal v. Raimohan Bai (4); .and Nilkantha Pali v. Kshitish Chandra Satati.(S)\n\n(I) 70 I.A. 18.\n\n(2) ISO l!.R. 6J5.\n\n(3) A.l.R. (1962} Pun. 385.\n\n(4) A.l.R. (l!Hil) Aa. SJ.\n\n(5) I. L.ll. (19S2) I Cal. 59.\n\n• D\n\ns. N. BmllA v. STEPHEN COUllT (Sikri, l.) 461\n\nThe High Court rejected the plea of apportionment of rent on the ground that the defendant had not taken a specific plea to this effect in the written statement. The second ground given by the High Court was that it would be unreasonable to thrust a relief on the defendant unless he himself chooses one or more of the alternative reliefs available to him. Further, no prayer was made before the High Court to amend the written statement to include this relief.\n\nIn our opinion, the Full Bench of the Small Causes Court should have remanded the case for calculation of the proportionate rent for the portion of the premises taken possession of by the defendant. In our view, the High Court has taken too technical a view. It would be inequitable to allow the plaintiff to recover the full rent when he has not delivered possession of the whole of the premises in question.\n\nMr. Sarjoo Prasad, the learned counsel for the plaintiff, urges that the defendant had paid rent voluntarily for four monthsthis fact also is relied on by the High Court-and therefore we should not remand the case. But we find that three months' rent was paid in advance as security deposit, and hence there is no force in the contention.\n\nMr. Sarjoo Prasad finally contends that as this appeal arises from an application under s. ll5 of Civil Procedure Code and art. 227 of the Constitution, we should not interfere with the decision of the Full Bench of the Small Causes Court even though it be erroneous. A similar point was raised before the High Court and although the High Court found some substance in the point it chose to go into the merits of the case and not dismiss the application on this ground. It must be remembered that the application was also under art. 227 of the Constitution, and although ordinarily art. 227 should be used sparingly, on the facts of this case we are satisfied that the High Court was right in not throwing out the application on t)iis ground.\n\nIn the result the appeal succeeds. We set aside the orders of the High Court and of the Full Bench of the Small Causes Court and of the Judge Small Causes Court, and remand the case to the Court of Small Causes, Calcutta, with the direction that it will dispose of the suit in the light of this judgment. The parties would be at liberty to lead evidence before the Court of Small Causes on the question of apportionment of rent. In the circumstances of the case there would be no order as to costs.\n\nAppeal allowed.", "total_entities": 39, "entities": [{"text": "SURENDRA NATII BIBRA", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "SURENDRA NATII BIBRA", "offset_not_found": false}}, {"text": "STEPHEN COURT LTD", "label": "RESPONDENT", "start_char": 22, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "Stephen Court Limited", "offset_not_found": false}}, {"text": "February 4, 1966", "label": "DATE", "start_char": 42, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "February 4, 1966 [J. C. SHAH, S. M. S!Klll AND V. RAMASWAMI, JJ.)"}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 63, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 89, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Small Canseo Court Act", "label": "STATUTE", "start_char": 671, "end_char": 693, "source": "regex", "metadata": {}}, {"text": "s. 11", "label": "PROVISION", "start_char": 844, "end_char": 849, "source": "regex", "metadata": {"linked_statute_text": "Small Canseo Court Act", "statute": "Small Canseo Court Act"}}, {"text": "Art. 227", "label": "PROVISION", "start_char": 884, "end_char": 892, "source": "regex", "metadata": {"linked_statute_text": "Small Canseo Court Act", "statute": "Small Canseo Court Act"}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 1743, "end_char": 1762, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated August 17, 1959 of the Calcutta High Court in Civil Rule No."}}, {"text": "F N. C. Chatterjee", "label": "LAWYER", "start_char": 1796, "end_char": 1814, "source": "ner", "metadata": {"in_sentence": "F N. C. Chatterjee and S11kumar Ghose, for the appellant."}}, {"text": "S11", "label": "PROVISION", "start_char": 1819, "end_char": 1822, "source": "regex", "metadata": {"statute": null}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 1855, "end_char": 1868, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and S. C. Mawmdar, for the respondent.", "canonical_name": "Sarjoo Prasad"}}, {"text": "S. C. Mawmdar", "label": "LAWYER", "start_char": 1873, "end_char": 1886, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and S. C. Mawmdar, for the respondent."}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 2030, "end_char": 2052, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sikri J. This appeal by special leave is directed against the judgment of the High Court of Calcutta in an application under G s. 115 of the Code of Civil Procedure and under art."}}, {"text": "s. 115", "label": "PROVISION", "start_char": 2079, "end_char": 2085, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 2089, "end_char": 2116, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "art. 227", "label": "PROVISION", "start_char": 2127, "end_char": 2135, "source": "regex", "metadata": {"statute": null}}, {"text": "Surendra Nath Bibra", "label": "LAWYER", "start_char": 2182, "end_char": 2201, "source": "ner", "metadata": {"in_sentence": "227 of the Constitution filed by the tenant, Shri Surendra Nath Bibra, now appellant before us.", "canonical_name": "SURENDRA NATII BIBRA"}}, {"text": "Stephen Court Limited", "label": "RESPONDENT", "start_char": 2229, "end_char": 2250, "source": "ner", "metadata": {"in_sentence": "Stephen Court Limited, respondent before us, hereinafter referred to as the plaintiff, filed a suit in the Court of Small Causes, Calcutta, for the recovery of rent from September 1956 to Novem II ber 1956, at the rate of Rs.", "canonical_name": "Stephen Court Limited"}}, {"text": "Court of Small Causes, Calcutta", "label": "COURT", "start_char": 2336, "end_char": 2367, "source": "ner", "metadata": {"in_sentence": "Stephen Court Limited, respondent before us, hereinafter referred to as the plaintiff, filed a suit in the Court of Small Causes, Calcutta, for the recovery of rent from September 1956 to Novem II ber 1956, at the rate of Rs."}}, {"text": "Calcutta", "label": "GPE", "start_char": 2825, "end_char": 2833, "source": "ner", "metadata": {"in_sentence": "ISA, Park Street, known as Stephen Court in the town of Calcutta, and that the defendant had not paid the rent from September to November, 1956."}}, {"text": "April 30, 1956", "label": "DATE", "start_char": 3131, "end_char": 3145, "source": "ner", "metadata": {"in_sentence": "17 he executed a lease on April 30, 1956, for a period of 21 years, but the plaintiff put him in possession only of two bed-rooms and not three, and according to him, in the circumstances he was entitled to suspend the rent altogether."}}, {"text": "Manda", "label": "JUDGE", "start_char": 3375, "end_char": 3380, "source": "ner", "metadata": {"in_sentence": "The Small Cause Court Judge, Mr. Manda!,"}}, {"text": "s. 38", "label": "PROVISION", "start_char": 3711, "end_char": 3716, "source": "regex", "metadata": {"statute": null}}, {"text": "Presidency Small Cause Courts Act", "label": "STATUTE", "start_char": 3724, "end_char": 3757, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 115", "label": "PROVISION", "start_char": 4557, "end_char": 4563, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 4565, "end_char": 4585, "source": "regex", "metadata": {}}, {"text": "art. 227", "label": "PROVISION", "start_char": 4591, "end_char": 4599, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "N: C. Chatterjee", "label": "OTHER_PERSON", "start_char": 4926, "end_char": 4942, "source": "ner", "metadata": {"in_sentence": "Mr. N: C. Chatterjee, the learned counsel for the defendant, contends that the decision in Ram Lal Dutt's (4) case which the High Court and the Full Bench of the Small Causes Court had followed was distinguishable because in that case the tenancy was an agricultural tenancy and the tenant in that case had raised the point after the lapse of a number of years."}}, {"text": "Ram Lal Dutt", "label": "OTHER_PERSON", "start_char": 5013, "end_char": 5025, "source": "ner", "metadata": {"in_sentence": "Mr. N: C. Chatterjee, the learned counsel for the defendant, contends that the decision in Ram Lal Dutt's (4) case which the High Court and the Full Bench of the Small Causes Court had followed was distinguishable because in that case the tenancy was an agricultural tenancy and the tenant in that case had raised the point after the lapse of a number of years.", "canonical_name": "Ram IAl Dlltt"}}, {"text": "Chatterjee", "label": "OTHER_PERSON", "start_char": 5738, "end_char": 5748, "source": "ner", "metadata": {"in_sentence": "We are unable to agree with Mr. Chatterjee that the decision of the Privy Council in Ram Lal Dutt's (')case can be distinguished on the ground urged by him."}}, {"text": "India", "label": "GPE", "start_char": 6166, "end_char": 6171, "source": "ner", "metadata": {"in_sentence": "It is no doubt true that the Privy Council was concerned with an agricultural tenancy but the Privy Council decided the appeal on a matter of principle, the principle being that the doctrine enunciated in Neale v. Mackenzie (2) should not be regarded as a rule of justice, equity and good conscience in India in all circumstances."}}, {"text": "George Rankin", "label": "OTHER_PERSON", "start_char": 6602, "end_char": 6615, "source": "ner", "metadata": {"in_sentence": "As observed by Sir George Rankin, the doctrine cannot be justified as a dependable rule to be adhered to notwithstanding hard cases."}}, {"text": "Ram IAl Dlltt", "label": "OTHER_PERSON", "start_char": 7733, "end_char": 7746, "source": "ner", "metadata": {"in_sentence": "We may make it clear that like the Privy Council in Ram IAl Dlltt's (') case we are not deciding that the doctrine of suspension of rent should or should not \"be applied at all to cases of eviction -0f the lessee by the lessor from a part of the land, and if so, whether it is limited to rents reserved as a lump sum, and whether it is a rigid or discretionary rule-these questions will call for careful review when they are presented by the facts of a particular case.\"", "canonical_name": "Ram IAl Dlltt"}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 9393, "end_char": 9406, "source": "ner", "metadata": {"in_sentence": "Mr. Sarjoo Prasad, the learned counsel for the plaintiff, urges that the defendant had paid rent voluntarily for four monthsthis fact also is relied on by the High Court-and therefore we should not remand the case.", "canonical_name": "Sarjoo Prasad"}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 9827, "end_char": 9847, "source": "regex", "metadata": {}}, {"text": "art. 227", "label": "PROVISION", "start_char": 9852, "end_char": 9860, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "art. 227", "label": "PROVISION", "start_char": 10257, "end_char": 10265, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "art. 227", "label": "PROVISION", "start_char": 10311, "end_char": 10319, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}]}
{"document_id": "1966_3_462_465_EN", "year": 1966, "text": "STATE OF UTIAR PRADESH\n\nR. B. AGARWAL\n\nFebruary 4, 1966\n\n(P.\n\n. GAJENDRAGADKAR, C. ]., K. N. WA1'CHOO, J.C. SHAH, B S. M. SJKRI AND V. RAMASWAMI, JJ.j\n\nCoMtilllllon of Indio Art. 134( I)( c)-Hlgh Cornt acquiu p'1'sorr convlcttd by trial court-State's applit:otlon /or certi{icatl, II corrtp.i1nt.\n\nIf an accused person is convicted by the trial court and on appeal to the High Court, his conviction is set aside the State is entiUed to apply to the High Court for certificate under Art. l34(l)(c). Such an application cannot be rejected In I/mine on the ground that it is incompetent; it has to be entertained and considered and decided on the merits. (465 DJ\n\nThe relevant words in Art. 134(1 )(c) are wide in their •weep.\n\nThey authoriae an application for a certificate from any judpnent, final order, or sentence in a crimioal proceeding of a High Court.\n\nThe sweep 6f the relevant words used in Art. 134(1 )(c) being very wide, it is not necessary to took for any separate provision in the Cons11tution which would correspond to a. 417 Cof!e of Ctiminal Procedure. (464 HJ\n\nObservations contra in S. Maiumdar v. A. Brahmachari and Others, Cr. A No. 21 of 1960, dt. 14-9-1964 and Start Government, Madhya\n\nl'radh v. Ramakrl.thna Ganpatrao Llmsey and others A.l.R. 1954 S.C. 20, disapproved.\n\nCRIMINAL APPELLATE JURJSDJCTION : Criminal Appeal No. 178 of 1965.\n\nAppeal by special leave from the judgment and order dated August 26, 1965 of the Allahabad High Court (Lucknow Bench) at Lucknowin S. C. Appeal No. 85 of 1965.\n\nO. P. Rana, for the appellant.\n\nR. K. Garg, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nGajendragadkar, C. J. If an accused person is convicted by the trial court, but on appeal to the High Court is acquitted, can the State move the High Court under Art. 134(1)(c) of the Constitution for a certificate that the case in question is a fit one for appeal to the Supreme Court? That is the short question which arises in this appeal by special leave.\n\nThe respondent R. B. Agarwal was committed to the sessions for trial by the Judicial Officer, Lucknow under sections 467 and 471 of the Indian Penal Code. The learned Assistant Sessions\n\nJudge who tried his case, dropped the charge under section 471, but convicted the respondent under s. 467, l.P.C. and sentenced\n\n. 1\n\nu. P. STATE v. AGARWAL (Gajendragadkar, C./.) 463'\n\nA him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 10,000/· and in default to undergo further rigorous imprisonment for a period of two years.\n\nThe respondent challenged the said order of conviction and sentence by preferring an appeal before the High Court of Judicature at Allahabad, Lucknow Bench. The High Court allowed the respondent's appeal, set aside the order of conviction and sentence imposed on him by the trial court, and directed that he should be acquitted. The appellant, the State of Uttar Pradesh, then applied to the High Court for a certificate under Art. l34(1)(c) of the Constitution. The High Court has rejected the said application on the ground \"that in view of the latest pronouncement of the Supreme Court in S. Majumdar v. A. Brahmachari and Others('). Article 134 does not provide for an appeal to the Supreme Court from an order of acquittal by the High Court\". It is this order refusing to entertain the appellant's application for certificate on the ground that it is incompetent under Article 134(l)(c). which is challenged before us by the appellant in the present appeal.\n\nMr. Rana for the appellant contends that the words used in Art. l34(l)(c) are plain and unambiguous, and they do not justify the view taken by the High Court that it is not open to the State to move the High Court for a certificate in a case where the High Court has set aside the order of conviction and sentence passed by the trial court against an accused person. Article 134(1)(c) provides that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court certifies that the case is a fit one for appeal to the Supreme Court. It will be noticed that in tLe present appeal, we are not concerned with the question as to whether the application made by the appellant for a certificate should be granted or not; that is a part of the merits of the enquiry which the High Court will have to hold in case we come to the conclusion that the High Court was in error in taking the view that the application made by the appellant was incompetent. The stage to consider the merits of the said application can arise only if and after the application is held to be competent.\n\nNow the relevant words in Art. 134(1)(c) are wide in their sweep. They authorise an application for a certificate from any judgment, final order, or sentence in a criminal proceeding of a High Court. It is difficult to see how an order of acquittal passed by the High Court in an appeal preferred before it by convicted accused person cannot be said to be a judgment, or final order in a criminal proceeding of the High Court. Therefore, on the plain. words of Art. 134(l)(c), we see no escape from the conclusion\n\n(I) Criminal Appeal No. 21 of 1960 decided on September 14, 1964.\n\nSUYJUIMJI COtlaT J.BPOllTS\n\n(1966) 3 S.C.lt.\n\nthat if an accused person is convicted by the trial court and on A appeal, the High Court sets aside the said order of conviction, • it would be competent to the State to apply to the High Covt for certificate under Art. 134(1)(c) of the Constitution. ,.\n\nArt. 134(1)(a) and (b) confer a right of an appeal to this Court, whereas Art. 134(l)(c) confers a right on the aggrieved party to make an application for a certificate; and it is for the High Court to consider whether the certificate of fitness should be issued or not. Art. 134(1)(c) docs not, therefore, give the State a right to move this Court by way of an appeal against the order of acquittal passed by the High Court in appeal. Nevertheless, it has a right to move the High Court for a certificate in that behalf. In our opinion, this position is plain and unambiguous.\n\nIt, however, appears that in The State Government, Madhya Pradesh v. Ramakrishna Ganpatrao Limsey and Others (1), this Court has made certain observations which are likely to create an impression that an application for a certificate would be incompetent in regard to cases where an order of conviction passed by the trial Court has been set aside by the HigA Court on appeal.\n\nThe said case had come to this Court under Art. 136 by special leave, and on the merits this Court came to the conclusion that no case had been made out for interference by this Court with the order passed by the High Court which was under appeal. That shows that the question as to whether an application for a certificate can be made by the State against an order of acquittal by the High Court on appeal, did not fall to be considered at all. Even\n\nso, incidentally, this Court has referred to Article 134 and has observed that Art. 134 does not provide for an appeal from a judgment, final order, or sentence in a criminal proceeding of a High Court if the High Court has on appeal reversed an order of conviction of an accused person and has ordered his acquittal.\n\nIn this connection, it has also been observed that there is no provision in the Constitution corresponding to s. 417 of the Code of Criminal Procedure and such an order is fmal, subject however to the over-riding powers vested in this Court by Art. 136 of the Constitution. With respect, the fact that no provision has been made in the Constitution which may be said to correspond to s. 417, Cr. P. C., is of no significance in view of the fact that tho\n\nwords used in Art. 134(l)(c) are wide enough to take in appellate orders of acquittal passed by the High Courts while dealing with appeals brought before them by accused persons who are convicted by the trial courts. As we have already idicated, te sll'.ee_P of the relevant words used in Art. I34(l)(c) bemg very wide, 1t ':5\n\nhardly necessary to look for any separate provision in the Conslltution which would correspond to s. 417, Cr. P. C. Therefore,\n\nI A.l.R. 19S4 S.C. 2J.\n\n• D\n\n• .D\n\n.'F\n\nu. P. STATE v. AGARWAL (Gaiendragadkar, c. J.) 465\n\nwe do not think that the observations made by this Court in Lim sey' s case(') can be said to represent correctly the true legal psi tion as to the scope and effect of Art. 134(l)(c) of the Constitution.\n\nIn Shantiranjan Majumdar's case(2) this Court was again dealing with an application brought before it under Art. 136 by special leave, and in considering the merits of the appeal, incidentally, reference has been made to the earlier decision of the Court in Limsey's case(•) and it has been observed that according to the said decision there is no provision in the Constitution corresponding to s. 417, Cr. P. C. and, therefore, the order of acquittal made by the High Court is final, subject however to the over-riding powers of this Court under Act. 136 of the Constitution: What we have said about the relevant observations made in Limsey' s case(') applies equally to the observations made in Shantiranjan M ajumdar 's case(2).\n\nIn our opinion, therefore, the true legal position is that if an accused person is convicted by the trial court and on appeal to the High Court, his conviction is set aside, the State is entitled to apply to the High Court for a certificate under Art. 134(l)(c).\n\nSuch an application cannot be rejected in limine on the ground that it is incompetent; it has to be entertained and considered and decided on the merits.\n\nThe result is the appeal is allowed, the order of the High Court refusing to grant a certificate on the ground that the application made by the appellant in that behalf is incompetent, is set aside and it is remitted to the High Court for disposal in accordance with law.\n\nAfter we granted special leave to the appellant to file an appeal against the impugned order refusing to entertain the appellant's application for a certificate, as a matter of precaution, to save limitation, the appellant has also filed an application for special leave to appeal to this Court against the appellate decision of the High Court on the merits. We cannot and do not propose to deal with the said application, because 0.21 •· 2 of the Supreme Court Rules provides, inter alia, that where an appeal lies to the Supreme Court on a certificate issued by the High Court, no application to the Supreme Court for special leave to appeal shall be entertained unless the High Court has first been moved and it has refused to grant a certificate. We would, therefore, direct that the application for special leave filed by the appellant should stand over until the final decision by the High Court on the merits of the appellant's application for certificate which we are remitting to the High Court for decision in accordance with law.\n\nAppeal allowed.\n\n(I) A.l.R. 1954 S.C. 20.\n\n(2) Cr. p. No. 21 of 1460 dt. Sept. 14, 1964", "total_entities": 54, "entities": [{"text": "STATE OF UTIAR PRADESH", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTTAR PRADESH", "offset_not_found": false}}, {"text": "R. B. AGARWAL", "label": "RESPONDENT", "start_char": 24, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "R. B. AGARWAL", "offset_not_found": false}}, {"text": "February 4, 1966", "label": "DATE", "start_char": 39, "end_char": 55, "source": "ner", "metadata": {"in_sentence": "STATE OF UTIAR PRADESH\n\nR. B. AGARWAL\n\nFebruary 4, 1966\n\n(P.\n\n."}}, {"text": "GAJENDRAGADKAR", "label": "JUDGE", "start_char": 64, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "GAJENDRAGADKAR", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 105, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ", "label": "JUDGE", "start_char": 132, "end_char": 148, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Art. 134( I)( c)", "label": "PROVISION", "start_char": 174, "end_char": 190, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 134(1 )(c)", "label": "PROVISION", "start_char": 683, "end_char": 698, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 134(1 )(c)", "label": "PROVISION", "start_char": 900, "end_char": 915, "source": "regex", "metadata": {"statute": null}}, {"text": "O. P. Rana", "label": "LAWYER", "start_char": 1525, "end_char": 1535, "source": "ner", "metadata": {"in_sentence": "O. P. Rana, for the appellant."}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 1557, "end_char": 1567, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, for the respondent."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 1634, "end_char": 1648, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar, C. J. If an accused person is convicted by the trial court, but on appeal to the High Court is acquitted, can the State move the High Court under Art.", "canonical_name": "GAJENDRAGADKAR"}}, {"text": "Art. 134(1)(c)", "label": "PROVISION", "start_char": 1796, "end_char": 1810, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1906, "end_char": 1919, "source": "ner", "metadata": {"in_sentence": "134(1)(c) of the Constitution for a certificate that the case in question is a fit one for appeal to the Supreme Court?"}}, {"text": "R. B. Agarwal", "label": "RESPONDENT", "start_char": 2010, "end_char": 2023, "source": "ner", "metadata": {"in_sentence": "The respondent R. B. Agarwal was committed to the sessions for trial by the Judicial Officer, Lucknow under sections 467 and 471 of the Indian Penal Code.", "canonical_name": "R. B. AGARWAL"}}, {"text": "Lucknow", "label": "GPE", "start_char": 2089, "end_char": 2096, "source": "ner", "metadata": {"in_sentence": "The respondent R. B. Agarwal was committed to the sessions for trial by the Judicial Officer, Lucknow under sections 467 and 471 of the Indian Penal Code."}}, {"text": "sections 467 and 471", "label": "PROVISION", "start_char": 2103, "end_char": 2123, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 2131, "end_char": 2148, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 471", "label": "PROVISION", "start_char": 2233, "end_char": 2244, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 467", "label": "PROVISION", "start_char": 2281, "end_char": 2287, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Judicature at Allahabad, Lucknow Bench", "label": "COURT", "start_char": 2642, "end_char": 2694, "source": "ner", "metadata": {"in_sentence": "The respondent challenged the said order of conviction and sentence by preferring an appeal before the High Court of Judicature at Allahabad, Lucknow Bench."}}, {"text": "State of Uttar Pradesh", "label": "ORG", "start_char": 2887, "end_char": 2909, "source": "ner", "metadata": {"in_sentence": "The appellant, the State of Uttar Pradesh, then applied to the High Court for a certificate under Art."}}, {"text": "Article 134", "label": "PROVISION", "start_char": 3176, "end_char": 3187, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 134(l)(c)", "label": "PROVISION", "start_char": 3413, "end_char": 3430, "source": "regex", "metadata": {"statute": null}}, {"text": "Rana", "label": "OTHER_PERSON", "start_char": 3507, "end_char": 3511, "source": "ner", "metadata": {"in_sentence": "Mr. Rana for the appellant contends that the words used in Art."}}, {"text": "Article 134(1)(c)", "label": "PROVISION", "start_char": 3870, "end_char": 3887, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 4047, "end_char": 4052, "source": "ner", "metadata": {"in_sentence": "Article 134(1)(c) provides that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court certifies that the case is a fit one for appeal to the Supreme Court."}}, {"text": "Art. 134(1)(c)", "label": "PROVISION", "start_char": 4705, "end_char": 4719, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 134(l)(c)", "label": "PROVISION", "start_char": 5140, "end_char": 5154, "source": "regex", "metadata": {"statute": null}}, {"text": "September 14, 1964", "label": "DATE", "start_char": 5240, "end_char": 5258, "source": "ner", "metadata": {"in_sentence": "21 of 1960 decided on September 14, 1964."}}, {"text": "SUYJUIMJI COtlaT J.BPOllTS", "label": "JUDGE", "start_char": 5261, "end_char": 5287, "source": "ner", "metadata": {"in_sentence": "SUYJUIMJI COtlaT J.BPOllTS\n\n(1966) 3 S.C.lt."}}, {"text": "Art. 134(1)(c)", "label": "PROVISION", "start_char": 5523, "end_char": 5537, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 134(1)(a)", "label": "PROVISION", "start_char": 5563, "end_char": 5577, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 134(l)(c)", "label": "PROVISION", "start_char": 5637, "end_char": 5651, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 134(1)(c)", "label": "PROVISION", "start_char": 5834, "end_char": 5848, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 6563, "end_char": 6571, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 134", "label": "PROVISION", "start_char": 7017, "end_char": 7028, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 134", "label": "PROVISION", "start_char": 7051, "end_char": 7059, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 417", "label": "PROVISION", "start_char": 7401, "end_char": 7407, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 7415, "end_char": 7441, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 7535, "end_char": 7543, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 417", "label": "PROVISION", "start_char": 7675, "end_char": 7681, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 134(l)(c)", "label": "PROVISION", "start_char": 7760, "end_char": 7774, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 417", "label": "PROVISION", "start_char": 8172, "end_char": 8178, "source": "regex", "metadata": {"statute": null}}, {"text": "Lim sey", "label": "OTHER_PERSON", "start_char": 8354, "end_char": 8361, "source": "ner", "metadata": {"in_sentence": "R. 19S4 S.C. 2J.\n\n• D\n\n• .D\n\n.'F\n\nu. P. STATE v. AGARWAL (Gaiendragadkar, c. J.) 465\n\nwe do not think that the observations made by this Court in Lim sey' s case(') can be said to represent correctly the true legal psi tion as to the scope and effect of Art.", "canonical_name": "Lim sey"}}, {"text": "Art. 134(l)(c)", "label": "PROVISION", "start_char": 8462, "end_char": 8476, "source": "regex", "metadata": {"statute": null}}, {"text": "Shantiranjan Majumdar", "label": "OTHER_PERSON", "start_char": 8502, "end_char": 8523, "source": "ner", "metadata": {"in_sentence": "In Shantiranjan Majumdar's case(2) this Court was again dealing with an application brought before it under Art.", "canonical_name": "Shantiranjan M ajumdar"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 8607, "end_char": 8615, "source": "regex", "metadata": {"statute": null}}, {"text": "Limsey", "label": "OTHER_PERSON", "start_char": 8757, "end_char": 8763, "source": "ner", "metadata": {"in_sentence": "136 by special leave, and in considering the merits of the appeal, incidentally, reference has been made to the earlier decision of the Court in Limsey's case(•) and it has been observed that according to the said decision there is no provision in the Constitution corresponding to s. 417, Cr.", "canonical_name": "Lim sey"}}, {"text": "s. 417", "label": "PROVISION", "start_char": 8894, "end_char": 8900, "source": "regex", "metadata": {"statute": null}}, {"text": "Shantiranjan M ajumdar", "label": "OTHER_PERSON", "start_char": 9196, "end_char": 9218, "source": "ner", "metadata": {"in_sentence": "136 of the Constitution: What we have said about the relevant observations made in Limsey' s case(') applies equally to the observations made in Shantiranjan M ajumdar 's case(2).", "canonical_name": "Shantiranjan M ajumdar"}}, {"text": "Art. 134(l)(c)", "label": "PROVISION", "start_char": 9479, "end_char": 9493, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court Rules", "label": "COURT", "start_char": 10372, "end_char": 10391, "source": "ner", "metadata": {"in_sentence": "We cannot and do not propose to deal with the said application, because 0.21 •· 2 of the Supreme Court Rules provides, inter alia, that where an appeal lies to the Supreme Court on a certificate issued by the High Court, no application to the Supreme Court for special leave to appeal shall be entertained unless the High Court has first been moved and it has refused to grant a certificate."}}, {"text": "Sept. 14, 1964", "label": "DATE", "start_char": 11039, "end_char": 11053, "source": "ner", "metadata": {"in_sentence": "Sept. 14, 1964"}}]}
{"document_id": "1966_3_466_473_EN", "year": 1966, "text": "SMT. SHYAM KISHORI DEVI\n\nPATNA MUNICIPAL CORPORATION & ANR.\n\nFebruary 4. 1966\n\n(K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACHAWAT, JJ.]\n\nBi/uJr and Orissa Municipal Act, 1922 (B. & 0. Act 7 o/ 1922), a. 107(l)(c). 117(1) and 38&-suptrsersion of Municipaliry-No1ific01/ons appointing ofjicr to act as Commissioners and as commJttt~Enhancenz1m of municipal taxts by such officer and si11i11g in uview 4' Committtt-V alidiry-Incorrtct a.rstssmmt, burdt\" o/ proof o/.\n\nOn supersession of the Patna Municipality, the Stale Oo\\-emment by a notification directed an officer of the Municipalily to exercise and perform tile powers and duties of tho Commissioner under a. 107 of the Bihar and Orissa Municipal Act, 1922. Under s. 117 every application presented to the Commissioners for review of an assessment or valuation had to be heard and determined by a Committee consisting of two Commissioners. two tax-payers and a Deputy Magistrate as provided in tbe section. By a later notiftcation, the Government directed each of tho three per.ons\n\nmentioned therein-one of whom was the aforesaid officer, to exercise and 11erform the powers and duties conferred and imposed on Comminee constituted under s. 117 of the Act.\n\nPursuant to these notifications, the said officer enhanced the valuation of the holding of the appellant and the assessment thereof under s. 107(l)(c) of the Act and rejected the re'l'!ew petition under a. 117(1) of the Act.\n\nTho appellant llled a auit challenging the validity of the order of the officer.\n\nHELD : (i) The order or the officer rejecting the objections filed by the appellant and enhancing the value of the holdings was without jurisdiction.\n\nBy a later otification, if it was intended to replace the committee by one or other of the throe persons mentioned therein. it would be beyond the powers ot the Government conferred under the provision• or •. 386(1)\n\n(b) of !he Act. The effect of this clause is that all the powers and duties of the Commissioners conferred and imposed on them under the vario111 sections of the Act whether act:ng in oommittees or individually would be exercised by such person or per.tons as the Slate Government may direct.\n\nSo, the committee under s. 117 could have been constituted with one or more of the three per.; ons nominated by the Government under s. 386( I)\n\n(b) of the Act. and two tax-payers nominated by them and a Deputy Magistrate nominated by the Government.\n\nTo say that when once the Commissioners vaca1ed their office on superaession it was impossible for them to nominate or elect two other tax-payers to the commitee within the\n\nmeaning of s. 117(1) would render inorerative all sections whereundor powers were conferred or duties imposed on Commissioners, and would make s. 117 (I) unworkable leading to the anomaly that the same officer wbo revised the assessment would sit in judgment over It. [471 O; 472\n\nA-DJ\n\n(ii) Under s. 107(1 )(c) of the Act, the burden ia upon the CommD- 1ioners, before they could amend the valuation and assessment already made, to establish that the previous assessment was incorrectly made by\n\nr-ason. of fraud. mis-rcprcscntaion or mistake.\n\n(472 G] C!vn. A.Pl'el.UTB JURISDICTION : Civil Appeal No. 812 or 1963.\n\nA D\n\nI F •\n\nSHYAM KISHORI v. MUNIC. CORP. (Subba Rao, I.) 467\n\nAppeal by special leave from the judgment and decree dated September 21, 1959 of the Patna High Court in Appeal from Appellate Decree No. 1766 of 1954.\n\nRamanugrah and Mohan Behari Lal, for the appellant.\n\nS. P. Varma, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nSobba Rao. J. This appeal by special leave raises the question of the true construction of subs. (!) of s. 117 of the Bihar and Orissa Municipal Act, 1922 (B. & 0. Act 7 of 1922), herein after called the Act.\n\nShrimati Shyam Kishori Devi, the appellant, is the owner of premises known as \"Krishna Bhawan\" situate on Fraser Road in the Town of Patna. Originally it bore holding No. 239, but after the Patna Municipal Corporation Act, 1952, was passed it was given holding No. 264 in Circle No. 6 of the Patna Munici pal Corporation. On August 4, 1944, the Patna Municipality was superseded by the Government initially for a period of three years but the said period was extended from time to time till the Patna Municipal Corporation Act, 1952, came into force.\n\nOn March 29, 1946, the Government issued a Notification directing that S. N. Sarkar, Assistant Special Officer of the Patna City Municipality, shall also exercise and perform the powers and duties which might be exercised and performec! by the Commissioners under s. 107, among other sections, of the Act. On November 21, 1949, the Government of Bihar issued another Notification directing that each of the three officers mentioned therein shall exercise and perform the powers and duties conferred and imposed on a Committee constituted under s. 117 of the Act. One of the said officers was the said S. N. Sarkar, who was also appointed under the earlier Notification dated March 29, 1946, to perform the duties and exer\n\ncise the powers of the Commissioners .\n\nDuring the periodical revisional assessment of the year 1950 in regard to the said premises, the valuation thereof was fixed at Rs. 1,800/· and its quarterly municipal taxes at Rs. 146-4-0; but as some additions were made to the said premises, on May 10, 1951, the valuation of the said premises was raised to Rs. 2,400/· and its quarterly municipal taxes were fixed at Rs. 195/-. On\n\nNovember 17, 1951, S. N. Sarkar, the Assistant Special Officer of the Municipality, issued a notice to the owner of the premises informing her that the assessment of her premises was proposed to be fixed as follows : House-tax Rs. 262-8-0, Latrine-tax\n\nRs. 210/· and water-tax Rs. 210/· per qarter under s. 107 of the Act.\n\nOn December 20, 1952, the appellant filed a petition against the proposed enhancement of taxes before the said Assistant Special\n\noa SUPU)O COWT UPOl.TI\n\n(1966)3 S.C.R.\n\nOfficer, but he rejected the petition. Thereafter, the asseasmcnt list was amended on January 10, 1952, enhancing the valuation of the holding in question to Rs. 8,400/- and the quarterly munici-. pal taxes to Rs. 682-8-0. Aggrieved by the said order, the appellant filed Title Suit No. 60 of 1952 in the Court of the Third Munsif at Patna for a declaration that the alteration made by the Assistant Special Officer in the assessment list was invalid and without jurisdiction and that the Municipality was not entitled to realise the enhanced assessment. She also asked for a permanent injunction restraining the Municipality from realising the said enhanced tax from her. To that suit the Patm1 Municipality was made the 1st defendant and the Administrator of Patna, the 2nd defendant.\n\nThe learned M unsif held that the order passed by the Assistant Special Officer was valid and dismissed the suit with costs. On appeal, the learned Subordinate Judge, Patna, held that the Assistant Special Officer had no jurisdiction to proceed under s. 107(c) of the Act, as there was no fraud, misrepresentation or mistake when the periodical assessment was made and on that ground, he allowed the appeal and decreed the suit. Thereupon, the respondents preferred a second appeal to the High Court of Patna.\n\nA Division Bench of that Court held that after the supersession of the Municipality no committee could be constituted under s. 117 of the Act and that, therefore, the Special Officer, in the absence of any specific machinery to deal with such an application, had perfect jurisdiction to Jay out his own machinery to dispose of the same. After holding that the Assistant Special Officer had jurisdiction to dispose of the application for review, the High Court held that it had not been established by the assessee that there was no mistake in the earlier assessment. In the result, the appeal was allowed, the judgment and decree of the learned Subordinate Judge were set aside and those of the trial Court were restored. The assessee has preferred the present appeal by special leave against the judgment and decree of the High Court.\n\nMr. Ramanugrah, learned counsel for the appellant, argued that the High Court on a wrong construction of the relevant provisions of the Act held that s. ll 7(i) of the Act had become unworkable and that no committee thereunder could be constituted after the supersession of the Municipality. He further contended that the High Court had thrown the burden of proof wrongly on the appellant but it should have held that it was for the Municipality to establish that there was a mistake, fraud or misrepresentation in making the periodical revisional assessment and that, as there was no material placed by the Municipality before the C<iurt, it should have held that the condition precedent for reopening tlie earlier assessment had not been fulfilled.\n\nMr. S. P. Varma, learned counsel for the respondents, in addition to the contentions accepted by the High Court, souglit to take\n\n• •\n\nH •\n\nSHYAM KISHO!ll v. MUNIC. CORP. (Subba Ran, I.) 469\"\n\na preliminary objection that the suit was not maintainable. & this question was not raised in any ©f the Courts below, we did_ not permit him to do so.\n\nThe first contention turns upon the construction of the relevantprovisions of the Act and the Notifications issued by the Govern-. ment thereunder. It will be convenient at the outset to gather the - relevant provisions at one place.\n\nSection 386. (!) When an order of supersession has. beenpassed under the last preceding section, the following consequences _ shall ensue :-\n\n(a) all the Commissioners shall, as from the date of the order, vacate their offices as such Commissioners;\n\n(b) all the powers and duties which may, under the provisions of this Act, be exercised and performed by the Commissioners, whether at a meeting or otherwise, shall, during the period of supersession, be exercised and performed by such person or persons as the State Government may direct;\n\n\" The relevant part of the Notification dated March 29, 1946-. reads : > ••\n\n- t\n\nin exe; i;~ -f th; p~~~;~ -~~~~~;~; i by. ~I~~~. (b). f ~b:~~ti~~ (I) of section 386 of the said Act, the Governor of Bihar is E pleased to direct that Babu S. N. Sarkar, Assistant Special> Officer of the Patna City Municipality, shall also exercise and perform the powers and duties which may be exercised and performed by the Commissioners under the provisions of sections 102, 105, 107, 111, 116, 122, 124, 125, 126, .......... \"._ The relevant part of the Notification dated November 21 F 1949, reads : '\n\n.. the G~~~;~~; -f.Blh~;· is' 'pi~sd i~· di~ci' tht e~h -f th~.\n\nfollowin~ officers shall execise and perform all the powers. and duties, conferred and imposed on a Committee constituted under sections 117 and I I 8 of the said Act for the parpose of hearing and determining applications for review relating to assessment presented by the tax-payers. of the Patna City Municipality, namely :-\n\n1. Mr. Bhubneshwar Pd., Special Officer I/C Patna City Municipalty. '\n\n2. Mr. S. N. Sarkar, Assistant Special Officer I/C of the Patna City Municipality. '\n\n3. Mr. Parmeshwar Dayal, Retired Deputy Magist~ rate\".\n\n'\\ ,\n\nSllYAM KISHORE v. MUNIC. CORP. (Subba Rao,!.) 47 l\n\nfunction as members of the Committee or to nominate or elect two other tax-payers to that Committee within the meaning of s. 117(1) of the Act and that, therefore, the Government validly appointed the Assistant Special Officer to exercise the powers and perform the functions of the Committee under the said section.\n\nIf this construction be accepted all the sections whereunder certain powers were conferred and certain duties were imposed on the Commissioners would cease to be operative after the order of supersession. Only to avoid this contingency s. 386{l){b) of the Act in express terms says that all the powers and duties which may under the provisions of the Act be exercised and performed by the Commissioners, whether at a meeting or otherwise, shall be exercised and performed by such person or persons as the State Government may direct. The effect of that clause is that all the powers and duties of the Commissioners conferred and imposed on them under the various sections of the Act, whether to act in a body or in committees or individually, would be exercised by such person or persons as the State Government might direct thereunder. If that be the interpretation of s. 386( 1 ), the person\n\nor persons appointed by the State Government thereunder would take the place of the Commissioners in the various sections of the Act. So too, in section 117(1) of the Act, which would run thus:\n\n\"Every application presented under the last preceding section relating to assessment made under ....••.... s. I 17 .......... shal be heard and determined by a Committee consisting of the person or persons appointed by the Government and two. tax-payers of the Municipality nominated by the said person or persons and one servant of the Government not below the rank of a Deputy Magistrate nominated by the District Magistrate in this behalf, provided that no person\n\nor persons nominated or tax-payer shall be a member of the Committee appointed to hear applications from the ward for which he was elected and that three members shall form the quorum.\" If that be the effect of s. 386 on s. 117, the Committee under s. 117 could have been constituted with one or more of the three persons nominated by the Government under s. 386(1)(b) of the Act and two tax-payers nominated by them and a Deputy Magistrate nominated by the Government. This construction will give full effect to s. 117 of the Act, whereas the construction suggested by the learned counsel for the respondents and accepted by the High Court would make it unworkable. It is a well-known rule of construction that a court must construe a section, unless it is imp')S sible to do so, to make it workable rather than to make it unworkable. In the words of Lord Bramwell, the words of a statute never should in interpretation be added to or substracted from without almost a necessity. ' MlOSup.CI/66-17\n\nSHYAM KISHORE v. MUNIC. CORP. (Subba Rao, J.) 473\n\nA the suit under Order XI of the Code of Civil Procedure for the discovery of the relevant records of the three assessments and though the learned Munsif made an order directing the Municipality to do so, it failed to produce them. In the circumstances we must hold that the Municipality had not established the precondition for the re-assessment, namely, that the original periodi- 8 cal revisional assessment was vitiated by fraud, misrepresentation or mistake.\n\nIn the result, the appeal is allowed, the decree of the High Court is set aside and the suit is decreed with costs throughout.\n\nAppeal allowed.", "total_entities": 64, "entities": [{"text": "SHYAM KISHORI DEVI", "label": "PETITIONER", "start_char": 5, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "SHYAM KISHORI DEVI", "offset_not_found": false}}, {"text": "PATNA MUNICIPAL CORPORATION & ANR", "label": "RESPONDENT", "start_char": 25, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "PATNA MUNICIPAL CORPORATION & ANR", "offset_not_found": false}}, {"text": "February 4. 1966", "label": "DATE", "start_char": 61, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "February 4."}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 80, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 94, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 114, "end_char": 133, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Jr and Orissa Municipal Act, 1922", "label": "STATUTE", "start_char": 140, "end_char": 173, "source": "regex", "metadata": {}}, {"text": "Bihar and Orissa Municipal Act, 1922", "label": "STATUTE", "start_char": 673, "end_char": 709, "source": "regex", "metadata": {}}, {"text": "s. 117", "label": "PROVISION", "start_char": 717, "end_char": 723, "source": "regex", "metadata": {"linked_statute_text": "the Bihar and Orissa Municipal Act, 1922", "statute": "the Bihar and Orissa Municipal Act, 1922"}}, {"text": "s. 117", "label": "PROVISION", "start_char": 1192, "end_char": 1198, "source": "regex", "metadata": {"linked_statute_text": "the Bihar and Orissa Municipal Act, 1922", "statute": "the Bihar and Orissa Municipal Act, 1922"}}, {"text": "s. 107(l)(c)", "label": "PROVISION", "start_char": 1350, "end_char": 1362, "source": "regex", "metadata": {"linked_statute_text": "the Bihar and Orissa Municipal Act, 1922", "statute": "the Bihar and Orissa Municipal Act, 1922"}}, {"text": "Slate Government", "label": "ORG", "start_char": 2152, "end_char": 2168, "source": "ner", "metadata": {"in_sentence": "The effect of this clause is that all the powers and duties of the Commissioners conferred and imposed on them under the vario111 sections of the Act whether act:ng in oommittees or individually would be exercised by such person or per.tons as the Slate Government may direct."}}, {"text": "s. 117", "label": "PROVISION", "start_char": 2206, "end_char": 2212, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 386( I)", "label": "PROVISION", "start_char": 2315, "end_char": 2325, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 117(1)", "label": "PROVISION", "start_char": 2619, "end_char": 2628, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 117", "label": "PROVISION", "start_char": 2751, "end_char": 2757, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 107(1 )(c)", "label": "PROVISION", "start_char": 2906, "end_char": 2919, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramanugrah", "label": "LAWYER", "start_char": 3442, "end_char": 3452, "source": "ner", "metadata": {"in_sentence": "Ramanugrah and Mohan Behari Lal, for the appellant.", "canonical_name": "Ramanugrah"}}, {"text": "Mohan Behari Lal", "label": "LAWYER", "start_char": 3457, "end_char": 3473, "source": "ner", "metadata": {"in_sentence": "Ramanugrah and Mohan Behari Lal, for the appellant."}}, {"text": "S. P. Varma", "label": "LAWYER", "start_char": 3495, "end_char": 3506, "source": "ner", "metadata": {"in_sentence": "S. P. Varma, for the respondents.", "canonical_name": "S. P. Varma"}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 3574, "end_char": 3583, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSobba Rao."}}, {"text": "s. 117", "label": "PROVISION", "start_char": 3678, "end_char": 3684, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar and Orissa Municipal Act, 1922", "label": "STATUTE", "start_char": 3692, "end_char": 3728, "source": "regex", "metadata": {}}, {"text": "Shrimati Shyam Kishori Devi", "label": "OTHER_PERSON", "start_char": 3784, "end_char": 3811, "source": "ner", "metadata": {"in_sentence": "Shrimati Shyam Kishori Devi, the appellant, is the owner of premises known as \"Krishna Bhawan\" situate on Fraser Road in the Town of Patna."}}, {"text": "Patna", "label": "GPE", "start_char": 3917, "end_char": 3922, "source": "ner", "metadata": {"in_sentence": "Shrimati Shyam Kishori Devi, the appellant, is the owner of premises known as \"Krishna Bhawan\" situate on Fraser Road in the Town of Patna."}}, {"text": "Patna Municipal Corporation Act, 1952", "label": "STATUTE", "start_char": 3974, "end_char": 4011, "source": "regex", "metadata": {}}, {"text": "Patna Munici pal Corporation", "label": "ORG", "start_char": 4076, "end_char": 4104, "source": "ner", "metadata": {"in_sentence": "6 of the Patna Munici pal Corporation."}}, {"text": "August 4, 1944", "label": "DATE", "start_char": 4109, "end_char": 4123, "source": "ner", "metadata": {"in_sentence": "On August 4, 1944, the Patna Municipality was superseded by the Government initially for a period of three years but the said period was extended from time to time till the Patna Municipal Corporation Act, 1952, came into force."}}, {"text": "Patna Municipality", "label": "GPE", "start_char": 4129, "end_char": 4147, "source": "ner", "metadata": {"in_sentence": "On August 4, 1944, the Patna Municipality was superseded by the Government initially for a period of three years but the said period was extended from time to time till the Patna Municipal Corporation Act, 1952, came into force."}}, {"text": "March 29, 1946", "label": "DATE", "start_char": 4339, "end_char": 4353, "source": "ner", "metadata": {"in_sentence": "On March 29, 1946, the Government issued a Notification directing that S. N. Sarkar, Assistant Special Officer of the Patna City Municipality, shall also exercise and perform the powers and duties which might be exercised and performec!"}}, {"text": "S. N. Sarkar", "label": "OTHER_PERSON", "start_char": 4407, "end_char": 4419, "source": "ner", "metadata": {"in_sentence": "On March 29, 1946, the Government issued a Notification directing that S. N. Sarkar, Assistant Special Officer of the Patna City Municipality, shall also exercise and perform the powers and duties which might be exercised and performec!"}}, {"text": "Patna City Municipality", "label": "GPE", "start_char": 4454, "end_char": 4477, "source": "ner", "metadata": {"in_sentence": "On March 29, 1946, the Government issued a Notification directing that S. N. Sarkar, Assistant Special Officer of the Patna City Municipality, shall also exercise and perform the powers and duties which might be exercised and performec!"}}, {"text": "s. 107", "label": "PROVISION", "start_char": 4600, "end_char": 4606, "source": "regex", "metadata": {"linked_statute_text": "the Patna Municipal Corporation Act, 1952", "statute": "the Patna Municipal Corporation Act, 1952"}}, {"text": "November 21, 1949", "label": "DATE", "start_char": 4645, "end_char": 4662, "source": "ner", "metadata": {"in_sentence": "On November 21, 1949, the Government of Bihar issued another Notification directing that each of the three officers mentioned therein shall exercise and perform the powers and duties conferred and imposed on a Committee constituted under s. 117 of the Act."}}, {"text": "Government of Bihar", "label": "ORG", "start_char": 4668, "end_char": 4687, "source": "ner", "metadata": {"in_sentence": "On November 21, 1949, the Government of Bihar issued another Notification directing that each of the three officers mentioned therein shall exercise and perform the powers and duties conferred and imposed on a Committee constituted under s. 117 of the Act."}}, {"text": "s. 117", "label": "PROVISION", "start_char": 4880, "end_char": 4886, "source": "regex", "metadata": {"linked_statute_text": "the Patna Municipal Corporation Act, 1952", "statute": "the Patna Municipal Corporation Act, 1952"}}, {"text": "May 10, 1951", "label": "DATE", "start_char": 5346, "end_char": 5358, "source": "ner", "metadata": {"in_sentence": "146-4-0; but as some additions were made to the said premises, on May 10, 1951, the valuation of the said premises was raised to Rs."}}, {"text": "November 17, 1951", "label": "DATE", "start_char": 5484, "end_char": 5501, "source": "ner", "metadata": {"in_sentence": "On\n\nNovember 17, 1951, S. N. Sarkar, the Assistant Special Officer of the Municipality, issued a notice to the owner of the premises informing her that the assessment of her premises was proposed to be fixed as follows : House-tax Rs."}}, {"text": "s. 107", "label": "PROVISION", "start_char": 5788, "end_char": 5794, "source": "regex", "metadata": {"statute": null}}, {"text": "January 10, 1952", "label": "DATE", "start_char": 6064, "end_char": 6080, "source": "ner", "metadata": {"in_sentence": "Thereafter, the asseasmcnt list was amended on January 10, 1952, enhancing the valuation of the holding in question to Rs."}}, {"text": "Court of the Third Munsif at Patna", "label": "COURT", "start_char": 6283, "end_char": 6317, "source": "ner", "metadata": {"in_sentence": "60 of 1952 in the Court of the Third Munsif at Patna for a declaration that the alteration made by the Assistant Special Officer in the assessment list was invalid and without jurisdiction and that the Municipality was not entitled to realise the enhanced assessment."}}, {"text": "s. 107(c)", "label": "PROVISION", "start_char": 7017, "end_char": 7026, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Patna", "label": "COURT", "start_char": 7255, "end_char": 7274, "source": "ner", "metadata": {"in_sentence": "Thereupon, the respondents preferred a second appeal to the High Court of Patna."}}, {"text": "s. 117", "label": "PROVISION", "start_char": 7401, "end_char": 7407, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramanugrah", "label": "LAWYER", "start_char": 8118, "end_char": 8128, "source": "ner", "metadata": {"in_sentence": "Mr. Ramanugrah, learned counsel for the appellant, argued that the High Court on a wrong construction of the relevant provisions of the Act held that s. ll 7(i) of the Act had become unworkable and that no committee thereunder could be constituted after the supersession of the Municipality.", "canonical_name": "Ramanugrah"}}, {"text": "S. P. Varma", "label": "LAWYER", "start_char": 8870, "end_char": 8881, "source": "ner", "metadata": {"in_sentence": "Mr. S. P. Varma, learned counsel for the respondents, in addition to the contentions accepted by the High Court, souglit to take\n\n• •\n\nH •\n\nSHYAM KISHO!ll v. MUNIC.", "canonical_name": "S. P. Varma"}}, {"text": "Section 386", "label": "PROVISION", "start_char": 9447, "end_char": 9458, "source": "regex", "metadata": {"statute": null}}, {"text": "section 386", "label": "PROVISION", "start_char": 10144, "end_char": 10155, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar", "label": "GPE", "start_char": 10189, "end_char": 10194, "source": "ner", "metadata": {"in_sentence": "f ~b:~~ti~~ (I) of section 386 of the said Act, the Governor of Bihar is E pleased to direct that Babu S. N. Sarkar, Assistant Special> Officer of the Patna City Municipality, shall also exercise and perform the powers and duties which may be exercised and performed by the Commissioners under the provisions of sections 102, 105, 107, 111, 116, 122, 124, 125, 126, .......... \"._"}}, {"text": "Babu S. N. Sarkar", "label": "OTHER_PERSON", "start_char": 10223, "end_char": 10240, "source": "ner", "metadata": {"in_sentence": "f ~b:~~ti~~ (I) of section 386 of the said Act, the Governor of Bihar is E pleased to direct that Babu S. N. Sarkar, Assistant Special> Officer of the Patna City Municipality, shall also exercise and perform the powers and duties which may be exercised and performed by the Commissioners under the provisions of sections 102, 105, 107, 111, 116, 122, 124, 125, 126, .......... \"._"}}, {"text": "sections 117", "label": "PROVISION", "start_char": 10774, "end_char": 10786, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhubneshwar Pd", "label": "RESPONDENT", "start_char": 10982, "end_char": 10996, "source": "ner", "metadata": {"in_sentence": "Mr. Bhubneshwar Pd.,"}}, {"text": "Parmeshwar Dayal", "label": "RESPONDENT", "start_char": 11139, "end_char": 11155, "source": "ner", "metadata": {"in_sentence": "Mr. Parmeshwar Dayal, Retired Deputy Magist~ rate\"."}}, {"text": "s. 117(1)", "label": "PROVISION", "start_char": 11368, "end_char": 11377, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 386", "label": "PROVISION", "start_char": 11800, "end_char": 11806, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 386( 1 )", "label": "PROVISION", "start_char": 12434, "end_char": 12445, "source": "regex", "metadata": {"statute": null}}, {"text": "section 117(1)", "label": "PROVISION", "start_char": 12604, "end_char": 12618, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 386", "label": "PROVISION", "start_char": 13333, "end_char": 13339, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 117", "label": "PROVISION", "start_char": 13343, "end_char": 13349, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 117", "label": "PROVISION", "start_char": 13371, "end_char": 13377, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 386(1)(b)", "label": "PROVISION", "start_char": 13478, "end_char": 13490, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 117", "label": "PROVISION", "start_char": 13635, "end_char": 13641, "source": "regex", "metadata": {"statute": null}}, {"text": "Bramwell", "label": "OTHER_PERSON", "start_char": 13979, "end_char": 13987, "source": "ner", "metadata": {"in_sentence": "In the words of Lord Bramwell, the words of a statute never should in interpretation be added to or substracted from without almost a necessity. '"}}, {"text": "Order XI of the Code", "label": "STATUTE", "start_char": 14190, "end_char": 14210, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1966_3_474_478_EN", "year": 1966, "text": "S. RAMA IYER\n\nI'.\n\nSU'.'IDARASA PONNAPOONDAR\n\nFebruary 4, 1966\n\n[K. SUDBA RAO, M. HIDAYATULLAH AND\n\nR.S. BACllAWAT. JJ.)\n\nMadras Cu/rfraring Tenants Pror.ctiori Act, (25 of 1955), s. 6li and Code of Ciril Procedure (Act 5 of 1908), s. 115-Deci>io11 by Reven11e Court\n\nthat petitioner wa\\· not a cultjvating tenant-If revisable by Jliglr Court.\n\nThe respondent. claiming to he the cultivating tenant of the appellant. filed an application before the Revenue Court under \"\"· 3 ( 3) of the C Madra. Culti\\'&ting Tenants Protection Act, 1955, praying for a declara tion that the amount deposited by him in the Court represented the correct amount of rent due from him to the appellant. The appellant denied that the respondent was his cultivating tenant. rhe Revenue Court held that the respondent was not the appellant's cultivating tenant. The High Court in a revision petition under s. 6B of the Act read with s. 115 of th<> Civil Procedure Code, held that the respondent was a cultivating tenant of the appellant and that the amount deposited represented the correct amount D due from him to the appellant.\n\nIn appeal to this Court the appellant contended that the High Court bad no jurisdiction, in revision. to set aside the finding of the Revenue Court rh:H the re•pon<lcnt \"V>a'i not the appellant\\ cultivating tenant.\n\nHELD : The Revenue Court under the Act can exercise its juri1die lion only if a relationship of landlord and cultivating tenant exists between the contending partk.-s.\n\nIf its jurisdiction is challenged it must enqu:re into the existence of the preliminary fact and decide if it has jurisdiction.\n\nU by an erroneous decision on a question of fact or law touching its lurisdiction a subordinate court assumes a jurisdiction not vested in it by Jaw or fai1s to exercise a juridiction so vested, its decision is not final and is subject to the revisional jurisdiction of the High Court. Therefore, the High Court had power to enquire into the correctnss of the Revenue Court's decisioM and on finding that the tenancy existed and that the Revenue Court had erroneously refused to exercise the jurisdiction vested ill it bys. 3(3), the High Court could set aside that decision under s. 115(b) of the Civil Procedure Code read withs. 6B of the Act. (447 H-\n\n478 B; 478 D] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 797 of 1963.\n\nAppeal by special leave from the judgment and order dated March 27, 1959 of the Madras High Court in C.R.P. No. 1282 of 1958.\n\nR. Ganaparhy Iyer. for the appellants.\n\nR. Thiagarajan, for the respondent.\n\nThe Judgment of the Court was delivered by B1cb1w1t, J. On April 24, 1958, the respondent claiming to be the cultivating tenant of the appellant in respect of certain lands in Manapparavaivattam, Nannilam Taluk deposited Rs. 462/-\n\n. .\n\naSrent for 1367 fasli in the Revenue Court (the Court of the Revenue Divisional Officer), Tanjore under s. 3(3) of the Madras Cultivating Tenants Protection Act, 1955 (Madras Act No. 25 of 1955) and filed an application before the Court praying for a declaration that the amount deposited represented the correct amount of rent due from him. The appellant denied that the respondent was his cultivating tenant. On July 31, 1958, the Revenue Court, Tanjore held that the respondent was not a cultivating tenant of the appellant and could not claim the benefit of s. 3(3) and dismissed the application. The respondent filed a petition in revision before the Madras High Court under s. 6-B of the Act read with s. 115 of th~ Code of Civil Procedure. The High Court came to the conclusion that the respondent was a cultivating tenant of the appellant and by its order dated March 27, 1959, allowed the revision petition and declared that the amount deposited by the respondent represented the correct amount due from him to the appellant. The appel' !ant now appeals to this Court by special leave.\n\nCounsel for the appellant submitted that the finding of the Revenue Court that the respondent was not a cultivating tenant was a finding of fact and the High Court had no jurisdiction to set it aside on revision. On the other hand, counsel for the respondent submitted that the finding was in respect of a collateral fact upon the existence of which the jurisdiction of the Revenue Court under s. 3(3) depended and the High Court had ample power to revise the finding under s. 6-B of the Act. ·\n\nSection 6-B is in these terms :\n\n\"The Revenue Divisional Officer shall be deemed to be a Court subordinate to the High Court for the purposes of section 115 of the Code of Civil Procedure, 1908 (Central) (Act 5 of 1908), and his orders shall be liable to revision by the High Court nnder the provisions of that section.\"\n\nSection 6-B empowers the High Court to revise the decision of the Revenue Divisional Officer under s. 115 of the Code of Civil Procedure, and for the purposes of the section, the Officer is deemed to be a subordinate Court. Section 115 is in these terms :\n\n\"The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears- ·\n\n(a) to have exercised a jurisdiction not vested in it by Jaw, or\n\n(b) to have failed to exercise a jurisdiction so vested, or\n\n476 SUPREME COtlllT llEPORTS\n\n(1966] 3 S.C.R.\n\n(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.\n\nIn the present case, no question of revision under sub-s (c) of s. 115 arises, and we are concerned only with the power of revision under sub-ss. (a) and (b) of s. 115. Sub-section (a) empowers the High Court to correct an erroneous assumption of jurisdiction; sub-s.(b) empowers it to correct an erroneous refusal of jurisdiction.\n\nThe decision of the subordinate Court on all questions of law and fact not touching its jurisdiction is final and however erroneous such a decision may be, it is not revisable under sub-ss. (a) and (b) of s. 115. On the other hand, if by an erroneous decision on a question of fact or law touching its jurisdiction, e.g., on a preliminary fact upon the existence of which its jurisdiction depends, the subordinate Court assumes a jurisdiction not vested in it by law or fails to exercise a jurisdiction so vested, its decision is not fmal, and is subject to review by the High Court in its revisional jurisdiction under sub-ss. (a) and (b) of s. 1I5. The question is, on whicb side of the line the present case lies, and whether the decision of the Revenue Divisional Officer that the respondent is not a cultivating tenant of the appellant is subject to review by the High Court in its revisional jurisdiction. The Revenue Divisional Officer is an inferior Court of limited jurisdiction functioning under the Madras Cultivating Tenants Protection Act, 1955. To ascertain the limit and extent of its jurisdiction, we must examine the provisions of the Act.\n\nThe Act came into force on September 27, 1955 and was amended from time to time.\n\nOriginally, the Act was temporary, recently it has been made permanent. The Act was passed for the protection of certain cultivating tenants from eviction. Section 2 defines, inter alia, 'cultivating tenant' and 'landlord'. 'Cultivating tenant' is a person who carries on personal cultivation on the land under a tenancy agreement, express or implied, and includes any person who continues in possession of the land after determination of the tenancy agreement and the heirs of such person. 'Landlord' means the person entitled to evict the cultivating tenant from his holding or a part of it. Section 3( 1) protects the cultivating tenant from eviction at the instance of the landlord whether in execution of a decree or order of Court or otherwise. Section 3(2) sets out the grounds of eviction, and if one of these grounds is made out, the protection from eviction given bys. 3(1) is taken away. Section 3(3) enables the cultivating tenant to deposit the rent in Cou~.\n\nSection 3(3)(b) requires the Court to \"cause notice of the dep?s1t to be issued to the landlord and determine, after a summary enquiry, whether the amount deposited represents the correct amount of\n\n~· ,\n\n• \\\n\nF '\n\nl H\n\nrent due from the cultivating tenant\". The expression \"Court\" in s. 3(3) means the Court which passed the decree or order for\n\neviction, or where there is no such decree or order, the Revenue Divisional Officer. The Act also vests jurisdiction in the Revenue Divisional Officer to entertain and decide an application by the landlord for eviction of a cultivating tenant-s. 3(4), an application by cultivating tenants evicted before and after the commencement of the Act for restoration ofpossession-ss. 4(1) and 4(5), an application by the landlord for the resumption of land for personal cliltivation-s. 4-A(l ), an application by the cultivating tenant for restoration of possession from a landlord so resuming possessions. 4-A(2), applications for resumption of possession by the landlord from his cultivating tenant and by the cultivating tenant from his sub-tenant provided the applicant was a member of the Armed Forces-ss. 4-AA(2) and 4-AA(3). On receipt of any application under ss. 3(4), 4(1), 4(5), 4-A(l),\n\n4-A(2),\n\n4-AA(2) and 4-AA(3), the Revenue Divisional Officer is required to hold a summary enquiry into the matter and pass necessary orders after giving a reasonable opportunity to the landlord and the tenant to make their representations. Section 4-B empowers the Revenue Divisional Officer in the case of any tenancy to impose a penalty on the landlord or the cultivating tenant for his refusal to sign or failure to lodge a lease deed in accordance with its provisions. Section 6 provides that no Civil Court shall\" except to the extent specified in s. 3(3), have jurisdiction in respect of any matter which the Revenue Divisional Officer is empowered by or under the Act to determine, or shall grant an injunction in respect of any action taken or to be taken under such power. Section 6-A requires the Civil Court to transfer to the Revenue Divisional Officer any suit for possession or injunction in relation to any land pending before it, if it is satisfied that the defendant is a cultivating tenant. We have already noticed s. 6-B, which confers powers of revision on the High Court. Section T gives the State Government the power to make rules.\n\nThe Act gives generous protection to cultivating tenants from eviction, and severely restricts the right of landlords to resume possession of their land from their cultivating tenants. In case of disputes between the landlord and the cultivating tenant, the Revenue Divisional Officer is authorised to entertain and decide applications by the landlord for eviction and resumption of possession and by the cultivating tenant for restoration of possession and tio impose penalties on the landlord or the tenant for infraction of s. 4-B. To attract the jurisdiction of the Revenue Divisional Officer, there must be a dispute between a landlord and cultivating tenant. The existence of the relation of landlord and cultivating tenant between the contending parties is the essential condition for the assumption of jurisdiction by. the Revenue Divisional Officer\n\n478 SUPRl!ME COUllT l.BPOl.TS\n\n(1966] 3 S.C.R.\n\nin all proceedings under the Act. The Tribunal can exercise it.\n\nA jurisdiction under the Act only if such relationship exists. If the jurisdiction of the Tribunal is challenged, it must enquire into the existence of the preliminary fact and decide if it has jurisdiction. But its decision on the existence of this preliminary fact is not final; such a decision is subject to review by the High Court in its revisional jurisdiction under s. 6-B. The enquiry by the B Tribunal is summary, there is no provision for appeal from its decision, and the legislature could not have intended that its decision on this preliminary fact involving a question of title would be final and not subject to the overriding powers of revision by the High Court.\n\nIn the present case, the Tribunal found that the respondent was not the cultivating tenant of the appellant, and on such finding declined to exercise the jurisdiction vested in it by s. 3(3) to determine the correct amount of rent due by the respondent to the appellant. The High Court had power to enquire into the correctness of this decision, and on tinding that the tenancy existed and the Tribunal had erroneously refused to exercise the jurisdiction vested in it bys. 3(3), the High Court could set aside the decision under sub-s. (b) of s. 115 of the Code read with s. 6-B of the Act.\n\nOn a review of the entire oral and documentary evidence, the High Court found that the respondent was the cultivating tenant of the appellant. It is not shown that this finding is erroneous. We see no reason for interfering with the decision of the High Court.\n\nThe appeal is dismissed. There will be no order as to costs.\n\nAppeal dismissed. ·\n\n• I", "total_entities": 60, "entities": [{"text": "S. RAMA IYER", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "S. RAMA IYER", "offset_not_found": false}}, {"text": "SU'.'IDARASA PONNAPOONDAR", "label": "RESPONDENT", "start_char": 19, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "SUNDARASA PONNAPOONDAR", "offset_not_found": false}}, {"text": "February 4, 1966", "label": "DATE", "start_char": 46, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "'IDARASA PONNAPOONDAR\n\nFebruary 4, 1966\n\n[K. SUDBA RAO, M. HIDAYATULLAH AND\n\nR.S. BACllAWAT."}}, {"text": "K. SUDBA RAO", "label": "JUDGE", "start_char": 65, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 79, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "Madras", "label": "GPE", "start_char": 122, "end_char": 128, "source": "ner", "metadata": {"in_sentence": "Madras Cu/rfraring Tenants Pror.ctiori Act, (25 of 1955), s. 6li and Code of Ciril Procedure (Act 5 of 1908), s. 115-Deci>io11 by Reven11e Court\n\nthat petitioner wa\\· not a cultjvating tenant-If revisable by Jliglr Court."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 180, "end_char": 184, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 115", "label": "PROVISION", "start_char": 232, "end_char": 238, "source": "regex", "metadata": {"statute": null}}, {"text": "Tenants Protection Act, 1955", "label": "STATUTE", "start_char": 509, "end_char": 537, "source": "regex", "metadata": {}}, {"text": "s. 6B", "label": "PROVISION", "start_char": 882, "end_char": 887, "source": "regex", "metadata": {"linked_statute_text": "Tenants Protection Act, 1955", "statute": "Tenants Protection Act, 1955"}}, {"text": "s. 115", "label": "PROVISION", "start_char": 909, "end_char": 915, "source": "regex", "metadata": {"linked_statute_text": "Tenants Protection Act, 1955", "statute": "Tenants Protection Act, 1955"}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 924, "end_char": 944, "source": "regex", "metadata": {}}, {"text": "s. 115(b)", "label": "PROVISION", "start_char": 2203, "end_char": 2212, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 2433, "end_char": 2450, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated March 27, 1959 of the Madras High Court in C.R.P. No."}}, {"text": "R. Thiagarajan", "label": "LAWYER", "start_char": 2520, "end_char": 2534, "source": "ner", "metadata": {"in_sentence": "R. Thiagarajan, for the respondent."}}, {"text": "s. 3(3)", "label": "PROVISION", "start_char": 2898, "end_char": 2905, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Cultivating Tenants Protection Act, 1955", "label": "STATUTE", "start_char": 2913, "end_char": 2960, "source": "regex", "metadata": {}}, {"text": "July 31, 1958", "label": "DATE", "start_char": 3208, "end_char": 3221, "source": "ner", "metadata": {"in_sentence": "On July 31, 1958, the Revenue Court, Tanjore held that the respondent was not a cultivating tenant of the appellant and could not claim the benefit of s. 3(3) and dismissed the application."}}, {"text": "Revenue Court, Tanjore", "label": "COURT", "start_char": 3227, "end_char": 3249, "source": "ner", "metadata": {"in_sentence": "On July 31, 1958, the Revenue Court, Tanjore held that the respondent was not a cultivating tenant of the appellant and could not claim the benefit of s. 3(3) and dismissed the application."}}, {"text": "s. 3(3)", "label": "PROVISION", "start_char": 3356, "end_char": 3363, "source": "regex", "metadata": {"linked_statute_text": "the Madras Cultivating Tenants Protection Act, 1955", "statute": "the Madras Cultivating Tenants Protection Act, 1955"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 3474, "end_char": 3478, "source": "regex", "metadata": {"linked_statute_text": "the Madras Cultivating Tenants Protection Act, 1955", "statute": "the Madras Cultivating Tenants Protection Act, 1955"}}, {"text": "s. 115", "label": "PROVISION", "start_char": 3502, "end_char": 3508, "source": "regex", "metadata": {"linked_statute_text": "the Madras Cultivating Tenants Protection Act, 1955", "statute": "the Madras Cultivating Tenants Protection Act, 1955"}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 3516, "end_char": 3539, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "March 27, 1959", "label": "DATE", "start_char": 3664, "end_char": 3678, "source": "ner", "metadata": {"in_sentence": "The High Court came to the conclusion that the respondent was a cultivating tenant of the appellant and by its order dated March 27, 1959, allowed the revision petition and declared that the amount deposited by the respondent represented the correct amount due from him to the appellant."}}, {"text": "s. 3(3)", "label": "PROVISION", "start_char": 4284, "end_char": 4291, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 4364, "end_char": 4368, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 4386, "end_char": 4395, "source": "regex", "metadata": {"statute": null}}, {"text": "section 115", "label": "PROVISION", "start_char": 4531, "end_char": 4542, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 4550, "end_char": 4579, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 6", "label": "PROVISION", "start_char": 4708, "end_char": 4717, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "s. 115", "label": "PROVISION", "start_char": 4807, "end_char": 4813, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 4817, "end_char": 4844, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 115", "label": "PROVISION", "start_char": 4932, "end_char": 4943, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "s. 115", "label": "PROVISION", "start_char": 5562, "end_char": 5568, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "s. 115", "label": "PROVISION", "start_char": 5659, "end_char": 5665, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 115", "label": "PROVISION", "start_char": 6036, "end_char": 6042, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1I", "label": "PROVISION", "start_char": 6474, "end_char": 6479, "source": "regex", "metadata": {"statute": null}}, {"text": "September 27, 1955", "label": "DATE", "start_char": 7016, "end_char": 7034, "source": "ner", "metadata": {"in_sentence": "The Act came into force on September 27, 1955 and was amended from time to time."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 7227, "end_char": 7236, "source": "regex", "metadata": {"linked_statute_text": "The Revenue Divisional Officer is an inferior Court of limited jurisdiction functioning under the Madras Cultivating Tenants Protection Act, 1955", "statute": "The Revenue Divisional Officer is an inferior Court of limited jurisdiction functioning under the Madras Cultivating Tenants Protection Act, 1955"}}, {"text": "Section 3( 1)", "label": "PROVISION", "start_char": 7665, "end_char": 7678, "source": "regex", "metadata": {"linked_statute_text": "The Revenue Divisional Officer is an inferior Court of limited jurisdiction functioning under the Madras Cultivating Tenants Protection Act, 1955", "statute": "The Revenue Divisional Officer is an inferior Court of limited jurisdiction functioning under the Madras Cultivating Tenants Protection Act, 1955"}}, {"text": "Section 3(2)", "label": "PROVISION", "start_char": 7822, "end_char": 7834, "source": "regex", "metadata": {"linked_statute_text": "The Revenue Divisional Officer is an inferior Court of limited jurisdiction functioning under the Madras Cultivating Tenants Protection Act, 1955", "statute": "The Revenue Divisional Officer is an inferior Court of limited jurisdiction functioning under the Madras Cultivating Tenants Protection Act, 1955"}}, {"text": "Section 3(3)", "label": "PROVISION", "start_char": 7970, "end_char": 7982, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3(3)(b)", "label": "PROVISION", "start_char": 8044, "end_char": 8059, "source": "regex", "metadata": {"statute": null}}, {"text": "s1", "label": "PROVISION", "start_char": 8107, "end_char": 8109, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(3)", "label": "PROVISION", "start_char": 8329, "end_char": 8336, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 8634, "end_char": 8641, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 4(1) and 4(5)", "label": "PROVISION", "start_char": 8763, "end_char": 8780, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 8866, "end_char": 8870, 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"s. 4", "label": "PROVISION", "start_char": 10966, "end_char": 10970, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 11784, "end_char": 11788, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(3)", "label": "PROVISION", "start_char": 12274, "end_char": 12281, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 115", "label": "PROVISION", "start_char": 12635, "end_char": 12641, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 12664, "end_char": 12668, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_479_485_EN", "year": 1966, "text": "....\n\nI , '\n\n• {\n\nMAQBOOL ALAM KHAN\n\nMST. KHODAIJA & ORS.\n\nFebruary 4. 1966\n\n(K. SUBBA RAO, M. HIDAYATULLAH AND\n\nR.S. BACHAWAT, JJj.\n\nLis penden~Respondent's nan1e expunged from title suit by compro- 1nise decree in another suit-Whether respondent constructively bound by 'final decree in title suit. Mohamedan law-Essential requirenients of valid gift.\n\nThe Maharaja of Dumraon filed a rent suit against some of the cosharers in a tenure held under him of certain lands and at the 9ale in execution the tenure was purchased by one L. N, the widow of one of the original co-sharers instituted a title suit. (No. 127 of 1939) for .a declaration that he.r share in the tenure was not affected by the execution sale.\n\nDuring the pendency of this suit the Maharaja instituted a second rent suit against L and at the sale in execution of the decree the respondent purchased the tenure and obtained possession. The -respondent was also impleaded as a party in N's suit and a preliminary decree was passed.\n\nThereafter N died and the appellant was substituted as the plaintiff in place of N on the ground that before her death N had made an oral gift of her share to him. A final decree was then passed and the appellant obtained possession of the land dispossessing the respondent. Tho respondent then instituted title suit No. 126 of 1944 against the appellant 3.Jld others for a declaration that the decree passed in suit No. 127 of 1939 was not binding upon her. The case was disposed of by a compromise decree whereby the respondent's name was expunged from the category of eefendants in suit No. 127 though the decree was to stand in other respects.\n\nThe respondent then applied for restitution of the land under s. 144 ot the Code of Civil Procedure and obtained possession.\n\nThe appellant thereafter filed the present suit against the respondent and others for a declaration of his title. to the land and contended, inter alia, (i) that by the doctrine of Us pendens the respondent was constructively bound by the final decree in suit No. 127 of 1939 in the presence of her predecessor-in-title L; and\n\n(ii) the decree conclusively dedared his title to the land on the basis of the oral gift made to him by N.\n\nThe trial court decreed the appellant's suit but on appeal to the High Court the decree was set aside.\n\nOn appeal to this Court,\n\nHELD : The appellant had no title to the suit property and the High Court had rightly dismissed the suit.\n\nThe purpose of the compromise decree in suit No. 126 of 1944 was that the respondent's name should be expunged from the array of parti\"' in suit No. 1Z7 of 1939 so that she should not be bound by tho decree in that suit either actually or constructively.\n\nAn application for restitution under s. 144 C.P.C. is an application for execution of a decree and therefore the principle of res-judicata applies to such proceedings.\n\nAccordingly, in view of the restitution obtained by the respondent, she Wa5 not bound by the decree in suit No. 127 of 1939. [482\n\nG-H)\n\n•80 SUPJlEMB C.OUR T JlJIPOll TS\n\n(1966] 3 S.C.R.\n\nMahJ/ibhai v. Manlbhai (1965) 2 S.C.R. 436 applied.\n\nThe High Court bad rigblly hcJ.I that the appellant failed to prove the alleged oral ait't and furthermore, the gift was also in\\1l!id.\n\nThe three requirement. of a valid gift under Mohamedan Law are declaration, acceptance and delivery of possession.\n\nA gift of property in the possession of a Jessee or mortgagee or a trespasser is not established by mere declaration of the donor and acceptance by the donec. To validate B the gift there must also be delivery of possession, or failing such delivery. some overt act hy the donor to put it within the power of the donec to obtain possession.\n\nOn the facts N had done nothing after the alleged declaration to place it within the power of the appellant to obtnin possession. [483 G; 484 G; 485 BJ Case law referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 629 of 1963.\n\nAppeal from the judgment and decree dated April 3, 1961 of the Patna High Court in Appeal from Original Decree No. 327 of 1955.\n\nSarjoo Prasad, R. S. Sinha, and R. C. Prasad, for the appellant.\n\nS. C. Agarwal, R. K. GarK, D. P. Singh and M. K. Ramamurthi • for respondent No. I.\n\nK. R. Sinha, for respondents Nos. 16, 24 and 25.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. Shaik Ahmad Ali was the holder of a tenure recorded in Khewat No. 4, tau1i No. 3309, Mouza Babhnaul, comprising an area of 83 82 acres under the Maharaja of Dumraon.\n\nHe died in 1910 leaving as his\" heirs, his mother Waziran, his second wife Elahijan, three sons Amanat, Ashghar and Ashraf and two daughters born of F.lahijan, and two sons Hamid and Mahmud and four daughters horn of his first wife Nabiban. Though all the heirs of Shaik Ahmad Ali were cosharers of the tenure, the names of Hamid and Mahmud only were recorded as the tenureholders in the record of rights published in 1911.\n\nThe Maharaja of Dumraon instituted Rent Suit No. 13 of 1915 against Hamid and Mahmud only and obtained a decree for rent. The other cosharers of the tenure including Amanat were not parties to the suit. Amanat died in 1924.\n\nBefore and after 1924 there were several litigations concerning the rights of the cosharers in the tenure. Eventually, under a compromise, Najma the wife of Amanat got 2 annas 8 pies IO krant share in the tenure. Subsequently, the Maharaja of Dumraon put the decree in Rent Suit\n\nNo. 13 of 1915 into execution, and Latafat, son of Ashgar by his first wife Safidan, purchased the tenure at the execution sale.\n\nIn October 1928, Latafot obtained possession of the tenure through Court. Jn May 1939, Najma instituted Title Suit No. 127 of\n\n• \\\n\n1939 against Latafat, the Maharaja of Dumraon and others asking for a declaration that her share in the tenure was not affected by the sale and for partition and possession of her share and mesne profits. During the pendency of this suit, the Maharaja of Dumraon instituted Rent Suit No. 1077 of 1939 against Latafat, obtained a decree for rent and put the decree into execution. At the execution sale in November 1940, Khodaija, the second wife of Ashgar, purchased the tenure. Thereupon, Khodaija was impleaded as a party in Title Suit No. 127 of 1939. On July 9, 1942, a decree declaring the title of Najma to her share in the tenure and a preliminary decree for partition were passed in that suit. On August 9,.\n\n1942, Khodaija obtained delivery of possession of the tenure through Court on the basis of her purchase in November 1940. On February 26, 1943, Najma died. On April 10, 1943, the appellant filed a petition in Title Suit No. 127 of 1939 praying for substitution in . place of Najma on the ground that before her death Najma had made an oral gift of her share to him. On April 21, 1943, the Court passed an order substituting the appellant as plaintiff in the suit in place of Najma. On June 14, 1943, a final decree was, passed in the suit. The appellant was allotted 19·54 acres of land out of the tenure. On June 25, 1943, the appellant obtained possession of the land dispossessing Khodaija. Thereafter, Khodaija instituted Title Suit No. 126 of 1944 against the appellant and others for a declaration that the decree passed in Title Suit No. 127 of 1939 were fraudulently obtained and were not binding upon her.\n\nThe trial Court dismissed the suit, on appeal, the first appellate Court decreed the suit and a second appeal was disposed of by a compromise in these terms :\n\n\"1. That the name of the plaintiff No. I (that is Khodaija} from the category of defendants in Title Suit No. 127 of 1939 shall be expunged.\n\n2. That the decree (in Title Suit No. 127 of 1939) will stand in other respects .\n\n3. That the suit (that is, Title Suit No. 126 of 1944) wilt stand dismissed.\"\n\nIn 1948, Khodaija applied for restitution of the land under s. 144 of the Code of Civil Procedure. The Munsif allowed the application; on appeal, the first Appellate Court dismissed it; and on second appeal, the High Court passed an order on January 24,. 1949 declaring that Khodaija was entitled to restitution and remanded the case to the Munsif. On June 28, 1949, the Munsif directed restitution of 19 54 acres of land to Khodaija. On July I, 1949, Khodaija obtained possession of the land through Court.\n\nThereafter, the appellant instituted the present suit against Khodaija and others praying for a declaration of his title to the\n\nSUPREME COURT REPORTS\n\n[1966) 3 SC.R.\n\naforesaid land.\n\nHis case is that the suits instituted by the Maharaja -Of Dumraon were not rerit suits and the sales in execution of those decrees were not rent sales, inasmuch as all the sharers of the tenure were not impleaded as parties to those suits, the share of Najma in the tenure now represented by the suit land-was not affected by the sales, and by an oral gift she gave the land to the appellant.\n\nThe trial Court decreed the suit.\n\nOn first appeal, the High Court dismissed the suit. The appellant now appeals lo this Court by special leave.\n\nThe appellant rests his claim of title lo the land upon an alleged -0ral gift by Najma.\n\nKhodaija disputes the factum and validity of the gift. In rejoinder, the appellant contends that by the doctrine of /is pendens Khodaija is constructively bound by the final -decree passed in Title Suit No. 127 of 1939 in the presence of her predecessor-in-title, Latafat and that the decree conclusively declared his title to the land on the basis of the oral gift by Najma. Khodaija gives a twofold answer to this contention. She says that (I) by the decree in Title Suit No. 126 of 1944 she was held not to be a party to Title Suit No. 127 of 1939 and she is therefore not bound by the decree passed in that suit, and (2) by the order of the High Court dated January 24, 1949 and the final order of the Munsif dated June 28, 1949 passed in the proceedings for restitution under s. 144 of the Code of Civil Procedure it was finally declared that she was not bound by the decree in Title Suit No. 127 of 1939. These contentions of Khodaija are sound and should be accepted. The compromise decree in Title Suit No. 126 of 1944 provided that Khodaija's name be expunged from the category of defendants in Title Suit No. 127 of 1939, and in other respects the decree in that suit would stand. The purpose of the compromise decree was that Khodaija's name should be expunged from the array of parties in Title Suit No. 127 of 1939, so that she would not be bound by the decree in that suit either actually or constructively.\n\nOn a construction of this decree, the High Court held on January 24, 1949 in the proceedings for restitution that Khodaija's claim for restitution fell within the purview of s. 144 of the Code of Civil Procedure and that \"as a result of a compromise, the decree was set aside as against her.\" By his final order dated June 28, 1949 the Munsif directed restitution on the basis of this finding.\n\nIn Mahijibhai v. Manibhai ('), this Court by a majority held that an .application for restitution under s. 144 of the Code of Civil Pro- cedure is an application for execution of a decree.\n\nThe principle of res judicata applies to execution proceedings.\n\nIt follows that Khodaija is not bound by the decree in Title Suit No. 127 of 1939 :and is entitled to re-agitate all the questions in issue in that suit.\n\nThe appellant must, therefore, establish his title to the land.\n\nHe claims that after the preliminary decree Najma orally gave\n\n(1) (19651 \" S. C. R. 436.\n\n• F\n\nH •\n\n• F\n\nhim her entire movable and immovable properties including the tenure, and she died after making over possession of the same.\n\nShe died leaving her father and mother as her heirs. Both her parents filed petitions in Title Suit No. 127 of 1939 supporting the oral gift of the suit land. This circumstance favours the case of oral gift. The appellant examined. himself as a witness in this case. He said that the gift was made on February 10, 1943 in the presence of his parents. His mother was alive, but she was not examined as a witness. The date of the gift was not mentioned in the plaint or in any earlier document; it was disclosed for the first time in the witness-box, and even then, it was not made clear how he remembered the date in the absence of any record. In the petition filed by him on April 10, 1943 in Title Suit No. 127 of 1939 he had made a different case and had stated that the gift was made a few months before her death on February 26, 1943. His case now is that Najma made a gift of her entire movable and immovable properties. This case was not made in the petitions filed in Title Suit No. 127 of 1939. The particulars of the other properties are not disclosed, nor is it shown that he ever took possession of those properties. In the plaint, he made the case that Najma died after making over possession of the tenure to him. This statement is untrue, because Najma had been dispossessed of the tenure in August 1942 and was not in possession of it at the time of the alleged gift.\n\nConsidering all the circumstances, the High Court held, and, in our opinion, rightly that the appellant failed to prove the alleged oral gift.\n\nWe also think that the alleged gift was invalid. In February 1943, Khodaija was in possession of the tenure claiming it adversely to Najma. After the alleged gift, Najma neither gave possession of the property, nor did anything to put it within the power of the appellant to obtain possession. The three pillars of a valid gift under the Mahomedan law are declaration, acceptance and delivery of possession. In Mohammad Abdul Ghani v. Fakhr Jahan Begam(I) Sir John Edge said : .\n\n\"For a valid gift inter vivas under the Mahomedan law applicable in this case, three conditions are necessary, which their Lordships consider have been correctly stated thus :\n\n(a) manifestation of the wish to give on the part of the donor;\n\n(b) the acceptance of the do nee either impliedly or expressly; and (c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively' (Mahomedan Law, by Syed Ameer Ali, 4th ed. vol. i, p. 41).\"\n\nThe Prophet has said : \"A gift is not valid without seisin.\" The rule of law is :\n\n(I) (1922) L. R. 491. A., 195, 209.\n\n484 SUPltl!MI! COUit! .Rl!POltTS\n\n[1966] 3 S.C'.R.\n\n\"Gifts are rendered valid by tender, acceptance and seisin.-Tender and acceptance are necessary because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seisin is necessary in order to establish a right of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract, without seisin.\" [See Hamilton's Hedaya (Grady's Edn), p. 482]\n\nPreviously, the rule of law was thought lo be so strict that it was said that land in the possession of a usurper (or wrongdoer)\n\n-0r of a lessee or a mortgagee cannot be given away, see Dorrul Mokhtar, Book on Gift, p. 635 cited in Mu/lie Abdool Gujfoor v.\n\nMuleka (1).\n\nBut the view now prevails that there can be a valid C gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession -of the property to the donee. Some authorities still take the view\n\nthat a property in the possession of a usurper cannot be given away, but this view appears to us to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser.\n\nD Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession. In Mahomed Buksh Khan v.\n\nHosseini Bibi(1), Lord Macnaghten said :\n\n\"In this case it appears to their Lordships that the lady E did all she could to perfect the contemplated gift, and that nothing more was required from her. The gift was attended with the utmost publicity, the hibbanama itself authorises the donees to take possession, and it appears that in fact they did take possession. Their Lordships hold under these circumstances that there can be no objection to the gift on the p ground that Shahzadi had not possession, and that she herself did not give possession at the time.\"\n\nBut a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, there must also be either delivery of possession, or failing such delivery, some overt act by the G <lonor to put it within the power of the donee to obtain possession.\n\nIf, apart from making a declaration, the donor docs nothing else, the gift is invalid. In Macnaghten's Muhammadan L1w, Precedents of Gifts, Case No. VI, the question was :\n\n\"A person executed a deed of gift in favour of his nephew, conferring upon him the proprietary right to certain lands, H of which be (the donor) was not in possession, but to rcover\n\n(I) (1884) I.LR. IO Cat. 1112., 1123.\n\n(2) (1888) !.. R. 15 T. A RI, 95.\n\n• \\\n\nB ...\n\nwhich he had brought an action, then pending, against hi~ wife ...... About a month after executing the deed, the donor died, and the donee, in virtue of the gift, lays claim to the litigated property. Under these circumstances is his claim, under the deed, allowable?\" and the answer was that the gift was null and the claim of the donee was inadmissible. The precedent covers the present case. Najma did nothing after the alleged declaration. She did not even file a petition in Title Suit No. 127 of 1939 mentioning the gift and asking for the substitution of the appellant in her place. Had she filed such a petition and submitted to an order of substitution, she would have placed it within the power of the appellant to obtain possession of the property; but she did nothing. Nor did the appellant obtain possession of the property during her life time with her consent. The gift is, therefore, invalid.\n\nIt follows that the appellant has no title to the suit property and the High Court rightly dismissed the suit. During the pendency of this appeal, one Babula!, an heir of a co-lessee from Khodaija in respect of plot No. 1400, died, and the appeal has abated against him. The respondent contended that in the circumstances the entire appeal has become defective for non-joinder of necessary parties and must be dismissed. We think that the appeal, so far as it concerns plot No. 1400, is defective for non-joinder of necessary parties, but the rest of the appeal is not defective on this ground.\n\nBut for the other reasons already stated, the entire appeal is liable to be dismissed.\n\nThe appeal is dismissed with costs.\n\nAppeal dismissed.", "total_entities": 61, "entities": [{"text": "MAQBOOL ALAM KHAN", "label": "PETITIONER", "start_char": 18, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "MAQBOOL ALAM KHAN", "offset_not_found": false}}, {"text": "MST. KHODAIJA & ORS", "label": "RESPONDENT", "start_char": 37, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "MST. KHODAIJA & ORS", "offset_not_found": false}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 78, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 92, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "R.S. BACHAWAT", "label": "JUDGE", "start_char": 113, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "L. N", "label": "OTHER_PERSON", "start_char": 532, "end_char": 536, "source": "ner", "metadata": {"in_sentence": "The Maharaja of Dumraon filed a rent suit against some of the cosharers in a tenure held under him of certain lands and at the 9ale in execution the tenure was purchased by one L. N, the widow of one of the original co-sharers instituted a title suit. ("}}, {"text": "s. 144", "label": "PROVISION", "start_char": 1712, "end_char": 1718, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 1722, "end_char": 1749, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 144", "label": "PROVISION", "start_char": 2742, "end_char": 2748, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 2749, "end_char": 2754, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "(1965) 2 S.C.R. 436", "label": "CASE_CITATION", "start_char": 3085, "end_char": 3104, "source": "regex", "metadata": {}}, {"text": "Sarjoo Prasad", "label": "OTHER_PERSON", "start_char": 4076, "end_char": 4089, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad, R. S. Sinha, and R. C. Prasad, for the appellant."}}, {"text": "R. S. Sinha", "label": "LAWYER", "start_char": 4091, "end_char": 4102, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad, R. S. Sinha, and R. C. Prasad, for the appellant."}}, {"text": "R. C. Prasad", "label": "LAWYER", "start_char": 4108, "end_char": 4120, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad, R. S. Sinha, and R. C. Prasad, for the appellant."}}, {"text": "S. C. Agarwal", "label": "LAWYER", "start_char": 4142, "end_char": 4155, "source": "ner", "metadata": {"in_sentence": "S. C. Agarwal, R. K. GarK, D. P. Singh and M. K. Ramamurthi • for respondent No."}}, {"text": "R. K. GarK", "label": "LAWYER", "start_char": 4157, "end_char": 4167, "source": "ner", "metadata": {"in_sentence": "S. C. Agarwal, R. K. GarK, D. P. Singh and M. K. Ramamurthi • for respondent No."}}, {"text": "D. P. Singh", "label": "LAWYER", "start_char": 4169, "end_char": 4180, "source": "ner", "metadata": {"in_sentence": "S. C. Agarwal, R. K. GarK, D. P. Singh and M. K. Ramamurthi • for respondent No."}}, {"text": "M. K. Ramamurthi", "label": "LAWYER", "start_char": 4185, "end_char": 4201, "source": "ner", "metadata": {"in_sentence": "S. C. Agarwal, R. K. GarK, D. P. Singh and M. K. Ramamurthi • for respondent No."}}, {"text": "K. R. Sinha", "label": "LAWYER", "start_char": 4227, "end_char": 4238, "source": "ner", "metadata": {"in_sentence": "I.\n\nK. R. Sinha, for respondents Nos."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 4321, "end_char": 4329, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBachawat, J. Shaik Ahmad Ali was the holder of a tenure recorded in Khewat No."}}, {"text": "Shaik Ahmad Ali", "label": "OTHER_PERSON", "start_char": 4334, "end_char": 4349, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBachawat, J. Shaik Ahmad Ali was the holder of a tenure recorded in Khewat No."}}, {"text": "Waziran", "label": "OTHER_PERSON", "start_char": 4551, "end_char": 4558, "source": "ner", "metadata": {"in_sentence": "He died in 1910 leaving as his\" heirs, his mother Waziran, his second wife Elahijan, three sons Amanat, Ashghar and Ashraf and two daughters born of F.lahijan, and two sons Hamid and Mahmud and four daughters horn of his first wife Nabiban."}}, {"text": "Amanat", "label": "OTHER_PERSON", "start_char": 4597, "end_char": 4603, "source": "ner", "metadata": {"in_sentence": "He died in 1910 leaving as his\" heirs, his mother Waziran, his second wife Elahijan, three sons Amanat, Ashghar and Ashraf and two daughters born of F.lahijan, and two sons Hamid and Mahmud and four daughters horn of his first wife Nabiban."}}, {"text": "Ashghar", "label": "OTHER_PERSON", "start_char": 4605, "end_char": 4612, "source": "ner", "metadata": {"in_sentence": "He died in 1910 leaving as his\" heirs, his mother Waziran, his second wife Elahijan, three sons Amanat, Ashghar and Ashraf and two daughters born of F.lahijan, and two sons Hamid and Mahmud and four daughters horn of his first wife Nabiban.", "canonical_name": "Ashghar"}}, {"text": "Ashraf", "label": "OTHER_PERSON", "start_char": 4617, "end_char": 4623, "source": "ner", "metadata": {"in_sentence": "He died in 1910 leaving as his\" heirs, his mother Waziran, his second wife Elahijan, three sons Amanat, Ashghar and Ashraf and two daughters born of F.lahijan, and two sons Hamid and Mahmud and four daughters horn of his first wife Nabiban."}}, {"text": "Hamid", "label": "OTHER_PERSON", "start_char": 4674, "end_char": 4679, "source": "ner", "metadata": {"in_sentence": "He died in 1910 leaving as his\" heirs, his mother Waziran, his second wife Elahijan, three sons Amanat, Ashghar and Ashraf and two daughters born of F.lahijan, and two sons Hamid and Mahmud and four daughters horn of his first wife Nabiban."}}, {"text": "Mahmud", "label": "OTHER_PERSON", "start_char": 4684, "end_char": 4690, "source": "ner", "metadata": {"in_sentence": "He died in 1910 leaving as his\" heirs, his mother Waziran, his second wife Elahijan, three sons Amanat, Ashghar and Ashraf and two daughters born of F.lahijan, and two sons Hamid and Mahmud and four daughters horn of his first wife Nabiban."}}, {"text": "Nabiban", "label": "OTHER_PERSON", "start_char": 4733, "end_char": 4740, "source": "ner", "metadata": {"in_sentence": "He died in 1910 leaving as his\" heirs, his mother Waziran, his second wife Elahijan, three sons Amanat, Ashghar and Ashraf and two daughters born of F.lahijan, and two sons Hamid and Mahmud and four daughters horn of his first wife Nabiban."}}, {"text": "Dumraon", "label": "GPE", "start_char": 4942, "end_char": 4949, "source": "ner", "metadata": {"in_sentence": "The Maharaja of Dumraon instituted Rent Suit No."}}, {"text": "Najma", "label": "OTHER_PERSON", "start_char": 5290, "end_char": 5295, "source": "ner", "metadata": {"in_sentence": "Eventually, under a compromise, Najma the wife of Amanat got 2 annas 8 pies IO krant share in the tenure."}}, {"text": "Latafat", "label": "OTHER_PERSON", "start_char": 5466, "end_char": 5473, "source": "ner", "metadata": {"in_sentence": "13 of 1915 into execution, and Latafat, son of Ashgar by his first wife Safidan, purchased the tenure at the execution sale.", "canonical_name": "Latafat"}}, {"text": "Ashgar", "label": "OTHER_PERSON", "start_char": 5482, "end_char": 5488, "source": "ner", "metadata": {"in_sentence": "13 of 1915 into execution, and Latafat, son of Ashgar by his first wife Safidan, purchased the tenure at the execution sale.", "canonical_name": "Ashghar"}}, {"text": "Safidan", "label": "OTHER_PERSON", "start_char": 5507, "end_char": 5514, "source": "ner", "metadata": {"in_sentence": "13 of 1915 into execution, and Latafat, son of Ashgar by his first wife Safidan, purchased the tenure at the execution sale."}}, {"text": "Latafot", "label": "OTHER_PERSON", "start_char": 5578, "end_char": 5585, "source": "ner", "metadata": {"in_sentence": "In October 1928, Latafot obtained possession of the tenure through Court.", "canonical_name": "Latafat"}}, {"text": "Khodaija", "label": "PETITIONER", "start_char": 6113, "end_char": 6121, "source": "ner", "metadata": {"in_sentence": "At the execution sale in November 1940, Khodaija, the second wife of Ashgar, purchased the tenure.", "canonical_name": "Khodaija"}}, {"text": "July 9, 1942", "label": "DATE", "start_char": 6251, "end_char": 6263, "source": "ner", "metadata": {"in_sentence": "On July 9, 1942, a decree declaring the title of Najma to her share in the tenure and a preliminary decree for partition were passed in that suit."}}, {"text": "August 9,.\n\n1942", "label": "DATE", "start_char": 6398, "end_char": 6414, "source": "ner", "metadata": {"in_sentence": "On August 9,."}}, {"text": "February 26, 1943", "label": "DATE", "start_char": 6535, "end_char": 6552, "source": "ner", "metadata": {"in_sentence": "On February 26, 1943, Najma died."}}, {"text": "April 10, 1943", "label": "DATE", "start_char": 6569, "end_char": 6583, "source": "ner", "metadata": {"in_sentence": "On April 10, 1943, the appellant filed a petition in Title Suit No."}}, {"text": "April 21, 1943", "label": "DATE", "start_char": 6779, "end_char": 6793, "source": "ner", "metadata": {"in_sentence": "On April 21, 1943, the Court passed an order substituting the appellant as plaintiff in the suit in place of Najma."}}, {"text": "June 14, 1943", "label": "DATE", "start_char": 6895, "end_char": 6908, "source": "ner", "metadata": {"in_sentence": "On June 14, 1943, a final decree was, passed in the suit."}}, {"text": "June 25, 1943", "label": "DATE", "start_char": 7019, "end_char": 7032, "source": "ner", "metadata": {"in_sentence": "On June 25, 1943, the appellant obtained possession of the land dispossessing Khodaija."}}, {"text": "Khodaija", "label": "PETITIONER", "start_char": 7536, "end_char": 7544, "source": "ner", "metadata": {"in_sentence": "I (that is Khodaija} from the category of defendants in Title Suit No.", "canonical_name": "Khodaija"}}, {"text": "s. 144", "label": "PROVISION", "start_char": 7850, "end_char": 7856, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7860, "end_char": 7887, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "January 24,. 1949", "label": "DATE", "start_char": 8032, "end_char": 8049, "source": "ner", "metadata": {"in_sentence": "The Munsif allowed the application; on appeal, the first Appellate Court dismissed it; and on second appeal, the High Court passed an order on January 24,."}}, {"text": "June 28, 1949", "label": "DATE", "start_char": 8142, "end_char": 8155, "source": "ner", "metadata": {"in_sentence": "On June 28, 1949, the Munsif directed restitution of 19 54 acres of land to Khodaija."}}, {"text": "July I, 1949", "label": "DATE", "start_char": 8228, "end_char": 8240, "source": "ner", "metadata": {"in_sentence": "On July I, 1949, Khodaija obtained possession of the land through Court."}}, {"text": "Najma. Khodaija", "label": "OTHER_PERSON", "start_char": 9482, "end_char": 9497, "source": "ner", "metadata": {"in_sentence": "127 of 1939 in the presence of her predecessor-in-title, Latafat and that the decree conclusively declared his title to the land on the basis of the oral gift by Najma."}}, {"text": "24, 1949", "label": "DATE", "start_char": 9783, "end_char": 9791, "source": "ner", "metadata": {"in_sentence": "127 of 1939 and she is therefore not bound by the decree passed in that suit, and (2) by the order of the High Court dated January 24, 1949 and the final order of the Munsif dated June 28, 1949 passed in the proceedings for restitution under s. 144 of the Code of Civil Procedure it was finally declared that she was not bound by the decree in Title Suit No."}}, {"text": "s. 144", "label": "PROVISION", "start_char": 9894, "end_char": 9900, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 9904, "end_char": 9931, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "January 24, 1949", "label": "DATE", "start_char": 10593, "end_char": 10609, "source": "ner", "metadata": {"in_sentence": "On a construction of this decree, the High Court held on January 24, 1949 in the proceedings for restitution that Khodaija's claim for restitution fell within the purview of s. 144 of the Code of Civil Procedure and that \"as a result of a compromise, the decree was set aside as against her.\""}}, {"text": "s. 144", "label": "PROVISION", "start_char": 10710, "end_char": 10716, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 10720, "end_char": 10747, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 144", "label": "PROVISION", "start_char": 11035, "end_char": 11041, "source": "regex", "metadata": {"statute": null}}, {"text": "February 10, 1943", "label": "DATE", "start_char": 11939, "end_char": 11956, "source": "ner", "metadata": {"in_sentence": "He said that the gift was made on February 10, 1943 in the presence of his parents."}}, {"text": "Syed Ameer Ali", "label": "OTHER_PERSON", "start_char": 14087, "end_char": 14101, "source": "ner", "metadata": {"in_sentence": "\"For a valid gift inter vivas under the Mahomedan law applicable in this case, three conditions are necessary, which their Lordships consider have been correctly stated thus :\n\n(a) manifestation of the wish to give on the part of the donor;\n\n(b) the acceptance of the do nee either impliedly or expressly; and (c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively' (Mahomedan Law, by Syed Ameer Ali, 4th ed."}}, {"text": "Macnaghten", "label": "OTHER_PERSON", "start_char": 15744, "end_char": 15754, "source": "ner", "metadata": {"in_sentence": "In Mahomed Buksh Khan v.\n\nHosseini Bibi(1), Lord Macnaghten said :\n\n\"In this case it appears to their Lordships that the lady E did all she could to perfect the contemplated gift, and that nothing more was required from her."}}, {"text": "Shahzadi", "label": "OTHER_PERSON", "start_char": 16197, "end_char": 16205, "source": "ner", "metadata": {"in_sentence": "Their Lordships hold under these circumstances that there can be no objection to the gift on the p ground that Shahzadi had not possession, and that she herself did not give possession at the time.\""}}, {"text": "Babula", "label": "OTHER_PERSON", "start_char": 18122, "end_char": 18128, "source": "ner", "metadata": {"in_sentence": "During the pendency of this appeal, one Babula!,"}}]}
{"document_id": "1966_3_486_499_EN", "year": 1966, "text": "SURI RAM PRASAD (DECEASED) BY HIS LEGAi.\n\nREPRESENTATIVE\n\nI'.\n\nTHE STATE OF PUNJAB\n\nFebruary 7, 1966\n\n[P. B. GAJENDRAGADKAR, c. J. K. N. WA1'Cl!OO,\n\nM. HIDAYATULLAH, V. RAMASWAMI AND\n\nP. SAITA1'ARAYANA RAJU, JJ.]\n\nCorutitutlon of India Art. 357(2)-\"tllingJ done or omitr•d re be done\"--Scope of. : Bank of l'mia/a Reg11latlon and Management Order, 1954-validity of.\n\nRule 27 of Staff R11les framed thereunder-Whether violative of Art. 31 !- Whether staO rules infringe Art. 14. Corporation-Whether niajoriJy ca\" exercise po11-ers of.\n\nPatia/a Stale Reg11/ations-Applied to Bank employees by \"ext<nsion\"- JVht1ther extension executive acr.\n\nOn March 4, 1953, the President of India assumed powers of tbe Government of PEPSU (which in.eluded Patiala) under Article 356 of i11 Constitution. On February 27, 1954, in exercise of the powers vested in him by the Proclamation, the President issued the Bank of Patiala\n\nRegulation and Management Order 1954, to provide for the heller regulation and management of the Bank.\n\nBy virtue of the power. conferred upon it by Clause 4( 1) (iii) of the Regulation Order, the Board of Directors of tho Banlt framed certain Staff Rules.\n\nRule 27 of which provided for compulsory retirement of employees of the Bank. ---\n\nTho appellanf, who was an employee of the Patiala State Bank wa• compulsorily retired hy an order of the Board under Rule 27 passed in June 1958.\n\nHe challenged the order in a suit mainly on the ground that Rule 27 was illegal and void.\n\nThe Trial Court granted a decree .ubstantially allowing the appellant's claim but on appeal, this decree W3' set aside by the High Coun.\n\nIn the appeal to this Coun, it was contended on behalf of the appellant, Infer alio, (i) that though the Regulation Order [Clause 4(l)(iii) of which delegated power to the Board of Directors of the Bank to frame staff rules) was made on February 27, 1954, it was not publi, hed in the Gazette until March 14, 1954, hy which time, in view of the revocation of the proclamation on ~1arch 7, 1954. the powers of the Prci~ dent to make rules governing the service conditions of Government servants in the State had lapsed and the delegation by the President to the Board of the Power to frame rules had ipso facto come to an end. The Bo&Td therefore, bad no authority to frame the Slaff Rules on Moreb 25, 1954 and to enforce them from April l, 1954; that in any event the Regulation Order v:ac; in effect and sub!itance a legislalive Act and, in ,;., w of the provisions of Anicle 3 57 (2), its operation could not extend\n\nbeyond the period of one year specified in that Anicle;\n\n(ii) that prior to the promulgation of the Regulation Order in 1954 the Patiala State Regulations and other rules or orders. except the pension rules. made by the Ruler of Patiala. were applicable to the staff of the Patiala State Bank; the Staff Rules sought to supersede the provisions of the Patiala State Regulations and rules made by the Board. of Directota culd not abrogate the Regulations promulgated by the Rulor who exerciae6 the\n\n• • •\n\n• ' •\n\n_ ..\n\n\" '\n\nA powers of the Legislature; (iii) that Rule 27 was unconstitutional as it offended the guarantee under Anicle 311 of the Constitution and the Staff Rules were also violativo of Article 14; (v) that the Board which promulgated the Staff Rules had not been properly constituted inasmuch as some of the Directors were not present at the meeting.\n\nHELD :\n\n(i) Although the Regulation Order was made on February 27, 1954 and was not published in the Gazette until March 14, 1954, the order itself provided for its commencement on the date on which it\n\nwas made and it therefore came in to operation on February 27, 1954, i.e., before the termination of the President's Rule in PEPSU.\n\nOn a consideration of the provisions of the Regulation Order, it is manifest that those provisions were made for the better regulation and management of the affairs of the Bank and it would be an absurdity to hold that some of the pro; isions would cease to be in operation after the period of one year specified in Art. 357(2); all the clauses of the Regulation Order, including Clause 4(1)(iii), come within the purview of the saving clause in Anicle 357(2) which preserves the validity of \"things done or omitted to be done\" before the expiratwn of tho period of one year after the proclaimation has ceased to operate and the Regulation Order therefore continued to be in operation after the expiration of that year.\n\n[494 B-H]\n\nFoster v. Pritchard [1857) 2 L.J. Ex. 215; referred to.\n\n(ii) The Patiala State Regulations were applied to the employees of the St•te Bonk of Patiala as a result of an \"extension\" mado by the Maharaja pursuant to the executive powers vested in him.\n\nThe act of extension being as executive act it could be changed by a similar executive act.\n\nWhat was changed or superseded was the extension and not the E rules. [497 BJ\n\n(iii) There was no force in the contention that Rule 27 offended Article 311 or that the Staff Rules were violative of Anicle 14. [498 F1\n\nMotiram Deka v. N. E. Frontier Railway [1964] 5 S.C.R. 683, and Lachhman Das v. State of Punjab [1963) 2 S.C.R. 353; referred to.\n\n(iv) The High Court had rightly held that under the law governing corporations, a majority of the members of the Corporation is entitled to exercise the powers of the Corporation and that the rule regarding corporations is equally applicable to a company. The Board was, therefore, properly constituted at the time w)len the Staff Rules were promulgated. [499 Al\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 530 of 1964.\n\nAppeal from the judgment and decree dated December 19, 1962 of the Punjab High Court in Regular First Appeal No. 78 of 1961.\n\nC. B. Aganva/a, K. P. Bhandari and R. Gopa/akrishnan, for the H appellant.\n\nBishan Narain, K. S. Chawla and R. N. Sachthey, for the respondents.\n\nSUPREME COURT REPORTS [I 966] 3 s.c.ll.\n\nThe Judgment of the Court was delivered by\n\nSatyaoarayana Raju, J. This appeal, on certificate granted by the High Court of Punjab, arises out of a suit filel! by one Ram Prasad, against the State of Punjab, for a declaration that the order of compulsory retirement passed by the latter against him was invalid.\n\nRam Prasad originally entered service as a Clerk, in the year 1924, in the Patiala Saddar Treasury in what was then the Patiala State. He was subsequently transferred in the same capacity to the Patiala State Bank on February 27, 1984 Bk and was confirmed in his appointment. On September I, 1985 Bk, he was promoted to the next higher grade on the establishment of the Patiala State Bank. Thereafter, he was promoted a~ Manager and posted to the Bhatinda branch of the Bank on April I, 1944. On April I, 1949 he was promoted as Selection Grade Manager by the Board of Directors of the Bank in the grade of Rs. 340-20-500-525-700.\n\nOn September 23, I 953 he was compulsorily retired from service but was subsequently reinstated by the Government on June 10,\n\n1954 since the order was legally defective. On June 11, 1958 the Board passed an order compulsorily retiring him from service.\n\nRam Prasad challenged the order of compulsory retirement passed by the Board on various grounds, by means of a suit instituted in the Court of the Subordinate Judge, Patiala. He pleaded that the order of compulsory retirement amounted to 'dismissal or removal' from service within the meaning of art. 311 of the Constitution. He further maintained that r. 27 of the Bank of Patiala (Staff) Rules, 1954, hereinafter termed the Staff rules, under which the order of compulsory retirement was made, was illegal and void. The order was also challenged on the ground that it was ma/a fide.\n\nThe substantial relief claimed by him in the suit was a declaration that r. 27 of the Staff rules was wholly unconstitutional, null and void for the reasons stated by him.\n\nThe respondent contested the suit contending inter alia that the order of compulsory retirement was passed by the Board of Directors of the Bank under rules which were legal and constitutionally valid and governed the employees of the Bank.\n\nThe Subordinate Judge, Patiala, framed appropriate issues.\n\nHe found all but two issues in favour of the appellant and granted a decree substantially allowing the claims made by him. The respondent thereupon filed an appeal in the High Court of Punjab which allowed the appeal and set aside the judgment of the Subordinate Judge.\n\nDuring the pendency of the appeal in the High Court Ram Prasad died and his widow was brought on record as his legal representative.\n\nHowever, it will be convenient to refer to Ram Prasad as the appellant.\n\n' •\n\nD • ..\n\nF •\n\n• II\n\nBefore entering into the merits of the appeal, it would be convenient to refer very briefly to the historical background of the legislation. The Patiala State Regulations were first promulgated in the year 1908 and governed the employees of the State in matters relating to pay, allowances, leave, pension and travelling allowances. The Regulations were revised and re-published in the year 1931. Subsequently, they were again revised and re-issued as the Patiala Services Regulations in the year 1947.\n\nMeanwhile, in April 1941, these Regulations were made applicable expressly to the Bank staff of the Patiala State Bank by the Maharaja, with the exception of the rules relating to pension. On August 20, 1948, Patiala became a constituent unit of the Patiala and East Punjab States Union (PEPSU). On the formation of the Union, the Patiala Services Regulations were made applicable to the entire territories of the Union by Ordinance No. I of 2005 Bk. Therefore the Patiala Services Regulations continued to govern the members of the Patiala State Services even after they became integrated into the PEPSU Services.\n\nOn March 4, 1953, the President of India assumed the powers of the Government of PEPSU, in exercise of the powers conferred on him by art. 356 of the Constitution.\n\nOn February 27, 1954, the President, in exercise of the powers vested in him in relation to PEPSU by the Proclamation, issued the Bank of Patiala Regulation and Management Order, 1954, E hereinafter called the Regulation Order, to provide for the better regulation and management of the affairs of the said Bank. We will have occasion to refer to the material clauses of this Order at a later stage.\n\nBy virtue of the powers conferred upon it by cl. 4(l)(iii) of the Regulation Order, the Board of Directors of the Bank framed F the Staff rules. Rule 27 of these rules, at the relevant date, was in the following terms :\n\n\"An employee shall retire at fifty five years of age provided that\n\n(i) the Bank may, at its discretion and without giving any reasons, retire any employee from the Bank's service after he has completed the age of fifty years or the service of twenty five years whichever happens first and no -claim to special compensation on this account will be entertained;\n\n(ii) the Bank retains the absolute right to retire any employee after he has completed JO years of service without giving any reasons and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is the interest of the Bank\n\nto dispense with the further services of an employee such as on account of inefficiency, dishonesty, corruption or infamous conduct.\n\nExplanation I :\n\nThe action under proviso (ii) is intended to be taken : -,\n\n(a) Against an employee whose efficiency is impaired but against whom it is not desirable to make formal charge of inefficiency or, who has ceased to 1'c fully efficient that is, the value of the empl0yee is clearly incommensurate with the pay which he draws. It is not the intention to use the provision as a financial weapon that is to say the provision shall be used only in case of employees who are considered unfit for retention on personal as opposed to financial grounds; {b) In cases where reputation for corruption, dishonesty or infamous conduct is clearly established even though no specific instance is likely to be proved under those rules.\n\nThe arguments advanced by Mr. Agarwala, learned counsel for the appellant, have covered a wide ground, but, in the main, he has impugned the validity of r. 27 set out above.\n\nHis contentions may be briefly summarised as follows :\n\n(I) Prior to the promulgation of the Regulation Order in 1954, the Patiala State Regulations and other Rules or Orders, except the pension rules, made by the Ruler of Patiala, were applicable to the staff of the Patia!a State Bank. The Staff rules were made by the Board of Directors of the Bank by virtue of the delegation made in its favour under cl. 4(l)(iii) of the Regulation Order.\n\nThe delegation in favour of the Board lapsed on March 7, 1954 with the termination of the President's rule in PEPSU. Thereafter, the Board had no authority or power or jurisdiction to approve of the Staff rules on March 25, 1954 and to enforce them from April I,\n\n1954. (2) The Board. assuming the delegation in its favour to be valid, was not vested with the power to make rules regarding compulsory retirement of the servants of the Bank. (3) The Staff rules seek to supersede the provisions of Regulation IX of the Patiala State Regulations. Rules made by the Board cannot abrogate the Regulations promulgated by the Ruler who exercised the powers of the legislature. ( 4) The Board which promulgated the Staff Rules had not been properly constituted inasmuch as all the Directors were not present at the meeting.\n\nHowever, the main ground on which the validity of the staff rtIJes is challenged is that the Regulation Order, though made on\n\nA February 27, 1954, was published in the Gazette only on March 14, 1954, that by reason of the revocation of the Proclamation issued \\ by the President the power of the President to make rules governing the service conditions of Government servants in the State had lapsed and that the delegation by the President to the Board power to frame rules ipso facto came to an end when the Proclama-\n\nB tion was revoked, on the principle that the delegate's power comes to an automatic end by reason of the principal's power having lapsed .\n\n. - ~\n\n1 Mr. Bishan Narain, learned counsel for the respondent-State, countered these arguments and maintained that the Staff Rules were valid. c We may initially set out the relevant facts with regard to the Proclamation of Emergency by the President and its revocation.\n\nAs already stated, by notification dated March 4, 1953, the Pre- • sident, in exercise of the powers conferred by art. 356 of the Constitution, assumed all functions of the government of the State of\n\nPEPSU and all powers vested in or exercisable by the Rajpramukh 4 of the State. The Notification declared that the powers of the legislature of the State shall be exercisable by or under the autho- .. rity of Parliament.\n\nI By an order made by the President on the same date, the President issued a direction that all the functions of the Govern-\n\nE ment of the State of PEPSU and all the powers vested and exercisable by the Rajpramukh of the State under the Constitution or under any other law in force in the State shall, subject to the superintendence, direction and control of the President, be exercised by the Rajpramukh of the said State who was to act on the advice of\n\nthe Adviser appointed by the President in that behalf.\n\nBy notification dated March 21, 1954, in exercise of the powen • F conferred by cl. (2) of art. 356 of the Constitution, the President revoked the Proclamation issued by him under the said article on March 4, 1953.\n\nWhen a proclamation is made under art. 356, it will be open to the President to specify in such proclamation (a) that he will G himself exercise all or any of the functions of the Govt. of the State or all or any of the powers vested in or exercisable by the Governor\n\n'I or any body or authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.\n\nWhen a declaration is made to this effect by the President, it shall JI be competent fo~ Parliament to direct that the legislative power of the State Legislature shall be exercised by the President himself or by any other authority to whom such power may be delegated by the President under art. 357 (1 ). Art, 357(2) provides that\n\nany law made in exercise of the power of the legislature of the Sta.te by Parliament or the President or other authority referred to m sub-cl. (a) of cl. ( 1) which Parliament or the President or such other authority would not, but for the issue of a Proclamation under art. 356, have lx.-en competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of one year after the Proclamation has ceased to operate, but Cl. (2) of Article 357 makes an exception ........... .in the case of things done or omitted to be done before the expiry of the period of one year. It is argued firstly that the Regulation Order was not made before the date of revocation of the Proclamation.\n\nIt is said that the Order, though purporting to have been made on February 27, 1954 was not published in the Gazette till March 14, 1954.\n\nIt is doubtless true that the Regulation Order, though made on February 27, 1954, was not published in the Official Gazette till March 14, 1954. But cl. l(b) of the Order provides that it shall come into force at once and repeal all the previous Orders and instructions in so far as they are inconsistent with the pro visions of the Regulation Order. By reason of the fact that the Order itself provides for its commencement as the date on which it was made, it is clear that the Order came into operation on February 27, 1954, though it was published at a later date. The Order was therefore made before the date of termination of the President's rule in PEPSU.\n\nNow, it is contended by learned counsel for the appellant that the Regulation Order is in effect and substance a legislative act and that its operation could not extend beyond the period specified in art. 357(2). It may be initially stated that this contention was not raised in the Courts below and there was no pleading or any issue covering that contention. Further, there is nothing on record to show that no order was passed during the period of one year provided by art. 357(2) extending the life of the Regulation Order beyond that period.\n\nComing to the contention, the question is whether, on a fair construction of all its provisions and its intendment, the Regulation Order comes within the scope of the expression 'things done' occurring in art. 357(2). In Craies On Statute Law, Sixth Edition, it is pointed out at p. 415 that if an Act is repealed with a proviso 'except as to things done under it' the proviso will receive a _liberal interpretation. In Foster v. Pritchard(') it was contended, with respect to an action tried after the passing of the County Courts Act, 1856, that the trespass committed by the defendant under colour of the process of the Court was not 'an act done under' th~ repealed section, but, said the Court, 'there can be no doubt that 1t was the\n\n(I) [1857] 26 L. J. Ev. 215.\n\nF •\n\n• F\n\nllAM PRASAD v. PUNJAB (Raju, J.) 493\n\nintention of the legislature that the words in this proviso as to acts done under the repealed statutes should be construed in an extensive sense'. It is therefore open to the Court to find, on a fair construction of all the provisions of the Regulation Order which must be read as an integrated whole, whether they were intended to continue to be in force after the period specified in art. 357(2). It therefore becomes necessary to examine the provisions of the Regulation Order.\n\nThe Regulation Order provides that the management, control, supervision and direction of the affairs and business of the Bank shall vest in a Board constituted as provided in cl. 3(1). There can be no doubt that the management, control, supervision and direction of the affairs and business of the Bank are matters which were provided for not for a limited period but for an unspecified period even beyond the period of one year as provided by art. 357(2). Clause 4(1) is important. It provides that the Board shall pass the half-yearly balance-sheets and annual budget estimates and frame rules for the day to day working of the Bank.\n\nWe may, for the present, omit cl. 4(l)(iii). Sub-cl. (iv) provides that the Board may grant advances and fix limits upto which bills of exchange drawn by individual constituents may be accepted and frame rules in that behalf. Sub-cl. (v) provides for the Board framing rules regarding the Provident Fund for employees of the Bank, and sub-cl. (vi) for sanctioning expenditure and framing rules for its sanction by the Managing Director and other officers of the Bank. Under sub-cl. (vii), the Board shall invest the funds of the Bank in Government Securities, shares, debentures and other securities and sell them; under sub-cl. (viii), the Board shall borrow moneys and negotiate, transfer, sell, endorse, renew, pledge or mortgage Government promissory notes and other securities for the purpose of taking overdrafts and demand loans on their security; under sub-cl. (ix) issue instructions for the guidance of the Managing Director and require him to submit to the Board all information regarding the transactions of the Bank. Lastly, under sub-cl. (x) the Board shall delegate to the Managing Director, or subject to the Managing Director's supervision, to any of the other employees of the Bank any of the aforesaid powers. Clause 5 provides that the Board shall comply with such general or special directions as may from time to time be issue.d by the State Government.\n\nClause 6. provides for the meetings of the Board being held at least once m every three months or at such shorter intervals as the Chairman may decide and cl. 7 specifies the powers of the Managing Director. Clause 8 provides for the conduct of the business of the Bank. Clause 9 provides for the applicability of some of the provisions of the Banking Companies Act to the Bank.\n\nClause JO provides for the audit of the accounts of the Bank and\n\ncl. 11 provides that the Board shall, at the end of every calendar\n\nSUPREME COURT REPOJ.TS\n\n(1966] 3 S.C.R.\n\nyear, submit to the State Government the annual balance-sheet A of the Bank accompanied by a report on the working of the Bank and that the Board shall submit to the State Government such ' other information concerning the affairs of the Bank as may from time to time be required by the State Government. ....\n\nOn a consideration of the provisions of the Regulation Order iet out above, it is manifest that those provisions have been made as is stated in the preamble to the Order, for the better regulation and management of the affairs of the Bank. Indeed, cl. 3 of the Order provides for the constitution of a Board of Directors for the management, control, supervision and direction of the affairs and business of the Bank. The matters provided, barring cl. 4(1) (iii), relate to the day-to-day administration of the affairs of the Bank. It is impossible to say that the matters provided for in the Order would cease to be in operation after the period of one year. It will result in an absurdity to hold, for instance, that provisions like the one for sanction of expenditure, would cease to be in operation after the period of one year.\n\nWe may now deal with cl. 4(1) (iii) which provides that the Board shall appoint, remove, dismiss and lay down the general conditions of service of the employees of the Bank other than the Managing Director and frame rules in that behalf. It is pursuant to the powers vested in it under this clause that the Board of Directors of the Bank made the Staff rules, including r. 27 whose validity is questioned. The expression 'things done' occurring in art. 357(2), in our opinion, must receive a liberal and extensive construction. As already indicated, all the clauses of the Regulation Order must be read together as an integrated whole and we have to find, on a construction of all the clauses, whether they were intended to continue beyond the period of one year provided by art. 357(2). In the context in which cl. 4(1) (iii) occurs, it is not unreasonable to construe the power to make rules vested in the Board under that clause as 'things done' within the meaning of art. 357(2). There can be no doubt about the intention to preserve and continue the rules even after the period of one year after the cessation of the Emergency so that there may not be any hiatus in the administration of the affairs of the Bank.\n\nIt must therefore be held that all the clauses of the Regulation Order, including cl. 4(1) (iii), come within the purview of the saving clause occurring in art. 357(2) of the Constitution and that they continue to be in operation after the period specified in that article.\n\nOn this conclusion it follows that the delegation made by the President in favour of the Board of Directors of the Bank under the Regulation Order did not lapse on the terminatio of the President's rule in PEPSU.\n\nIt is therefore unnecessary to\n\n.... ..\n\n• •\n\n'~ A consider the decisions bearing on the question of the extent of the\n\n~ authority or power of a delegatee.\n\n) Learned counsel for the appellant has contended that the Patiala Services Regulations were existing law made by the Maharaja and it was not competent for the President to make the Regulation\n\nB Order empowering the Board of Directors of the Bank to supersede those Regulations. The learned Judges of the High Court held that the President was competent to promulgate the Regulation Order under art. 309 read with arts. 330 and 372 of the Constitution. Having regard to the conclusion reached by us, that the Regulation Order was validly made, we consider it unnecessary c to go into the larger question whether the Regulation Order had the force of rules framed under art. 309.\n\nIt is then contended that the Patiala State Regulations governing the conditions of service of public servants were laws made by the erstwhile ruler of Patiala and could not be changed to the \"\n\ndisadvantage of such public servants. The rules, as published\n\nD on February 17, 1930 contain the following, in Part I, Chapter I, Preliminary, under the heading 'Right of Changing Rules' : , \"I. The rules contained in these Regulations may not be modified or departed from except under the orders of the Ijlas-i-Khas based upon a report of the Finance Minister.\n\n4. The rules in these regulations apply to all officers holding appointments in the Patiala State, except in so far\n\nas they are over-ridden by distinct provision in any formal agreement entered into with the State by any officer.\" It is not the appellant's case that there was any formal agreement F between him and the State of Patiala that the rules shall not be changed during the period of his service.\n\nThe Patiala Services Regulations, Vol. I, published in 1947, preserved the right of the Maharaja to change the rules. Ruic 1.7, of Chapter I, reads :\n\nG \"Right of changing rules : The rules contained in these c Regulations shall not be modified or departed from except '\n\nunder the orders of the ljlas-i-Khas based upon a report of the Finance Minister.\" .,\n\nRule 1.7 of the 1947 Regulations corresponds to rr. I and 4 of the\n\nH 1930 Regulations. The contention of the appellant that the rules could not be changed is not therefore sustainable. They can certainly be changed by an authority competent to change them as is evident from Exhibit P. 8, dated July 19, 1940. The chang; 10 Sup. CI/66-19\n\nwas in fact effected by the Maharaja in his administrative capacity.\n\nExhibit P-8 is as follows :\n\n\"The Patiala State Bank is a State Department governed by its Constitution laid down by the Ijlas-i-Khas, but being at the same time autonomous as regards its accounts, which are kept on commercial basis, it has become necessary to define how far tbe rules applying to other State Departments and the Patiala State Regulations shall apply to the Bank. The Board of Directors think and recommend that the internal management of the Bank shall be subject to rules and regulations framed by them subject to the following exceptions :-\n\n(a) The P. S. R. shall apply to the Bank Staff with the eception of the pension rules, but instead thereof will have the benefit of a contributory Provident Fund, as already established.\n\n(c) The Bank service shall be recognised as State service for the purposes of employment in State service of suitable candidates among the descendants of Bank employees.\n\nThe Chairman of the Board of Directors put up a note to the Maha E raja of Patiala underneath :\n\n\"I respectfully request that the recommendations of the Board of Directors of the Bank, as stated above, may graciously be sanctioned.\"\n\nOn this, the Finance Committee re-commended as follows : J1\n\n\"The Finance Committee recommends that\n\n(I) Requets of the Chairman, Board of Directors, at (c), (e), (f) and (g) may be sanctioned.\n\n(2) The request at (a) may be sanctioned adding the following 'and other State Rules or orders' after 'Patiala G\n\nState Regulations' in the first line. '• \"\n\nThis recommendation was made by the Revenue Minister and the Finance Minister who constituted the members of the Finance Committee. On this the Cabinet supported the recommendations of the Finance Committee and submitted the Slime to the Maharaj a.\n\nThese recommendations were accepted by the Maharaja on April 8, 1941.\n\nH ..\n\nIt may be noted that the Order issued by the Maharaja on July 19, 1940, viz., Ex-P. 8 quoted above, is headed : 'Precis'.\n\nIt states that by reason of the fact that the Patiala State Bank is an autonomous department it became necessary to define how far the rules applying to other State departments and the Patiala State\n\nRegulations applied to the Bank. It was specifically stated in the recommendation made by the Board of Directors that the internal management of the Bank shall be subject to rules and regulations framed by them. Two important exceptions were made and those were that the Patiala State Regulations shall apply to the Bank staff with the exception of the pension rules, but that the staff shall have the benefit of a contributory provident fund and that the Bank service shall be recognized as a State service for the purposes of employment in State service of suitable candidates from among the descendants of the Bank employees.\n\nThe Finance Committee, as provided in rr. 1-7 ot the rules, recommended that the request might be sanctioned. The Cabinet supported the recommendation of the Finance Committee. On this, the Maharaja made an endorsement : \"We approve the recommendation of the Cabinet\". This was dated April II, 1941.\n\nIt is therefore clear that the extension of the rules governing the conditions of service of Government servants to the employees of the State Bank of Patiala was the result of 'an extension' made by the Maharaja pursuant to the executive power vested in him.\n\nThe act of extension being an executive act, there can be no doubt that it could be changed by a similar executive act. Therefore it is clear that what was changed or superseded was the extension and not the rules.\n\nIt is contended on behalf of the appellant that r. 27 of the Staff rules is not valid since it vi6lates the constitutional guarantee under art. 311 of the Constitution. We may here refer to the position in law with regard to a rule providing for compulsory retirement. In Moti Ram Deka v. N. E. Frontier Railway(!) where the decisions on the question were reviewed it was stated :\n\n\"The next decision in the same volume is the State of Bombay v. Saubhag Chand M. Doshi, (1958) S.C.R. 571 =A.l.R. 1957 S.C. 892. This was a case of compulsory retirement under r. 165-A of the Bombay Civil Services Rules as amended by the Saurashtra Government. In so far as this case dealt with the compulsory retirement of a civil servant, it is unnecessary to consider the Rule in question or the facts relating to the compulsory retirement of the civil servant. It is of interest to note that in dealing with the question as to whether\n\n\nL 10 Sup. CI/66-20\n\ncompulsory retirement amounted to removal or not, the tests which were applied were in regard to the loss of benefit already accrued and stigma attached to the civil servant. It is, however, significant that in considering the objection based on the contravention of Art. 311(2), Venkatarama Aiyar J., took the precaution of adding that 'questions of the said character coul<; i arise only when the rules fix both an age of superannuauon and an age for compulsory retirement and the services o_f a civil servant arc tenninated between these two points of time. But where there is no rule fixing the age of compulsory retirement, or if there is one and the servant is retired before\n\nin~ age prescribed therein, then that can be regarded only as <llsm1ssal or removal within art. 311(2)'. It would be noucee1 tnat the rule providing for compulsory retirement was upne1e1 on tne ground that such compulsory retirement does not amount to removal under art. 311(2) because it was another mode of retirement and it could be enforced only between the period of age of superannuation prescribed and after the minimum period of service indicated in the rule had been put in. If, however, no such minimum period is prescribed by the rule of compulsory retirement, that according to the judgment, would violate art. 311(2) and though the termination of a servant's services may be described as compulsory retirement, it would amount to dismissal or removal within the meaning of art. 311(2). With respect, we think that this statement correctly represents the true position in law\".\n\nThe validity of r. 27 cannot, in the instant case, be assailed on this ground.\n\nIt is then argued that the Staff rules are invalid because they offend art. 14. The ground of complaint is that different rules govern different public servants in the same State and that they are bad because they are discriminatory. This Court has held in a series of decisions culminating in the judgment of this Court in Lachhman Dass v. State of Punjab (1) that after the enactment of the States Reorganisation Act, 1956, different Acts in different parts of the same State could be sustained on the ground that the differentiation arises from geographical classification based on historical reasons. The contention raised by the learned counsel therefore fails.\n\nThere remains a minor contention which is that the Staff rules were not properly made by the Board of Directors. It is stated\n\nthat cl. 3 of the Regulation Order, which provides for a minimum number of six members, was not complied with and that since H the Staff rules were made by four members instead of six, they\n\n(I) Jl963] 2 S.C.R. 353-A.I.R. 1963 S.C. 222.\n\nwere invalid. As pointed out by the learned Judges of the High Court, under the law governing corporations a majority of the members of the corporation is entitled to exercise the powers of the corporation and that the rule regarding corporations is equally applicable to a company. We are in agreeme11t with this vi<1w.\n\nAs a result of the conclusions reached ; by us, this appeal mu st fail and is dismissed. In the circumstances of the case there will be no order as to costs .\n\nAppeal dismi3Hd.", "total_entities": 123, "entities": [{"text": "RAM PRASAD (DECEASED) BY HIS LEGAi.\n\nREPRESENTATIVE", "label": "PETITIONER", "start_char": 5, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "RAM PRASAD (DECEASED) BY HIS LEGAL REPRESENTATIVE", "offset_not_found": false}}, {"text": "THE STATE OF PUNJAB", "label": "RESPONDENT", "start_char": 63, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF PUNJAB", "offset_not_found": false}}, {"text": "February 7, 1966", "label": "DATE", "start_char": 84, "end_char": 100, "source": "ner", "metadata": {"in_sentence": "THE STATE OF PUNJAB\n\nFebruary 7, 1966\n\n[P. B. GAJENDRAGADKAR, c. J. K. N. WA1'Cl!OO,\n\nM. HIDAYATULLAH, V. RAMASWAMI AND\n\nP. SAITA1'ARAYANA RAJU, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 103, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 149, "end_char": 164, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 166, "end_char": 178, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "P. SAITA1'ARAYANA RAJU, JJ.", "label": "JUDGE", "start_char": 184, "end_char": 211, "source": "metadata", "metadata": {"canonical_name": "P. SATYANARAYANA RAJU", "offset_not_found": false}}, {"text": "Art. 357(2)", "label": "PROVISION", "start_char": 236, "end_char": 247, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 430, "end_char": 437, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 469, "end_char": 476, "source": "regex", "metadata": {"statute": null}}, {"text": "March 4, 1953", "label": "DATE", "start_char": 643, "end_char": 656, "source": "ner", "metadata": {"in_sentence": "On March 4, 1953, the President of India assumed powers of tbe Government of PEPSU (which in.eluded Patiala) under Article 356 of i11 Constitution."}}, {"text": "Article 356", "label": "PROVISION", "start_char": 755, "end_char": 766, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 4( 1)", "label": "PROVISION", "start_char": 1062, "end_char": 1074, "source": "regex", "metadata": {"statute": null}}, {"text": "Patiala State Bank", "label": "ORG", "start_char": 1296, "end_char": 1314, "source": "ner", "metadata": {"in_sentence": "Tho appellanf, who was an employee of the Patiala State Bank wa• compulsorily retired hy an order of the Board under Rule 27 passed in June 1958."}}, {"text": "Clause 4(l)(iii)", "label": "PROVISION", "start_char": 1753, "end_char": 1769, "source": "regex", "metadata": {"statute": null}}, {"text": "February 27, 1954", "label": "DATE", "start_char": 1867, "end_char": 1884, "source": "ner", "metadata": {"in_sentence": "In the appeal to this Coun, it was contended on behalf of the appellant, Infer alio, (i) that though the Regulation Order [Clause 4(l)(iii) of which delegated power to the Board of Directors of the Bank to frame staff rules) was made on February 27, 1954, it was not publi, hed in the Gazette until March 14, 1954, hy which time, in view of the revocation of the proclamation on ~1arch 7, 1954."}}, {"text": "March 14, 1954", "label": "DATE", "start_char": 1929, "end_char": 1943, "source": "ner", "metadata": {"in_sentence": "In the appeal to this Coun, it was contended on behalf of the appellant, Infer alio, (i) that though the Regulation Order [Clause 4(l)(iii) of which delegated power to the Board of Directors of the Bank to frame staff rules) was made on February 27, 1954, it was not publi, hed in the Gazette until March 14, 1954, hy which time, in view of the revocation of the proclamation on ~1arch 7, 1954."}}, {"text": "~1arch 7, 1954", "label": "DATE", "start_char": 2009, "end_char": 2023, "source": "ner", "metadata": {"in_sentence": "In the appeal to this Coun, it was contended on behalf of the appellant, Infer alio, (i) that though the Regulation Order [Clause 4(l)(iii) of which delegated power to the Board of Directors of the Bank to frame staff rules) was made on February 27, 1954, it was not publi, hed in the Gazette until March 14, 1954, hy which time, in view of the revocation of the proclamation on ~1arch 7, 1954."}}, {"text": "Moreb 25, 1954", "label": "DATE", "start_char": 2322, "end_char": 2336, "source": "ner", "metadata": {"in_sentence": "The Bo&Td therefore, bad no authority to frame the Slaff Rules on Moreb 25, 1954 and to enforce them from April l, 1954; that in any event the Regulation Order v:ac; in effect and sub!itance a legislalive Act and, in ,;.,"}}, {"text": "April l, 1954", "label": "DATE", "start_char": 2362, "end_char": 2375, "source": "ner", "metadata": {"in_sentence": "The Bo&Td therefore, bad no authority to frame the Slaff Rules on Moreb 25, 1954 and to enforce them from April l, 1954; that in any event the Regulation Order v:ac; in effect and sub!itance a legislalive Act and, in ,;.,"}}, {"text": "Patiala", "label": "GPE", "start_char": 2779, "end_char": 2786, "source": "ner", "metadata": {"in_sentence": "made by the Ruler of Patiala."}}, {"text": "Article 14", "label": "PROVISION", "start_char": 3251, "end_char": 3261, "source": "regex", "metadata": {"statute": null}}, {"text": "PEPSU", "label": "ORG", "start_char": 3746, "end_char": 3751, "source": "ner", "metadata": {"in_sentence": "HELD :\n\n(i) Although the Regulation Order was made on February 27, 1954 and was not published in the Gazette until March 14, 1954, the order itself provided for its commencement on the date on which it\n\nwas made and it therefore came in to operation on February 27, 1954, i.e., before the termination of the President's Rule in PEPSU."}}, {"text": "Art. 357(2)", "label": "PROVISION", "start_char": 4070, "end_char": 4081, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 4(1)(iii)", "label": "PROVISION", "start_char": 4134, "end_char": 4150, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311", "label": "PROVISION", "start_char": 4974, "end_char": 4985, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964] 5 S.C.R. 683", "label": "CASE_CITATION", "start_char": 5087, "end_char": 5106, "source": "regex", "metadata": {}}, {"text": "[1963) 2 S.C.R. 353", "label": "CASE_CITATION", "start_char": 5144, "end_char": 5163, "source": "regex", "metadata": {}}, {"text": "C. B. Aganva", "label": "LAWYER", "start_char": 5731, "end_char": 5743, "source": "ner", "metadata": {"in_sentence": "C. B. Aganva/a, K. P. Bhandari and R. Gopa/akrishnan, for the H appellant."}}, {"text": "K. P. Bhandari", "label": "LAWYER", "start_char": 5747, "end_char": 5761, "source": "ner", "metadata": {"in_sentence": "C. B. Aganva/a, K. P. Bhandari and R. Gopa/akrishnan, for the H appellant."}}, {"text": "R. Gopa", "label": "LAWYER", "start_char": 5766, "end_char": 5773, "source": "ner", "metadata": {"in_sentence": "C. B. Aganva/a, K. P. Bhandari and R. Gopa/akrishnan, for the H appellant."}}, {"text": "Bishan Narain", "label": "LAWYER", "start_char": 5807, "end_char": 5820, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, K. S. Chawla and R. N. Sachthey, for the respondents."}}, {"text": "K. S. Chawla", "label": "LAWYER", "start_char": 5822, "end_char": 5834, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, K. S. Chawla and R. N. Sachthey, for the respondents."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 5839, "end_char": 5853, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, K. S. Chawla and R. N. Sachthey, for the respondents."}}, {"text": "Satyaoarayana Raju", "label": "JUDGE", "start_char": 5962, "end_char": 5980, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSatyaoarayana Raju, J. This appeal, on certificate granted by the High Court of Punjab, arises out of a suit filel!"}}, {"text": "Ram Prasad", "label": "PETITIONER", "start_char": 6085, "end_char": 6095, "source": "ner", "metadata": {"in_sentence": "by one Ram Prasad, against the State of Punjab, for a declaration that the order of compulsory retirement passed by the latter against him was invalid.", "canonical_name": "Ram Prasad"}}, {"text": "State of Punjab", "label": "ORG", "start_char": 6109, "end_char": 6124, "source": "ner", "metadata": {"in_sentence": "by one Ram Prasad, against the State of Punjab, for a declaration that the order of compulsory retirement passed by the latter against him was invalid."}}, {"text": "Ram Prasad", "label": "PETITIONER", "start_char": 6231, "end_char": 6241, "source": "ner", "metadata": {"in_sentence": "Ram Prasad originally entered service as a Clerk, in the year 1924, in the Patiala Saddar Treasury in what was then the Patiala State.", "canonical_name": "Ram Prasad"}}, {"text": "February 27, 1984", "label": "DATE", "start_char": 6448, "end_char": 6465, "source": "ner", "metadata": {"in_sentence": "He was subsequently transferred in the same capacity to the Patiala State Bank on February 27, 1984 Bk and was confirmed in his appointment."}}, {"text": "September I, 1985 Bk", "label": "DATE", "start_char": 6510, "end_char": 6530, "source": "ner", "metadata": {"in_sentence": "On September I, 1985 Bk, he was promoted to the next higher grade on the establishment of the Patiala State Bank."}}, {"text": "Bhatinda", "label": "GPE", "start_char": 6678, "end_char": 6686, "source": "ner", "metadata": {"in_sentence": "Thereafter, he was promoted a~ Manager and posted to the Bhatinda branch of the Bank on April I, 1944."}}, {"text": "April I, 1944", "label": "DATE", "start_char": 6709, "end_char": 6722, "source": "ner", "metadata": {"in_sentence": "Thereafter, he was promoted a~ Manager and posted to the Bhatinda branch of the Bank on April I, 1944."}}, {"text": "April I, 1949", "label": "DATE", "start_char": 6727, "end_char": 6740, "source": "ner", "metadata": {"in_sentence": "On April I, 1949 he was promoted as Selection Grade Manager by the Board of Directors of the Bank in the grade of Rs."}}, {"text": "September 23, I 953", "label": "DATE", "start_char": 6866, "end_char": 6885, "source": "ner", "metadata": {"in_sentence": "On September 23, I 953 he was compulsorily retired from service but was subsequently reinstated by the Government on June 10,\n\n1954 since the order was legally defective."}}, {"text": "June 10,\n\n1954", "label": "DATE", "start_char": 6980, "end_char": 6994, "source": "ner", "metadata": {"in_sentence": "On September 23, I 953 he was compulsorily retired from service but was subsequently reinstated by the Government on June 10,\n\n1954 since the order was legally defective."}}, {"text": "June 11, 1958", "label": "DATE", "start_char": 7037, "end_char": 7050, "source": "ner", "metadata": {"in_sentence": "On June 11, 1958 the Board passed an order compulsorily retiring him from service."}}, {"text": "Subordinate Judge, Patiala", "label": "COURT", "start_char": 7265, "end_char": 7291, "source": "ner", "metadata": {"in_sentence": "Ram Prasad challenged the order of compulsory retirement passed by the Board on various grounds, by means of a suit instituted in the Court of the Subordinate Judge, Patiala."}}, {"text": "art. 311", "label": "PROVISION", "start_char": 7414, "end_char": 7422, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Punjab", "label": "COURT", "start_char": 8350, "end_char": 8370, "source": "ner", "metadata": {"in_sentence": "The respondent thereupon filed an appeal in the High Court of Punjab which allowed the appeal and set aside the judgment of the Subordinate Judge."}}, {"text": "August 20, 1948", "label": "DATE", "start_char": 9377, "end_char": 9392, "source": "ner", "metadata": {"in_sentence": "On August 20, 1948, Patiala became a constituent unit of the Patiala and East Punjab States Union (PEPSU)."}}, {"text": "Patiala and East Punjab States Union", "label": "ORG", "start_char": 9435, "end_char": 9471, "source": "ner", "metadata": {"in_sentence": "On August 20, 1948, Patiala became a constituent unit of the Patiala and East Punjab States Union (PEPSU)."}}, {"text": "Therefore the Patiala Services Regulations", "label": "STATUTE", "start_char": 9636, "end_char": 9678, "source": "regex", "metadata": {}}, {"text": "Patiala State Services", "label": "ORG", "start_char": 9718, "end_char": 9740, "source": "ner", "metadata": {"in_sentence": "Therefore the Patiala Services Regulations continued to govern the members of the Patiala State Services even after they became integrated into the PEPSU Services."}}, {"text": "PEPSU Services", "label": "ORG", "start_char": 9784, "end_char": 9798, "source": "ner", "metadata": {"in_sentence": "Therefore the Patiala Services Regulations continued to govern the members of the Patiala State Services even 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"start_char": 12770, "end_char": 12783, "source": "ner", "metadata": {"in_sentence": "The delegation in favour of the Board lapsed on March 7, 1954 with the termination of the President's rule in PEPSU."}}, {"text": "March 25, 1954", "label": "DATE", "start_char": 12936, "end_char": 12950, "source": "ner", "metadata": {"in_sentence": "Thereafter, the Board had no authority or power or jurisdiction to approve of the Staff rules on March 25, 1954 and to enforce them from April I,\n\n1954. ("}}, {"text": "art. 356", "label": "PROVISION", "start_char": 14590, "end_char": 14598, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 14886, "end_char": 14896, "source": "ner", "metadata": {"in_sentence": "The Notification declared that the powers of the legislature of the State shall be exercisable by or under the autho- .. rity of Parliament."}}, {"text": "art. 356", "label": "PROVISION", "start_char": 15503, "end_char": 15511, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 356", "label": "PROVISION", "start_char": 15662, "end_char": 15670, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 357", "label": "PROVISION", "start_char": 16393, "end_char": 16401, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 356", "label": "PROVISION", "start_char": 16705, "end_char": 16713, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 357", "label": "PROVISION", 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the delegation made by the President in favour of the Board of Directors of the Bank under the Regulation"}}, {"text": "arts. 330 and 372", "label": "PROVISION", "start_char": 25807, "end_char": 25824, "source": "regex", "metadata": {"linked_statute_text": "On this conclusion it follows that the delegation made by the President in favour of the Board of Directors of the Bank under the Regulation", "statute": "On this conclusion it follows that the delegation made by the President in favour of the Board of Directors of the Bank under the Regulation"}}, {"text": "art. 309", "label": "PROVISION", "start_char": 26062, "end_char": 26070, "source": "regex", "metadata": {"linked_statute_text": "On this conclusion it follows that the delegation made by the President in favour of the Board of Directors of the Bank under the Regulation", "statute": "On this conclusion it follows that the delegation made by the President in favour of the Board of Directors of the Bank under the Regulation"}}, {"text": "February 17, 1930", "label": "DATE", "start_char": 26336, "end_char": 26353, "source": "ner", "metadata": {"in_sentence": "The rules, as published\n\nD on February 17, 1930 contain the following, in Part I, Chapter I, Preliminary, under the heading 'Right of Changing Rules' : , \"I. The rules contained in these Regulations may not be modified or departed from except under the orders of the Ijlas-i-Khas based upon a report of the Finance Minister."}}, {"text": "Right of Changing Rules", "label": "STATUTE", "start_char": 26431, "end_char": 26454, "source": "regex", "metadata": {}}, {"text": "State of Patiala", "label": "ORG", "start_char": 26953, "end_char": 26969, "source": "ner", "metadata": {"in_sentence": "It is not the appellant's case that there was any formal agreement F between him and the State of Patiala that the rules shall not be changed during the period of his service."}}, {"text": "Maharaja", "label": "OTHER_PERSON", "start_char": 27768, "end_char": 27776, "source": "ner", "metadata": {"in_sentence": "CI/66-19\n\nwas in fact effected by the Maharaja in his administrative capacity.", "canonical_name": "Maha E raja"}}, {"text": "State Departments and the Patiala State Regulations", "label": "STATUTE", "start_char": 28114, "end_char": 28165, "source": "regex", "metadata": {}}, {"text": "Maha E raja", "label": "OTHER_PERSON", "start_char": 28791, "end_char": 28802, "source": "ner", "metadata": {"in_sentence": "The Chairman of the Board of Directors put up a note to the Maha E raja of Patiala underneath :\n\n\"I respectfully request that the recommendations of the Board of Directors of the Bank, as stated above, may graciously be sanctioned.\"", "canonical_name": "Maha E raja"}}, {"text": "Patiala G\n\nState Regulations", "label": "STATUTE", "start_char": 29263, "end_char": 29291, "source": "regex", "metadata": {}}, {"text": "Maharaj", "label": "OTHER_PERSON", "start_char": 29556, "end_char": 29563, "source": "ner", "metadata": {"in_sentence": "On this the Cabinet supported the recommendations of the Finance Committee and submitted the Slime to the Maharaj a.\n\nThese recommendations were accepted by the Maharaja on April 8, 1941.", "canonical_name": "Maha E raja"}}, {"text": "April 8, 1941", "label": "DATE", "start_char": 29623, "end_char": 29636, "source": "ner", "metadata": {"in_sentence": "On this the Cabinet supported the recommendations of the Finance Committee and submitted the Slime to the Maharaj a.\n\nThese recommendations were accepted by the Maharaja on April 8, 1941."}}, {"text": "July 19, 1940", "label": "DATE", "start_char": 29702, "end_char": 29715, "source": "ner", "metadata": {"in_sentence": "H ..\n\nIt may be noted that the Order issued by the Maharaja on July 19, 1940, viz.,"}}, {"text": "Patiala State", "label": "ORG", "start_char": 29953, "end_char": 29966, "source": "ner", "metadata": {"in_sentence": "It states that by reason of the fact that the Patiala State Bank is an autonomous department it became necessary to define how far the rules applying to other State departments and the Patiala State\n\nRegulations applied to the Bank."}}, {"text": "Two important exceptions were made and those were that the Patiala State Regulations", "label": "STATUTE", "start_char": 30180, "end_char": 30264, "source": "regex", "metadata": {}}, {"text": "April II, 1941", "label": "DATE", "start_char": 30882, "end_char": 30896, "source": "ner", "metadata": {"in_sentence": "This was dated April II, 1941."}}, {"text": "State Bank of Patiala", "label": "ORG", "start_char": 31036, "end_char": 31057, "source": "ner", "metadata": {"in_sentence": "It is therefore clear that the extension of the rules governing the conditions of service of Government servants to the employees of the State Bank of Patiala was the result of 'an extension' made by the Maharaja pursuant to the executive power vested in him."}}, {"text": "art. 311", "label": "PROVISION", "start_char": 31515, "end_char": 31523, "source": "regex", "metadata": {"statute": null}}, {"text": "Saurashtra Government", "label": "ORG", "start_char": 31996, "end_char": 32017, "source": "ner", "metadata": {"in_sentence": "This was a case of compulsory retirement under r. 165-A of the Bombay Civil Services Rules as amended by the Saurashtra Government."}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 32586, "end_char": 32597, "source": "regex", "metadata": {"statute": null}}, {"text": "Venkatarama Aiyar", "label": "JUDGE", "start_char": 32599, "end_char": 32616, "source": "ner", "metadata": {"in_sentence": "311(2), Venkatarama Aiyar J., took the precaution of adding that 'questions of the said character coul<; i arise only when the rules fix both an age of superannuauon and an age for compulsory retirement and the services o_f a civil servant arc tenninated between these two points of time."}}, {"text": "art. 311(2)", "label": "PROVISION", "start_char": 33093, "end_char": 33104, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 311(2)", "label": "PROVISION", "start_char": 33268, "end_char": 33279, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 311(2)", "label": "PROVISION", "start_char": 33620, "end_char": 33631, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 311(2)", "label": "PROVISION", "start_char": 33788, "end_char": 33799, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 14", "label": "PROVISION", "start_char": 34044, "end_char": 34051, "source": "regex", "metadata": {"statute": null}}, {"text": "States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 34366, "end_char": 34397, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "cl. 3", "label": "PROVISION", "start_char": 34773, "end_char": 34778, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisation Act, 1956", "statute": "the States Reorganisation Act, 1956"}}]}
{"document_id": "1966_3_500_516_EN", "year": 1966, "text": "GENERAL ASSURANCE SOCIETY Ltd.\n\nCHANDUMULL JAIN AND ANR.\n\nFebruary 7, 1966 [P. B. GAJENDRAGADKAR, C. J., K. N. WANCllOO, M.\n\nHIDAYATULLAH, V. RAMASWAMI AND P. SATYANARAYANA\n\nRAJU, JJ.]\n\nlnsurcuzce-Accep1'111ct' and covers notes issued by insurer-J'olicy\n\n1101 i.ssued--Conditions of policy whether applicable to contract-Condition ttllowing parties to cancel contrc1c1 whether reasonab/e--Cancel/ation by\n\ninsurer u•hen alid.\n\nLetters of acceptance of the proposals and cover notes were isued by the appellant Society purporting to insure certain houses belonging to the respondents against damage from fire, flood etc.\n\nAccording to the covernotes the insurance was subject to the 'usual conditions of the Society\"s polices.' However, the Society had not issued the policies by the time the Ganges, near the banks of which the houses stood, began to got into flood.\n\nSoon thereafter the society cancelled the risk. relying on condition ( 10) of its Fire policy.\n\nThe houses were washed away and the rc:, pondents filed a suit in the High Coun demanding payment under the policies.\n\nThe trial Judge dismissed it but the High Court decreed it.\n\nThe questions that fell for determination were, whether Condition (10)\n\nof the Fire policy was applicable to tho facts of the case, whether the said condition wa<; reasonable, and v.1hether 1hc cancellation of the policy by the society was valid :\n\nHfil..D: (i) Looking at tho proposal, the letter of acceptance and the cover notes it was clear that a contract of insurance under the ;:; tandard policy of fire and extended to cover flood, cyclone, etc., had come into being.\n\nThe fact that the policy was not actually delivered made no difference becau<; e when a contract of insurance is complete, it is in1materi:!l whether tho policy is actually delivered after the loss, and for the same reason the rights of the parties arc governed by the policy lo be, between acceptance and delivery of the policy.\n\nEven if no terms are spccifted the term~ contained in a policy cust-Omarf-ly issued in such a case, apply.\n\nJn the present caS\"e the cover notes clearly said that the usual terms of the society's\n\npolicie~ would apply.\n\nCondition (JO) was a usual condition of such policies and therefore 1t could be invoked by the Society.\n\n[510 B: 51~\n\nD-GJ\n\n(ii- There i\" nothin~ wrong in incJuding in a. contract or inurance a mutual condition for the cancellation of the contract.\n\nCondition ( 10) of the Fire policy gave equal right< of cancellation to both panics and was not unreasonable.\n\n[513 B-C)\n\n(iii) A condition such a<; Condition (10) is intended lo cancel the risk but not to avoid liability for Joss which has taken place. or to avoid risk when it i<1 alrcadv turning into a loss.\n\nCancellation is rea'ionab1y possible before the liability under the policy has commenced or h.., become\n\ninevitable, and it is a qtion of fact in each CMO whether the cancellation is legitimate or illegitimate.\n\nOn the facts of the case it could not tie said that the societv cancelled the policies after the loss had already commenced or had hecome inevitable.\n\nThe cancellation was therefore vaM.\n\n[514 H-515 C: 515 GJ\n\n' \"' '\n\n'7\n\nSun Fire Office v. Hart &: Ors. (1889) 14 A. C. 98 a d The Central Bank of India v. Hartford Fire Insurance Co. Ltd. n. I. R.\n\n(1956) S. C. 1_288, relied on.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 886 of 1963.\n\nAppeal from the judgment and decree dated 13th/14th July, 1961 of the Calcutta High Court in Appeal No. 44 of 1959.\n\nC. B. Agarwala, B. M. Agarwala and I. N. Shroff, for tile appellant .\n\nNiren De, Additional Solicitor General, G. L. Sanghi, Nirmal Kumar Ghosal, J.B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nHidayatullah J. This appeal is taken from a judgment of the High Court of Calcutta, July 13 and 14, 1961, by which a Divisional Bench of the High Court, reversing the judgment of a learned single Judge of the same Court, decreed the respondents' claim for damages. The circumstances were these. The appellant is a general insurance company. On June 2, 1950 the respondents submitti!d proposals to the company with a view to insuring certain houses in Dhullian bearing Holding Nos. 274, 274/-A-B-C-and D and 273, 273/A-B-C and D, for Rs. 51,000 and Rs. 65,000 respectively against fire and including loss or damage by cyclone, flood and/ or change of course of river or erosion of river, landslides and subsidence. The town of Dhulian is situated on the banks of the Ganges and for several years the river had been changing its course and in 1949 a part of the town was washed away. The insurance was obviously effected with this risk in sight. The period of insurance was to be from June 3, 1950 to June 2, 1951. The Company accepted the proposals by two letters (Ex. D.) on June 3, 1950 and the letters stated that in accordance with the proposal the assured was held covered under cover notes enclosed with the letters. At the back of these letters of acceptance, there was description of the houses and an endorsement which read:\n\n\"Including Cyclone, Flood and/or loss by change of course of river diluvium and/or Erosion of River Landslide and/or subsidence. It is further noted that there is a thatched building of residence within 50 ft. of the above premises.\" Two interim protection cover notes Nos.~18848 and 18850 in respect of the two proposals were filed by the insurance company along with the written statement and they were said to be copies of cover notes sent with the letters of acceptance, but they bore the date June 5, 1950. There is some dispute as to whether they were at all enclosed with the reply showing aceeptance of the proposals.\n\nMIOSup. Cl/66 ·· 2\n\n502 SUPREME COURT Rl!POllTS\n\n[ 1966] 3 S.C.R.\n\nOf the two cover notes, which are identical except for details we may read one only:\n\n\"Messrs. Chandmull Lal Chand, P.O.\n\nDhulian Murshidabad being desirous to effect an Insurance from loss by Fire, for Rs. 51,000 on the following Property viz.:\n\nOne Pucca built and roofed bldg. (C. J. Vizandah) holding No. 274, 274A, 274B and 274C occpd. as residence and/or shop for the storage of Hydrogenated G nut oil\n\n(vanaspati) and safety matches also situate at Dhulian, Ward No. IV, District Murshidabad.\n\nIncl. Loss or damage by cyclone flood and/or change c of course of river and/or Erosion of river, landslides and/or subsidence.\n\nIt is further noted that there is a thatched bldg. of residence within 50 ft. of the above premises.\n\nfor one year from 3rd June, 1950 to 3rd June, 1951.\n\nThe said property is hereby held insured against damage by Fire, subject to the terms of the Applicant's proposal and to the usual Conditions of the Society's policies. It is, however, expressly stipulated that this protection Note cannot, under any circumstances be applicable for a longer period than Thirty Days, and that it is also immediately terminated before that date by delivery of the policy, or ifthe Risk be declined by the notification of such declinature.\n\nPrem : Rs. 892-8-0 Fire @. 28 as ~~\n\nPrem : Rs. 382-8-0 Flood and other risks 12 as%\n\nPremium : Rs. 1,275-0-0.\"\n\nOn June 7, the assured sent the premia by cheque. As no policy\n\nwas received by them, the assured wrote a letter on July I (Ex. A/g) G asking for the policy or for extension of the cover notes. This was not done.\n\nOn July 6, 1950 th~ Company wrole to the assured two identicallv worded letters (except for changes in amounts and numhers of ihc policis) which read• ..\n\nCalcutta 6th July. 1950 . .......... .\n\n1 '\n\n' l\n\nA To\n\nM/s Chandmull Lal Chand, P.O. Dhulian, Murshidabad.\n\nDear Sir,\n\nIn accordance with the inspection report lodged with this Co. we cancel the risk from 6th July, 1950 as noted c below.\n\nThe relative Endorsement is under preparation and will be forwarded to you in due course.\n\nNature of Alteration:\n\nYours faithfully,\n\n(Sd.)/- Illegible Ag.\n\nManager & Underwriter.\n\nThe above cover note is cancelled by the General Assurance Society Ltd. as from 6th July, 1950.\"\n\nE On July 15, 1950 the assured wrote to say that they held the Company bound because although there was no erosion by the river when the proposals were submitted and accepted, the Company was trying to get out of the contract when the river was eroding the banks. They ended this letter by saying:\n\n\"Now when the erosion and/or change of course of F river and/or subsidence have commenced, it is quite impossible to take any precautionary measure or to reinsurc the same with any other office of Insurance at this stage.\"\n\nOn July 17, 1950 the Company prepared an endorsement for the policies cancelling the risk and sent the endorsements to the assured.\n\nThe endorsement read: ..\n\nIn the name of :-Messrs. Chandmull Lal Chand, P.O.\n\nH Dhulian, Murshidabad.\n\nIt is hereby declared and agreed that as from 6th July 1950 the insurance by this policy is cancelled by The General\n\n584 SUPl.BMB COVRT l.BPOaTS\n\n(1966) 3 S.C.R.\n\nAssurance Society Ltd., Calcutta, and a refund premium of Rs. . . . . . . . . . is hereby allowed to the assured on a pro rata basis.\n\n(St!)/- Illegible.\n\nAg. Manager &: Underwriter.\n\nCalcutta,\n\nIn reply the latter said that as the risk had already \"commenced\"\n\nand \"taken place\", there could be no cancellation as there wa~ no time left for the assured to take precautionary measures by reinsuring. In reply the Company referred to condition JO of the P'ire c policy under which the Company claimed to cancel the policy at any time.\n\nConditic.n JO of the fire Policy read:\n\n\"10. This insurance may be terminated at any time at the request of the Insured, in which case the Society will retain the customary short period rate for the time the policy has been in force.\n\nThis insurance may also D at any time be tt:rminated at the option of the Society, on notice to that effect being given to the Insured, in which case the Society shall be liable to repay on demand a ratable proportion of the premium for the unexpired terme from the date of the cancclment.\"\n\nIn reply the assured wrote on August 2 .that the condition did not apply to any risk except that of fire and could not, in any event, protect the Company after the risk had commncced. On 13th and 15th August the houses were washed away.\n\nAfter unsuccessfully demanding payment under the policies, the assured filed the present suit on the Original Side of the Calcutta High Court. It was dismissed with costs by G. K. Mitter J. but on appeal the claim was decreed to the extent of Rs. 1,10,000 with costs, the decretal amount to carry interest at 3 % per annum. The High Court certified the case as fit for appeal and the present appeal has 1-n filed by the Company.\n\nBefore we deal with the question in dispute we may say a ftvr words about the position of the Gange-; river in relation to ae\n\nDhulian town in general and the insured houses in particalar.\n\nThe town of Dhulian is situated on the bank of the river vrhich, for several years, has been changing its course and eroding the bank on the side of Dhulian. In 1949 there was much erosion and the river had come as close as Ii to 2 furlongs from the town and a few of the godowns lying close to the hank had been washed away.\n\nThere is ample material to show what the condition of the river in relation to the insured houses was between June 2, 1950 when the proposal for insurance was made and August 13/15 when the houses\n\nwere washed away, with particular reference to the 18th June, 1950 when one P. K. Ghose (D.W. 2) visited Dhulian to make local iaquiries on behalf of the Company and the 6th July when the Company cancelled the riil' and withdrew the cover. The evidence comes from both sides but is mostly consistent. Lalchand Jain (P.W. 1) for the assured stated that on the 2nd of June the houses were 400/450 feet away from the bank of the river (Q. 73) and on tliat date there was no erosion because the river was quite calm (Q. 132). This continued to the second week of June (Q. 136).\n\nThe river began to rise in the 3rd week of June but there was no eroliion (Q. 137). Erosion began by the end of June (Q. 142) aad the current was then swift (Q. 144) and the right bank started to be washed away. Houses within 10-50 feet of the bank were first alfccted in the last week of June (Q. 180). At that time the insured hou11ei; were 400/450 feet away. Even on July 15, 1950 the distance between these houses and the river was 250 feet (Q. 179). Surendranath Bhattacharjee (P.W. 2), Overseer and Inspector, Dhulia Municipality 11tated that the erosion started four or five days afte1 Rathajatra which took place on or about June 20, 1950. Bijoy Kumar (P.W. 4), Retired Superintending Engineer is an important witne11s.\n\nHe submitted three reports Exs. F, G and H to Government on May 27, 1949, November 4, 1949 and September 11, 1950.\n\nIn these reports he gives a description of the scouring of Dhulian town on August 5, 1950. He said nothing about the state of affairs in the first week of July which he would undoubtedly have said if er<>iion had already begun then. With his report submitted on September 11, 1950, he sent a letter of 9th August, in which he said tb.at he had visited Dhulian Bazar on August 5, 1950 and found that tile iCOUring of the compound of the Police Station at the junction of the Ganges and Bagmari rivers had begun a fortnight earlier and that scouring must have been at the rate of 20-25 feet per day.\n\nFrom this evidence it is possible to form an opinion about state of the river on or about July 6, 1950. To that we shall come later.\n\nThe learned single Judge at the trial held that condition 10 of the policy applied to all the risks covered by the policy and not the risk from fire only. Although the policy was not ready, the proposal not having been declined during the period of the cover note, the learned Judge held, the policy was bound to issue and the extent of the protection would thus be according to the company's usual terms and subject to the conditions in the policy. Relying, therefore, upon the dicta of the Judicial Committee in the Sun Fire Office v. Hart & Ors.(1), the learned Judge gave a wide meaning to condition 10 and held that the Company was within its rights in cancelling the policy as and when it did. The learned Judge pointed out that the condition was a usual provision in a policy of fire insurance and an assurer cancelling the policy under that\n\n(I) (1889) 14 A. C. 98.\n\nSUPREME COURT REPORTS\n\n[1966] 3 S.C.R.\n\ncondition, need give no reasons and every defence was open to him and the reasons, if given, could not be examined in a court of law. Finally, the fact that no reasons were given or that the report of Ghose was not produced or that Ghose did not support Dangnli, the Manager, was held to be immaterial because reasons like motives_, were held to be immaterial. The suit was accordingly dismissed with costs. An appeal under the letters patent was filed against the judgment of the learned single Judge.\n\nThe appeal was heard by P. B. Mukharji and S. K. Dalla JJ.\n\nThe judgment on appeal was delivered by Mukharji J.\n\nIn dealing with the cancellation of the policy the learned Judge considered the matter with and without condition 10. He first considered whether condition JO of the policy at all applied. The learned Judge gave eight reasons why it did not. To those reasons we will come presently. The conclusion of the learned Judge was that the policy had not come into existence and did not govern this contract of insurance. As the cover note was only for a month and on its terms had ceased to be operative, a contract of insurance absolute for one year W'lS spelled out from the letter of acceptance which was said to govern the relations of the parties between July 3, 1950 (the date of the expiry of the cover note) and July 6, 1950 (when the policy was cancelled) and till 13/15th August, 1950 when the houses were washed away.\n\nCondition 10 was thus held to be not applicable. However, assuming that it did, the learned Judge held that it was unreasonable and the concellation having been done when the loss had already commenced or became so proximate that it could be said to have almost commenced, the Company could not be allowed to invoke it. In reaching this conclusion the decision 0f the Judicial Committee was not accepted and the width of the condition was cut down. In the result the claim of the assured was decreed in the sum of Rs. I, 10,000 with costs in the appeal and the suit.\n\nThere is a preliminary question of fact to which the courts below have addressed themselves. It is whether the cover notes accompanied the letters of acceptance of the proposals. The learned single Judge seems to imply that they did and the Division Bench holds that they did not. This has led to a divergence of opinion on whether condition 10 of the Fire Policy which enables determination of the policy at will on both sides, at all operated. How this finding leads to a discussion on the applicability of condition 10, is a very important circumstance and we shall now attempt to do, what we have not done yet, namely, analyse the reasons given in the two decisions of the High C'our.t.\n\nThe letters of acceptance stale that the \"relative cover\" in each case was enclosed. These letters were dated June 3, 1950 and stated that the assured was covered against risk from June 3, 1950\n\n, •\n\nto June 3, 1951 and the endorsement at the back of the letters has been reproduced by us earlier. That endorsement did not state any terms and it did not refer to the terms or conditions of any policy. The cover notes, of which one has also been reproduced in full, held the property insured for a period of 30 days only \"subject to the terms of the applicants' proposal and to the usual conditions of the Societies Policies\". The learned single Judge held that the letters of acceptance incorporated and attracted by reference the terms and conditions of the cover notes and through them the terms and conditions of the policy and further held that the relationship could be declined within 30 days under the terms of the cover note but if not so declined, the relationship would be governed by the terms and conditions of the policy for the whole of the period of insurance. In reaching this conclusion the learned single Judge held that the cover notes must have accompanied the letters of acceptance and in this way condition 10 was allowed to play its part.\n\nThe Divisional Bench took a different view of the matter. The learned Judges noted that the letters of acceptance spoke of risk for a whole year and stated that the \"relative covers\" were enclosed.\n\nThe cover notes, it was pointed out, bore the date 5th June and must have been sent later than June 3rd, the date of the acceptance of the proposals. The learned Judges observed that the \"relative cover\" ought to have been a cover for a whole year and if it was for a month only it could not be a \"relative cover\" because the letter of acceptance undertook the risk for the whole year. Next they held that as the cover notes did not accompany the letters of acceptance, there was no notice to the assured that the terms and conditions of any policy would govern the contract'. They found fault with the word 'policies' in the phrase 'usual conditions of the Societies policies' because the word indicated a plurality of policies and not a standard policy. They commented that the standard fire policy applied condition 10 to fire risk and not to risk by flood, cyclone etc. They found the expression 'the said properties are hereunder held insured for damage by fire' insufficient to cover other risks although they admitted that the cover notes spoke of loss or damage by flood, cyclone etc. They next pointed out that the words of the cover note were not \"all the conditions of the policy\" but only \"usual conditions\" and by referring to books on the law of insurance they concluded that condition 10 which gave a right to either party to terminate the policy at will, could not be considered a 'usual' condition. They observed that this was not a condition usually included in English policies and appeared to be in vogue in colonial and underdeveloped countries. They felt that if the fire policy was extended to cover risk of flood, etc., the new risks should have been made expressly subject to condition 10 just as fire risk was made subject to it and that by merely extending a\n\n508 SUPllBMB COOR r llBPOll rs\n\n(1966) 3 S.C.ll.\n\nfire policy to cover other risks, the assured was made to amend A and construe each separate clause.\n\nHolding condition 10 to be l!DICUOnable they held that the company could not cancel the policy on the 6th July because till then there was no policy in existence and the cover note which referred to the policy had automatically worked itself out. They finally held that the cancellation, in any event, was after the risk bad commenced and could not be upheld.\n\nB For these reasons the claim was decreed. The Trial Judge had found that there was no attempt to fix the amount of damages but the Divisional Bench reconsidered the matter and gave its own find ings.\n\nAlthough the DiTisional Bench went i1:1to a detailed discussion (some of which was perhaps not altogether necessary) the problem C of liability in thi1> case was well-scanned by counsel appearing for the p11rties. They argued the case under three distinct heads which arc:\n\n(a) Did condition 10 apply to the facts;\n\n(b) If it did, how ii it •o be construed; and\n\n(c) Was the cancellation of the policy valid in law?\n\nWe ahall consider the matter under these three broad heads.\n\nThe application of condition 10 depends on how far the terms of Ille policy can be 1>aid to be incorporated in this contract of insurance bctwten the parties. The facts relating to the formation of the contract arc clear except on the one point relating to the cover notes,\n\nud that, in our opinion, has been given undue prominence by the Diviaional Bench. It makca no essential difference whether th~ cover notei accompanied the letters of acceptance or were sent two days later. It is poSiible that the letters of acceptance themselves wc.:e sent on June 5. It often happens that two letters delivered at the 1>1me time bear different dates. The letters of acceptance referred to 'relative covers', but the word 'relative' is not to be stretched too far. Ill use here is an instance of unnecessary legalese and it docs not add to the purport of the communication that a coTCt note was being 1>Cnt. It is obvious that if in the period durins\n\nwhich the cover note was operative there was refusal to insure, the Ullurcd could not have demanded a policy or insisted that there was ianrancc without a policy, standard or otherwise, and not subject to any conditions by reason of the acceptance. The cover notes could have been sent later without imp: iring the effect of the reference to them in the letters of acceptance. By the fortuitous chance of omission to enclose the cover notes the assured did not get any additional rights under the letters of acceptance. Insurance of property is not a bet but a well-known commercial deal. Acceptance of tile proposal read with the cover notes clothed the assured with a right to demand a policy in relation to the kind of insurance he\n\n.....\n\nASSURANCE soc. v. CHANDUMULL (Hidayatu/lah, !.) 509had bought and he could only claim to be covered against risk in the manner laid down in the policy. To avoid this consequence the learned Additional Solicitor-General, arguing on behalf of the the assured, faintly suggested that the endorsement at the back of the letter of acceptance was the cover note and it did not refer to any policy. This position was clearly unsustainable. The cover notes were an integral part of the acceptance of the proposals and the two had to be read together.\n\nA contract of insurance is a species of commercial transaction! and there is a well-established commercial practice to send cover notes even prior to the completion of a proper proposal or while the proposal is being considered or a policy is in preparation for delivery. A cover note is a temporary and limited agreement.\n\nIt may be self-contained or it may incorporate by reference the terms and conditions of the future policy. When the cover note incorporateil the policy in this manner, it does not have to recite the torms and conditions, but merely to refer to a particular standard policy. If the proposal is for a standard policy and the cover note rc:Cers to it, the assured is taken to have accepted the terms of that policy. The reference to the policy and its terms and conditions aay be expressed in the proposal or the cover note or even in the letter of acceptance including the cover note. The incorporation of the terms and conditions of the policy may also arise from a combination of references in two or more documents passing between the parties. Documents like the proposal, cover note and the policy are commercial documents and to interpret them commercial habits and practice cannot altogether be ignored. During the time tile cover note operates, the relations of the parties are governed by its terms and conditions, if any. but more usually by the terms and conditions of the policy bargained for and to be issued. When tl!is happens the terms of the policy arc incipient but after the period of temporary cover, the relations are governed only by the terma and conditions of the policy unless insurance is declined in the meanti111e.\n\nDelay in issuing the policy makes no difference. The relations even then are governed by the future policy if the cover notes give sufficient indication that it would be so. In other respects there is no difference between a contract of insurance and any other contract except that in a contract of insurance there ia a requirement of uberrima fides i.e., good faith on the part of the asaurcd and the contract is likely to be construed contra proferentem that is apinst the company in case of ambiguity or doubt. A contract is fonned when there is an unqualified acceptance of the proposal.\n\nAcceptance may be expressed in writing or it may even be implied if the inaurer accepts the premium and retains it. In the case of the assured, a positive act on his part by which he recognises or seeks to enforce the policy amounts to an affirmation of it. This position was clearly recognised by the assured himself, because he wrote,\n\n\nclose upon the expiry of the time of the cover notes, that either a policy should be issued to him before that period had expired or the cover note extended in time.\n\nIn interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves.\n\nLooking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for fire and extended to cover flood, cyclone etc. had come into heing.\n\nThe letters of acceptance clearly mentioned that cover notes were being sent. The contract of imurance was based upon the cover notes for the period covered by the cover notes.\n\nNothing happened in the 30 days during which the cover notes operated. It is true that the letters of acceptance showed that the risk was covered for the whole year and not for 30 days. This was an unfortunate way of expressing that the acceptance of the proposal would operate in the first instance for 30 days only during which the company would be free to decline the policy. The four essentials of a contract of insurance are, (i) the definition of the risk, (ii) the duration of the risk, (iii) the premium, and (iv) the amount of insurance. See Macgillivray on Insurance Law (5th Edn.) Vol. I, paragraph 656, page 316.\n\nBut the policy which is issued contains more than these essentials because it lays down and measures the rights of the parties and each side has obligations which are also defined.\n\nIn a policy against fire the puroose is not so much to insure the pwperty but to insure the owner of the property against los>.\n\nThe policy not only defines the risk and iis duration but also la~, down th; 'pccial terms and conditions under which the policy may he enforced on either side.\n\nEven if the letter of acceptance went beyond the cover notes in the matter of duration, the terms and conditi0ns of the proposed policy would govern the case because when a contract of insuring property is complete, it is immaterial whether the policy is actually delivered after the loss and for the same reason the rights of the parties are governed by the policy to be, between acceptance and delivery of the policy.\n\nEven if no terms are specified the terms contained in a policy customarily issued in such ca=, would apply.\n\nThere is ample authority for the proposition. In Corpu' Juris Secundum lYol. 44, p. 953) the following occurs:\n\n\"Where the contract to insure or issue a policy of fire insurance does not specify the terms and conditions of the policy, it is a general rule that the parties will be presumed to have contemplated a form of policy containing such conditions and limitations as are usual in 5uch cases ...... \"\n\nSee also Richards on Insurance (5th fdn.) Vol. 3, p. 1296,\n\n• '\n\n;.. •\n\nparagraph 390. In Eames v. Home Insurance Co. (1) the Supreme Court of the United States observed:\n\n\"If no preliminary contract would be valid unless it specified minutely the terms to be contained in the policy to be issued, no such contract could ever be made or would ever be of any use. The very reason for sustaining such contracts is, that the parties may have the benefit of them during that incipient period when the papers are being perfected and transmitted. It is sufficient if one party proposes to be insured, and the other party agrees to insure, and the subject, the period, the amount and the rate of insurance is ascertained or understood, and the premium paid if demanded. It will be presumed that they contemplated such form of policy, containing such conditions and limitations as are usual in such cases, or have been used before between the parties. This is the sense and reason of the thing, and any contrary requirement should be expressly notified to the party to be affected by it.\n\nJn General Accident Insurance Corporation v. Cronk(2), it was also ruled that a person making a proposal must be taken to have applied for the ordinary form of policy issued by the company.\n\nIt is only when there is a condition precedent that the policy must be delivered that the assurer is not on the risk otherwise he is. See Macgillivray (Vol. I, p. 325, paragraph 675). In such a case acceptance is merely an intimation that the assurer is willing to issue a policy but there will be no binding contract (ibid paragraph 679, p. 328). In the present case, there was no such condition prtcedent and the company was on risk throughout. As insurance was asked for on the policy of the company the usual policy would have issued and as the insurance was from June 3, 1950 the policy would have related back to that date. The insurance of the policy does not add to the contract. The incipient terms and conditions of the contract , later merge in the policy and the terms and conditions then become express.\n\nThe attempt of the assured in this case, therefore, has been to establish that the cover notes having expired, did not bind the parties and the reference to the policy being in the cover notes and not in the letters of acceptance, the terms and conditions of the policy were not attracted. We are satisfied that this is not the true position.\n\nThe letters of acceptance expressly mentioned the cover notes and the cover notes expressly mentioned the policy. Therefore both during the period of 30 days when the cover notes operated and also thereafter, the terms and conditions of the policy governed the relationship between the parties. We have already held that as there\n\n-- (!) 24 Led. 298.\n\n(2) [1901] 17 T.LR. 233.\n\nSt2 SUPR.BME COURT RiPORTS\n\n(1966] 3 S.C.R.\n\nwas only oPe standard fire-policy, the use of the plural word 'policies' made no difference and the delay in sending the cover notes, if any, was also immaterial. The terms and conditions of the usual poli\"y accordingly governed the relations of the parties, and made condition IO applicable.\n\nIt was, however, contended that the policy itself never came into existence, because it was cancelled before it was issued and the endorsement of cancellation was engrossed and incorporated with the making of the policy. It was argued that condition 10 would not come into operation at all, because the policy itself was cancelled before it was engrossed. In other words, the contention is that condition ( 10) could not operate between the parties till the policy was signed and delivered to the as.5ured and as this never happened the cancellation was improper. This argument is scarcely open, because, the assured is ob•10usly basing his suit on the policy.\n\nIn his plaint he invoked the policy. The assured cannot austain tho suit except by basing it upon the policy, because unless one reads tho policy and the terms on which it was effective, mere reading of the proposals and the letters of acceptance would not give any terma. Further when a contract of insuring property is complete, it Ii immaterial whether the policy is delivered or not for the rights of the parties are regulated by the policy which ought to be delivered. fn this way also the terms and conditions of the standard fire-policy would apply even though the policy was not issued.\n\nIt was next contended that the expression \"usual conditions of the Society'' policies\" could not be read to include condition 10\n\nwhich was not a usual condition where it gives a right to tenninate the policy at will to tho company. Thia j., not correct. Such a condition is mentioned in almost all the books on the law of Insurance. See Halsbury's Laws of England (3rd Edn.) Vol. 22, PlllC 245 paragraph \"474; Macgillivray on Insurance Law (5th &In.) Vol. 2, page 963, paragraph 1981; Welford & Otter-Barry's Fire Insurance (4th Edn.) pp. 178, 179; and Richard~ on Insurance (5th Edn.) Vol. 3, p. 1759, paragraph 531. In TM Sun Fire Office\n\nv. Hart and Othersf..1) such a condition is not only mentioned but also discussed. An identical condition in a fire policy was also mentioned and discussed in a decision of this court reported in The Centr•I Bank oflndia Ltd. v. Hartford Fire Insurance Co. Ltd.(2). There was thus nothing unusual in the inclusion of such a condition in the policy and the reference to the usual conditions would, therefore, include a reference to condition (10).\n\nThis condition gives mutual rights to the parties to cancel the policy at any time. To the assurer it gives a right to cancel the policy at will. It was contended that such a condition was so unreasonable that it could not be allowed to stand. It was argued\n\n(I) [18891 t4 A.C. 98.\n\n(2) A.1.R. (19S6) S.C. 1288.\n\nD •\n\nH •\n\n' ... ,\n\n.-,\n\non the authority of Sze Hai Tong Bank Ltd. v. Rambler Cycle Co.\n\nLtd.(') that the extreme width of the condition must be cut down~ an implied limitation which was that the main object and intent of the contract should not be allowed to be defeated and that object and intent was the insuring of the property against floods and cancellation of the policy when floods llad started would defeat the main object and intent of the contract. This argument mixes up two situations. The first is a question of pure principle. There is nothing wrong in including such a mutual condition for the cucellation of the insurance. An assured may like to invoke such a condition when the policy is found to differ from the policy he agreed to accept or it contained a term or condition to which lie did not agree. He may not accept the same policy from another company to which he did not make a proposal. He may invoke this\n\ncondition if the company transfers its assets and business to another.\n\nJust as the assured may like to terminate the policy without assigning any reasons and at his will, the assurer may also do likewise.\n\nSuch a clause was considered by the Privy Council in Sun Fire Office v. Hart(2). That was a case of a policy of insurance against lire. Certain fields of sugar cane were insured against fire.\n\nAfter insurance 3 fires happened and an anonymous letter was received that more fires would take place.\n\nThe policy contained a condition that the insurers might terminate the policy by notice 'by reason of such change, or from any other cause whatever' and the insurers cancelled the policy under that condition. The object of such a condition was stated by Lord Watson to be-\n\n\" .... to enable the insurers to release themselves from their contract during its currency, leaving it in full vigour down to the time of notice. The words in which the power of determination is expressed, taken by themselves, are very wide and comprehensive. According to their primary and natural meaning, they import that, in order to justify the exercise of the power, nothing is required except the existence of a desire, on the part of the insurers, to get rid of future liability, whether such desire be prompted by causes which prevent the policy attaching, or by any other cause whatever.\"\n\nIR dealing with the further question whether any reasons should be assigned and if so assigned whether they should be such as must satisfy a court of law, it was further observed:\n\n\"The question remains whether the clause gives the insurers the right to act upon their own judgment, or whether they are bound, if so required, to allege and prove to the satisfaction of a Judge or Jury, not only that a\n\n(!) [1959] A.C. 576.\n\n(2) [1889] 14 A.C. 98.\n\n\n(1966] 3 S.C.R.\n\ndesire exists on their part, but that they have reasonable grounds for entertaining it. If the determination of the policy would be for the advantage of its business, that would obviously be a reasonable ground for the office desiring to put an end to it; and a priori, one would suppose that the insurers themselves must be the best if not the only capable judges of what will benefit their business.\n\nAn insurance office may deem it prudent, and resolve to limit its outstanding engagements, and, unless the words of the clause clearly imply the contrary, it cannot be presumed that the parties meant to make such a question of prudent administration the subject of inquiry in a court of law.\"\n\nThe learned Judges of the Divisional Bench did not follow the decision of the Judicial Committee because they found it unacceptable. But a similar view of an identical condition was taken by this Court in the Hartford Fire Insurance Co. case {I). Sarkar J. there pointed out that a clause in this form was a common term in policies and must therefore be accepted as reasonable and that the right to terminate at will cannot, by reason of the circumstances, be read as a right to terminate for a reasonable cause. In that case the Hartford Office insured certain goods against fire between March 20, 1947 and March 1948 in the town of Amritsar. The policy was extended to loss by riot or civil commotion. Riots occurring in July 1947 in the Punjab, a godown in Bakarwana Bazar in Amritsar where insured goods were stored was looted and some goods were lost. The Hartford Otlicc was informed and on August 7, 1947 they wrote saying that the goods be removed to a safe place or the policy would stand cancelled after August 10, 1947, under condition 10 which was similar to condition 10 here. On August 15, 1947, the goods were lost by fire.\n\nThe Hartford Office was held to be protected by the said condition. The reason of the rule appears to be that where parties agree upon certain terms which are to regulate their relationship, it is not for the court to make a new contract, however reasonable, if the parties have not made it for themselves. The contract here gave equal rights to tk parties to cancel the policy at any time and the assurers could therefore invoke the condition to cancel the policy.\n\nG It was contended (and it has been so held by the Divisional Bench) that this cancellation was ineffective, because risk had already commenced and the policy could not be cancelled after the liability of the company began.\n\nAs a general proposition, this i< perfectly right. Condition JO is intended to cancel th~ risk but 1wt to avoid liability for loss which has taken place or to avoid II risk which is :<.!ready turning into lo$S.\n\nIt is ohl'ious that\n\n(I) A.l.R. 1956 S.C. 1288.\n\nIJ; • '\n\nJ. •• ~.\n\nASSURANCE soc. v. CHANDUMULL (Hidayatul/ah, /.) 515\n\na fire policy cannot be cancelled after the house has caught fire.\n\nBut it is equally clear that unless the risk has already commenced or hrui become so imminent that it must inevitably take place, such a clause can be invoked. If property is insured against flood, it is not open to the insurance company to send couriers on motor cycles ahead of the floods to cancel the policy. But if it is thought that a particular dam was not quite safe, the insurance company will be entitled to cancel the policy against flood before the dam has actually started to crumble or has crumbled. Cancellation is reasonably po11sible before the liability under the policy has commenced or has become inevitable and it is a question of fact in each case whether the cancellation is legitimate or illegitimate.\n\nIn the present case, it was always clear that the Ganges would get into the floods in the rainy season, but it was not clear that it would begin to erode the bank in such a way that these houses, which were at a distance of 400/500 feet from the bank would inevitably be washed away. The question thus is whether the cancellation was done after liability of the assurer under the policy had commenced or the loss had become inevitable. Here we must look at the evidence which was summarized earlier.\n\nWe are concerned with two dates in particular and they are June 18, 1950 when Ghose visited Dhulianand July6 when the policy was cancelled. The houses according to Lalchand Jain (P.W. 1) were 400/500 feet away when the proposal was made. The river remained calm till the second week of June. It only began to rise in the third week of June. Thus on June 18, when Ghose visited the place, there was no flood and no erosion. Ghose's report has not been produced but he could have only estimated the possibility ofloss and no more. Even in the third week of June there was no erosion and it began by the end of June. Even on July 15 the distance between the river and the houses was 250 feet (see Q. 179).\n\nAs the rate of erosion was about 20/25 feet per day (vide Bijoy Kumar P.W. 4) the houses were 400/500 feet away even on July 6.\n\nIn these circumstances, it cannot be said that the loss had commenced or that it had become so certain as to be inevitable or that the cancellation was done in anticipation and with knowledge of inevitable loss. The cancellation was done at a time when no one could say with any degree of certainty that the houses were in such danger that the loss had commenced or became inevitable. There is no evidence to establish this. This case, therefore, falls within the rule of the Sun Fire Office(!) and the Hartford Fire Insurance Company( 2) cases. The assurers were, therefore, within their rights under condition JO of the policy to cancel it. As the policy was not ready they were justified in executing it and cancelling it. The right of the plaintiff to the policy and to enforce it was lost by the legal sction of cancellations.\n\n(1) [1889] 14 A.C. 98.\n\n(2) A.LR. 1956 S.C. 1288.\n\n516 SUPJlllMll C8tJllT JlllPOJlTS\n\n[ 1966] 3 S.C.R.\n\nIn the result the appeal must succeed. It is allowed. The decree passed by the Divisional Bench is set aside and the judgmeat -of G. K. Mitter, J. dismissing the suit is restored. Althou&h com\n\nmost follow the event, we thinlc in the special circumstanoes of this case we should make no order about costs.\n\nAppeal allowed.\n\nMIOSup.Cl/6' 25,00- 28·1-67- GIPf.", "total_entities": 76, "entities": [{"text": "GENERAL ASSURANCE SOCIETY Ltd", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "GENERAL ASSURANCE SOCIETY LTD", "offset_not_found": false}}, {"text": "CHANDUMULL JAIN AND ANR", "label": "RESPONDENT", "start_char": 32, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "CHANDUMULL JAIN AND ANR", "offset_not_found": false}}, {"text": "February 7, 1966", "label": "DATE", "start_char": 58, "end_char": 74, "source": "ner", "metadata": {"in_sentence": "February 7, 1966 [P. B. GAJENDRAGADKAR, C. J., K. N. WANCllOO, M.\n\nHIDAYATULLAH, V. RAMASWAMI AND P. SATYANARAYANA\n\nRAJU, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 76, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "HIDAYATULLAH", "label": "JUDGE", "start_char": 125, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "HIDAYATULLAH", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 139, "end_char": 151, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "RAJU, JJ.", "label": "JUDGE", "start_char": 174, "end_char": 183, "source": "metadata", "metadata": {"canonical_name": "P. SATYANARAYANA RAJU", "offset_not_found": false}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3328, "end_char": 3356, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 3460, "end_char": 3479, "source": "ner", "metadata": {"in_sentence": "Appeal from the judgment and decree dated 13th/14th July, 1961 of the Calcutta High Court in Appeal No."}}, {"text": "C. B. Agarwala", "label": "LAWYER", "start_char": 3507, "end_char": 3521, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, B. M. Agarwala and I. N. Shroff, for tile appellant .", "canonical_name": "C. B. Agarwala"}}, {"text": "B. M. Agarwala", "label": "LAWYER", "start_char": 3523, "end_char": 3537, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, B. M. Agarwala and I. N. Shroff, for tile appellant .", "canonical_name": "C. B. Agarwala"}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 3542, "end_char": 3554, "source": "ner", "metadata": {"in_sentence": "C. B. Agarwala, B. M. Agarwala and I. N. Shroff, for tile appellant ."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 3578, "end_char": 3586, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor General, G. L. Sanghi, Nirmal Kumar Ghosal, J.B. Dadachanji, 0."}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 3618, "end_char": 3630, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor General, G. L. Sanghi, Nirmal Kumar Ghosal, J.B. Dadachanji, 0."}}, {"text": "Nirmal Kumar Ghosal", "label": "LAWYER", "start_char": 3632, "end_char": 3651, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor General, G. L. Sanghi, Nirmal Kumar Ghosal, J.B. Dadachanji, 0."}}, {"text": "J.B. Dadachanji", "label": "LAWYER", "start_char": 3653, "end_char": 3668, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor General, G. L. Sanghi, Nirmal Kumar Ghosal, J.B. Dadachanji, 0."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 3670, "end_char": 3682, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor General, G. L. Sanghi, Nirmal Kumar Ghosal, J.B. Dadachanji, 0."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 3687, "end_char": 3702, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the respondents."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 3770, "end_char": 3782, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatullah J. This appeal is taken from a judgment of the High Court of Calcutta, July 13 and 14, 1961, by which a Divisional Bench of the High Court, reversing the judgment of a learned single Judge of the same Court, decreed the respondents' claim for damages.", "canonical_name": "HIDAYATULLAH"}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 3830, "end_char": 3852, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatullah J. This appeal is taken from a judgment of the High Court of Calcutta, July 13 and 14, 1961, by which a Divisional Bench of the High Court, reversing the judgment of a learned single Judge of the same Court, decreed the respondents' claim for damages."}}, {"text": "June 2, 1950", "label": "DATE", "start_char": 4114, "end_char": 4126, "source": "ner", "metadata": {"in_sentence": "On June 2, 1950 the respondents submitti!d proposals to the company with a view to insuring certain houses in Dhullian bearing Holding Nos."}}, {"text": "Dhullian", "label": "GPE", "start_char": 4221, "end_char": 4229, "source": "ner", "metadata": {"in_sentence": "On June 2, 1950 the respondents submitti!d proposals to the company with a view to insuring certain houses in Dhullian bearing Holding Nos."}}, {"text": "Dhulian", "label": "GPE", "start_char": 4496, "end_char": 4503, "source": "ner", "metadata": {"in_sentence": "The town of Dhulian is situated on the banks of the Ganges and for several years the river had been changing its course and in 1949 a part of the town was washed away."}}, {"text": "June 3, 1950", "label": "DATE", "start_char": 4753, "end_char": 4765, "source": "ner", "metadata": {"in_sentence": "The period of insurance was to be from June 3, 1950 to June 2, 1951."}}, {"text": "June 2, 1951", "label": "DATE", "start_char": 4769, "end_char": 4781, "source": "ner", "metadata": {"in_sentence": "The period of insurance was to be from June 3, 1950 to June 2, 1951."}}, {"text": "June 5, 1950", "label": "DATE", "start_char": 5602, "end_char": 5614, "source": "ner", "metadata": {"in_sentence": "Two interim protection cover notes Nos.~18848 and 18850 in respect of the two proposals were filed by the insurance company along with the written statement and they were said to be copies of cover notes sent with the letters of acceptance, but they bore the date June 5, 1950."}}, {"text": "Chandmull Lal Chand", "label": "PETITIONER", "start_char": 5893, "end_char": 5912, "source": "ner", "metadata": {"in_sentence": "Cl/66 ·· 2\n\n502 SUPREME COURT Rl!POllTS\n\n[ 1966] 3 S.C.R.\n\nOf the two cover notes, which are identical except for details we may read one only:\n\n\"Messrs. Chandmull Lal Chand, P.O.\n\nDhulian Murshidabad being desirous to effect an Insurance from loss by Fire, for Rs.", "canonical_name": "Chandmull Lal Chand"}}, {"text": "3rd June, 1950", "label": "DATE", "start_char": 6548, "end_char": 6562, "source": "ner", "metadata": {"in_sentence": "for one year from 3rd June, 1950 to 3rd June, 1951."}}, {"text": "3rd June, 1951", "label": "DATE", "start_char": 6566, "end_char": 6580, "source": "ner", "metadata": {"in_sentence": "for one year from 3rd June, 1950 to 3rd June, 1951."}}, {"text": "Calcutta", "label": "GPE", "start_char": 7536, "end_char": 7544, "source": "ner", "metadata": {"in_sentence": "On July 6, 1950 th~ Company wrole to the assured two identicallv worded letters (except for changes in amounts and numhers of ihc policis) which read• ..\n\nCalcutta 6th July."}}, {"text": "Chandmull Lal Chand", "label": "PETITIONER", "start_char": 7596, "end_char": 7615, "source": "ner", "metadata": {"in_sentence": "1 '\n\n' l\n\nA To\n\nM/s Chandmull Lal Chand, P.O. Dhulian, Murshidabad.", "canonical_name": "Chandmull Lal Chand"}}, {"text": "Murshidabad", "label": "GPE", "start_char": 7631, "end_char": 7642, "source": "ner", "metadata": {"in_sentence": "1 '\n\n' l\n\nA To\n\nM/s Chandmull Lal Chand, P.O. Dhulian, Murshidabad."}}, {"text": "July 17, 1950", "label": "DATE", "start_char": 8580, "end_char": 8593, "source": "ner", "metadata": {"in_sentence": "On July 17, 1950 the Company prepared an endorsement for the policies cancelling the risk and sent the endorsements to the assured."}}, {"text": "6th July 1950", "label": "DATE", "start_char": 8859, "end_char": 8872, "source": "ner", "metadata": {"in_sentence": "It is hereby declared and agreed that as from 6th July 1950 the insurance by this policy is cancelled by The General\n\n584 SUPl."}}, {"text": "13th and 15th August", "label": "DATE", "start_char": 10226, "end_char": 10246, "source": "ner", "metadata": {"in_sentence": "On 13th and 15th August the houses were washed away."}}, {"text": "G. K. Mitter", "label": "JUDGE", "start_char": 10451, "end_char": 10463, "source": "ner", "metadata": {"in_sentence": "It was dismissed with costs by G. K. Mitter J. but on appeal the claim was decreed to the extent of Rs."}}, {"text": "August 13/15", "label": "DATE", "start_char": 11392, "end_char": 11404, "source": "ner", "metadata": {"in_sentence": "There is ample material to show what the condition of the river in relation to the insured houses was between June 2, 1950 when the proposal for insurance was made and August 13/15 when the houses\n\nwere washed away, with particular reference to the 18th June, 1950 when one P. K. Ghose (D.W. 2) visited Dhulian to make local iaquiries on behalf of the Company and the 6th July when the Company cancelled the riil' and withdrew the cover."}}, {"text": "18th June, 1950", "label": "DATE", "start_char": 11473, "end_char": 11488, "source": "ner", "metadata": {"in_sentence": "There is ample material to show what the condition of the river in relation to the insured houses was between June 2, 1950 when the proposal for insurance was made and August 13/15 when the houses\n\nwere washed away, with particular reference to the 18th June, 1950 when one P. K. Ghose (D.W. 2) visited Dhulian to make local iaquiries on behalf of the Company and the 6th July when the Company cancelled the riil' and withdrew the cover."}}, {"text": "P. K. Ghose", "label": "WITNESS", "start_char": 11498, "end_char": 11509, "source": "ner", "metadata": {"in_sentence": "There is ample material to show what the condition of the river in relation to the insured houses was between June 2, 1950 when the proposal for insurance was made and August 13/15 when the houses\n\nwere washed away, with particular reference to the 18th June, 1950 when one P. K. Ghose (D.W. 2) visited Dhulian to make local iaquiries on behalf of the Company and the 6th July when the Company cancelled the riil' and withdrew the cover."}}, {"text": "Lalchand Jain", "label": "WITNESS", "start_char": 11723, "end_char": 11736, "source": "ner", "metadata": {"in_sentence": "Lalchand Jain (P.W. 1) for the assured stated that on the 2nd of June the houses were 400/450 feet away from the bank of the river (Q. 73) and on tliat date there was no erosion because the river was quite calm (Q. 132)."}}, {"text": "2nd of June", "label": "DATE", "start_char": 11781, "end_char": 11792, "source": "ner", "metadata": {"in_sentence": "Lalchand Jain (P.W. 1) for the assured stated that on the 2nd of June the houses were 400/450 feet away from the bank of the river (Q. 73) and on tliat date there was no erosion because the river was quite calm (Q. 132)."}}, {"text": "July 15, 1950", "label": "DATE", "start_char": 12367, "end_char": 12380, "source": "ner", "metadata": {"in_sentence": "Even on July 15, 1950 the distance between these houses and the river was 250 feet (Q. 179)."}}, {"text": "Surendranath Bhattacharjee", "label": "WITNESS", "start_char": 12452, "end_char": 12478, "source": "ner", "metadata": {"in_sentence": "Surendranath Bhattacharjee (P.W. 2), Overseer and Inspector, Dhulia Municipality 11tated that the erosion started four or five days afte1 Rathajatra which took place on or about June 20, 1950."}}, {"text": "Dhulia Municipality", "label": "GPE", "start_char": 12513, "end_char": 12532, "source": "ner", "metadata": {"in_sentence": "Surendranath Bhattacharjee (P.W. 2), Overseer and Inspector, Dhulia Municipality 11tated that the erosion started four or five days afte1 Rathajatra which took place on or about June 20, 1950."}}, {"text": "June 20, 1950", "label": "DATE", "start_char": 12630, "end_char": 12643, "source": "ner", "metadata": {"in_sentence": "Surendranath Bhattacharjee (P.W. 2), Overseer and Inspector, Dhulia Municipality 11tated that the erosion started four or five days afte1 Rathajatra which took place on or about June 20, 1950."}}, {"text": "Bijoy Kumar", "label": "WITNESS", "start_char": 12645, "end_char": 12656, "source": "ner", "metadata": {"in_sentence": "Bijoy Kumar (P.W. 4), Retired Superintending Engineer is an important witne11s."}}, {"text": "May 27, 1949", "label": "DATE", "start_char": 12786, "end_char": 12798, "source": "ner", "metadata": {"in_sentence": "F, G and H to Government on May 27, 1949, November 4, 1949 and September 11, 1950."}}, {"text": "November 4, 1949", "label": "DATE", "start_char": 12800, "end_char": 12816, "source": "ner", "metadata": {"in_sentence": "F, G and H to Government on May 27, 1949, November 4, 1949 and September 11, 1950."}}, {"text": "September 11, 1950", "label": "DATE", "start_char": 12821, "end_char": 12839, "source": "ner", "metadata": {"in_sentence": "F, G and H to Government on May 27, 1949, November 4, 1949 and September 11, 1950."}}, {"text": "Dhulian town", "label": "GPE", "start_char": 12901, "end_char": 12913, "source": "ner", "metadata": {"in_sentence": "In these reports he gives a description of the scouring of Dhulian town on August 5, 1950."}}, {"text": "August 5, 1950", "label": "DATE", "start_char": 12917, "end_char": 12931, "source": "ner", "metadata": {"in_sentence": "In these reports he gives a description of the scouring of Dhulian town on August 5, 1950."}}, {"text": "July 6, 1950", "label": "DATE", "start_char": 13531, "end_char": 13543, "source": "ner", "metadata": {"in_sentence": "From this evidence it is possible to form an opinion about state of the river on or about July 6, 1950."}}, {"text": "Ghose", "label": "OTHER_PERSON", "start_char": 14691, "end_char": 14696, "source": "ner", "metadata": {"in_sentence": "Finally, the fact that no reasons were given or that the report of Ghose was not produced or that Ghose did not support Dangnli, the Manager, was held to be immaterial because reasons like motives_, were held to be immaterial."}}, {"text": "Dangnli", "label": "OTHER_PERSON", "start_char": 14744, "end_char": 14751, "source": "ner", "metadata": {"in_sentence": "Finally, the fact that no reasons were given or that the report of Ghose was not produced or that Ghose did not support Dangnli, the Manager, was held to be immaterial because reasons like motives_, were held to be immaterial."}}, {"text": "P. B. Mukharji", "label": "JUDGE", "start_char": 15018, "end_char": 15032, "source": "ner", "metadata": {"in_sentence": "The appeal was heard by P. B. Mukharji and S. K. Dalla JJ."}}, {"text": "S. K. Dalla", "label": "JUDGE", "start_char": 15037, "end_char": 15048, "source": "ner", "metadata": {"in_sentence": "The appeal was heard by P. B. Mukharji and S. K. Dalla JJ."}}, {"text": "Mukharji", "label": "JUDGE", "start_char": 15094, "end_char": 15102, "source": "ner", "metadata": {"in_sentence": "The judgment on appeal was delivered by Mukharji J.\n\nIn dealing with the cancellation of the policy the learned Judge considered the matter with and without condition 10."}}, {"text": "July 3, 1950", "label": "DATE", "start_char": 15760, "end_char": 15772, "source": "ner", "metadata": {"in_sentence": "As the cover note was only for a month and on its terms had ceased to be operative, a contract of insurance absolute for one year W'lS spelled out from the letter of acceptance which was said to govern the relations of the parties between July 3, 1950 (the date of the expiry of the cover note) and July 6, 1950 (when the policy was cancelled) and till 13/15th August, 1950 when the houses were washed away."}}, {"text": "13/15th August, 1950", "label": "DATE", "start_char": 15874, "end_char": 15894, "source": "ner", "metadata": {"in_sentence": "As the cover note was only for a month and on its terms had ceased to be operative, a contract of insurance absolute for one year W'lS spelled out from the letter of acceptance which was said to govern the relations of the parties between July 3, 1950 (the date of the expiry of the cover note) and July 6, 1950 (when the policy was cancelled) and till 13/15th August, 1950 when the houses were washed away."}}, {"text": "Supreme Court of the United States", "label": "COURT", "start_char": 29463, "end_char": 29497, "source": "ner", "metadata": {"in_sentence": "In Eames v. Home Insurance Co. (1) the Supreme Court of the United States observed:\n\n\"If no preliminary contract would be valid unless it specified minutely the terms to be contained in the policy to be issued, no such contract could ever be made or would ever be of any use."}}, {"text": "SUPR.BME COURT RiPORTS\n\n(1966] 3 S.C.R.", "label": "COURT", "start_char": 32153, "end_char": 32192, "source": "ner", "metadata": {"in_sentence": "St2 SUPR.BME COURT RiPORTS\n\n(1966] 3 S.C.R.\n\nwas only oPe standard fire-policy, the use of the plural word 'policies' made no difference and the delay in sending the cover notes, if any, was also immaterial."}}, {"text": "Macgillivray", "label": "JUDGE", "start_char": 34157, "end_char": 34169, "source": "ner", "metadata": {"in_sentence": "22, PlllC 245 paragraph \"474; Macgillivray on Insurance Law (5th &In.)"}}, {"text": "Watson", "label": "OTHER_PERSON", "start_char": 36847, "end_char": 36853, "source": "ner", "metadata": {"in_sentence": "The object of such a condition was stated by Lord Watson to be-\n\n\" .... to enable the insurers to release themselves from their contract during its currency, leaving it in full vigour down to the time of notice."}}, {"text": "Hartford Fire Insurance Co.", "label": "ORG", "start_char": 38836, "end_char": 38863, "source": "ner", "metadata": {"in_sentence": "But a similar view of an identical condition was taken by this Court in the Hartford Fire Insurance Co. case {I)."}}, {"text": "Sarkar", "label": "JUDGE", "start_char": 38874, "end_char": 38880, "source": "ner", "metadata": {"in_sentence": "Sarkar J. there pointed out that a clause in this form was a common term in policies and must therefore be accepted as reasonable and that the right to terminate at will cannot, by reason of the circumstances, be read as a right to terminate for a reasonable cause."}}, {"text": "March 20, 1947", "label": "DATE", "start_char": 39216, "end_char": 39230, "source": "ner", "metadata": {"in_sentence": "In that case the Hartford Office insured certain goods against fire between March 20, 1947 and March 1948 in the town of Amritsar."}}, {"text": "Amritsar", "label": "GPE", "start_char": 39261, "end_char": 39269, "source": "ner", "metadata": {"in_sentence": "In that case the Hartford Office insured certain goods against fire between March 20, 1947 and March 1948 in the town of Amritsar."}}, {"text": "Punjab", "label": "GPE", "start_char": 39367, "end_char": 39373, "source": "ner", "metadata": {"in_sentence": "Riots occurring in July 1947 in the Punjab, a godown in Bakarwana Bazar in Amritsar where insured goods were stored was looted and some goods were lost."}}, {"text": "August 7, 1947", "label": "DATE", "start_char": 39524, "end_char": 39538, "source": "ner", "metadata": {"in_sentence": "The Hartford Otlicc was informed and on August 7, 1947 they wrote saying that the goods be removed to a safe place or the policy would stand cancelled after August 10, 1947, under condition 10 which was similar to condition 10 here."}}, {"text": "August 10, 1947", "label": "DATE", "start_char": 39641, "end_char": 39656, "source": "ner", "metadata": {"in_sentence": "The Hartford Otlicc was informed and on August 7, 1947 they wrote saying that the goods be removed to a safe place or the policy would stand cancelled after August 10, 1947, under condition 10 which was similar to condition 10 here."}}, {"text": "August 15, 1947", "label": "DATE", "start_char": 39720, "end_char": 39735, "source": "ner", "metadata": {"in_sentence": "On August 15, 1947, the goods were lost by fire."}}, {"text": "Hartford Office", "label": "ORG", "start_char": 39771, "end_char": 39786, "source": "ner", "metadata": {"in_sentence": "The Hartford Office was held to be protected by the said condition."}}, {"text": "June 18, 1950", "label": "DATE", "start_char": 42147, "end_char": 42160, "source": "ner", "metadata": {"in_sentence": "We are concerned with two dates in particular and they are June 18, 1950 when Ghose visited Dhulianand July6 when the policy was cancelled."}}, {"text": "Dhulianand", "label": "GPE", "start_char": 42180, "end_char": 42190, "source": "ner", "metadata": {"in_sentence": "We are concerned with two dates in particular and they are June 18, 1950 when Ghose visited Dhulianand July6 when the policy was cancelled."}}, {"text": "Sun Fire Office", "label": "ORG", "start_char": 43397, "end_char": 43412, "source": "ner", "metadata": {"in_sentence": "This case, therefore, falls within the rule of the Sun Fire Office(!)"}}, {"text": "Hartford Fire Insurance Company", "label": "ORG", "start_char": 43424, "end_char": 43455, "source": "ner", "metadata": {"in_sentence": "and the Hartford Fire Insurance Company( 2) cases."}}]}
{"document_id": "1966_3_517_526_EN", "year": 1966, "text": "B •\n\nF •\n\nRAM CHANDER PRASAD SHARMA\n\nSTATE OF BIHAR & ANR.\n\nFebruary 8, 1966\n\n[A. K. SARKAR AND J. R. MUDHOLKAR, JJ] Indian Electricity Act (9 of 1910), ss. 39 and 50-Existence of artificial means for abstraction of e/ectriclty-Whm evidence of dishontlt abstraction-Complaint to police on behalf of Company-If prosecutiort at the Instance of person aggrieved.\n\nThe appellant's mill was supplied with electric energy by the Patna Electricity Supply Company. The electric meter was tampered With by breaking its seals, opening its stud and inserting a wire which prevented Iba rotation of the disc, so that, the consumption of electricity waa DOI registered. There was thus a perfected artificial means for abstraction of electric energy. At the instance of the Chief Engineer of the Electricity Supply Company, who had been specifically empowered to act on behalf of the company, a report was madle by the Assistant Engineer against the appellant to the police and the appellant was prosecuted for an offence under s. 39 of the Indian Electricity Act, 1910. The trial Court acquitted him but the High Court, on appeal, convicted him.\n\nIn appeal to this Court, HELD : (i) The appellant was guilty.\n\nFor a convicNon under s. 39, it must be established that there was a perfected artificial means for abstraction of electrical ener¥Y and that the dishonest abstraction was by the accused person. In the mstant case the tampering was so blatant and so effective that it could not have been done without the appellant's knowledge or connivance. (524 B-C] lagannath Singh alias /ainath Singh and Soharl Lal v. B. S. Ramarwamy, (1966) 1 S.C.R. 885, explained. ·\n\n(ii) Since the Electricity Supply Company was a body corporate, it must act only through its officers, and therefore it would follow that the law was set in motion hv the \"person aggrieved\" within the meaning of s. 50 of the Act. (523 CJ\n\nCRIMINAL .APPELATE JURISDICTION : Criminal Appeals Nos. 48 to 51 of 1963.\n\nAppeals from the Judgment and Order dated the 23rd January 1963 of the Patna High Court in Government Appeals Nos. I of 1960, 39 and 19 of 1959, and Criminal Appeal No. 42 of 1959 respectively.\n\nM/s. Nuruddin Ahmad and U. P. Singh, for the Appellants (Ir Cr. As. Nos 48 to 50 of 1963, and Appellant No. 2 (In Cr. A No. 51 of 1963) : M/s. D. P. Singh and U. P. Singh, for Appellant No. I {It\\ Cr. A. No. 51 of 1963) : M/s. A. N. Sahay, N. K. Prasad Rukhaiyer and D. Goburdhan, for Respondent No. I.\n\nM/s. A. N. Sahay and S. P. Varma, for Respondent No. 2.\n\nSIS SUPllEME COURT REPORTS\n\n[ 1966] 3 S.C.R.\n\nThe following judgment of the court was delivered by : Mudholkar J.-By a common judgment delivered on January 23, 1963 the High Court at Patna decided four appeals preferred by the State of Bihar and two criminal revision petitions, one on behalf of the complainant and another on behalf of an accused person.\n\nThese appeals arose out of four prosecutions launched against certain persons running mills or factories which were supplied with energy by the Patna Electricity Supply Company (hereafter referred to as P. E. S. Co. for the sake of brevity). The offences with which they were charged were under ss. 39 and 44 (c) of the Indian Electricity Act, 19!0 (9 of 19!0) and r. 138 read with r. 56 made under the Act. The trying magistrate acquitted all those persons who are aprcllants before us in respect of each of these offences, except Ram Chander Prasad, appellant in Crl. A .. 48 of 1963.\n\nHe was convicted of all the three offences and sentenced variously. In appeal he was acquitted of the offence under s. 39 by the Additional s,, ssions Judge, Patna while his conviction and sentences under the other two provisions were upheld. The State thereupon preferred an appeal against his acquittal under s. 417, Code of Criminal Procedure before the High Court. The State likewise preferred appeals against the acquittal of the accused persons in the other three cases. All the appeals were heard together and were substantially allowed. The complainant Ram Chandar Parsad Sharma's petition was allowed and that of an accused person dismissed. The accused persons have, therefore, preferred four appeals before us and though we will deal with them in this judgment we will take them separately one after the other.\n\nCriminal Appeal No. 48 of 1963 : According to the prosecution, on June II, 1958 the Assistant Engineer (Mains) of the P. E. S. Co. by name Chatterjee visited the Ramji Mills situated at Dinapur. The mill is run with a 15 horse power motor which is supplied with electric energy by P. E. S. Co.\n\nIt is provided with a three phase meter. Chatterjee found the mill working but noticed that the disc of the meter was not rotating with the result that the consumption of electrical energy was not being regi, tered at all. Upon inspection of the meter Chatterjee noticed that a piece of wire had been inserted into the meter through the top stud hole on the right hand side of the meter cover. This had been done by unscrewing the nut and thus exposing the stud hole. Eventually a report was made to the police by Chatterjee at the instance of Ramaswami the then Chief Engineer and General Manager of P. E. S. Co. After investigation the appellant was placed for trial before the Judicial Magistrate, First Class, Dinapur. He framed charges against him in respect of all the three offences. The appellant pleaded not guilty and denied having inserted the wire inside the meter <>r to have tampered with it in any way.\n\nHis main defence, however,\n\nB •\n\nD •\n\n• F\n\nH ..\n\nR. P. SHARMA v. BIHAR (Mudholkar, !.) 519\n\nA was that the mill belonged to the joint family and its managemet was in the hands of his father Nathuni Thakur. He further said that he was practising medicine and was running a homoeopathic dispensary in Dinapur. He did not deny that the meter had been tampered with but according to him this was done by Chatterjee himself because he was not given illegal gratification which he B had demanded from Lohari Pandit, who was the munshi of the mill.\n\nAll the courts are concurrent in holding that the appellant was running the mills and that he was a consumer as defined in s. 2(c) of the Act.\n\nMoreover, his convictions under s. 44(c) and under r. 138 read with r. 56 are not challenged before us. In the cir- C cumstances it is not open to him now to say that he had no concern with the mills. The only question then is whether the offence under s. 39 has been brought home to him. Section 39 of the Act reads thus :\n\n\"Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction.\" It has been concurrently found by the courts below that at the time of the inspection the mill was working but the meter was not registering the consumption. It has also been found concurrently that the meter had been tampered with, that its seals were broken, that its stud was open and a wire had actually been inserted in it which prevented the disc from rotating. These findings were not challenged before us and in our opinion quite rightly. What was, however, said was that in view of our recent decision in Jagannath Singh alias Jainath Singh and Sohari Lal v. B. S. Ramaswami(') these facts by themselves would not justify the inference that the appellant has committed an offence under s. 39. That was a case in which, though the meter seal was broken and the sealing nut was loosened which exposed the stud hole of the meter there was no evidence to show that a wire or any other foreign matter had been introduced in the meter which would have the effect of stopping or retarding the rotation of the disc. The meter was actually registering consumption of energy and the prosecution had not established by using a check meter or otherwise that what was being registered was less than the current actually consumed by the mill. It is in the background of these facts that this Court observed :\n\n\"The effect of the last part of s. 39 is that the existence of the unauthorised means for abstraction is prima facie\n\n(I) (1966] l S.C.R. 885.\n\n520 SUPRBMB comT lll!POR.TS\n\n[1966] 3 S.C.R.\n\nevidence of dishonest abstraction by some person. The special rule of evidence goes no further. The prosecution must prove a/iunde that the accused made the abstraction.\n\nThe fact that the accused is in possession and control of the artificial means for abstraction coupled with other circumstances showing that he alone is responsible for the abstraction may lead to the inference that he is guilty of the dishonest abstraction.\"\n\nThis Court also held that an exposed stud hole cannot by itself be regarded as a perfected artificial means for abstraction of electrical energy. In the present case, however, the artificial means was 'perfected' because a wire had actually been introduced through the stud hole and kad the effoct of preventing the rotation of the disc. The High Court has held that the appellant was not merely a consumer but was the person who supervised over the working of the mill and the custody of and control over the meter could not be with anyone else but him. Tampering was so blatant and so effective that it could not have been done without his knowledge or connivance. Further there is evidence on record to the effect that it takes a considerable time and requires certain amount of skill to do what has been found to have been done to this meter. Clearly, therefore, it could not be the work of any one other than an interested person. Indeed, looking to the effectiveness of the tampering it must follow that its object was to prevent the recording of electrical energy consumed by the mill.\n\nThe person interested in this would naturally be the consumer.\n\nThe learned Additional Sessions Judge no doubt said that the possibility of the appellant's father or some other member of the family tampering with the meter cannot be ruled out. In our view such a speculative possibility is not enough to create reasonable doubt, the benefit of which could be given to the appellant.\n\nIn our opinion, therefore, the High Court was right and accordingly we dismiss this appeal.\n\nCriminal Appeal No. 49 o/1963 :\n\nThis case deals with Onkar Mills which, according to the prosecution, is run by the appellant Jainarain Lal. When Chatterjee inspected this mill along with Kamla Prasad, Government inspector, on June 13, 1958 he found that two sealing wires of the meter were broken. He drew up a report of this on August 2, 1958 and submitted it to Ramaswami. Before this date, however, that is, on July I, 1958 Ramaswami had visited the place along with Chatterjee and Srinivasan, the then Mains Superintendent. Both the appellants took these persons to the room in which the meter had been installed.\n\nRamaswami found the sealing wires cut near the seals and also found that both the seals had been tampered with.\n\nAccording to the prosecution, therefore, the appellants were guilty\n\n- ·r . \"---\n\nA ..\n\n' B\n\n• D\n\nR. p. SHARMA y. BlliAR ( M udholkar. I.) 5 21\n\nof offences not only under r. 138 read with r. 56 framed under that Act but also of offences under s. 44(c) and s. 39 of the Act. In so far as the offence under s. 39 is concerned what is mainly relied upon by the prosecution is that while between June 28 and July l,\n\n1958 the meter reading showed a daily consumption of electric energy at about 300 units, for the period prior to that it showed an average daily consumption of only 100 units.\n\nIn so far as the offence under s. 44(c) is concerned the facts to be borne in mind are these : On July 1, 1958 the meter was bound with wires at the instance of the P. E. S. Co. officials. It is, however, a fact that the meter stopped registering the current used all of a sudden within 24 hours: Indeed, on this score the appellants themselves made a complaint to the P. E. S. Co. by telegram. When the meter was examined it was found _that nitric acid had been poured on it and thus the meter had been tampered with. This evidence was not accepted by the trying magistrate who felt that things looked rather suspicious. On the other hand the High Court upon a consideration of the evidence has come to the conclusion that the meter had been deliberately tampered with .\n\nThe appellants have been found by the High Court to be consumers and in our opinion rightly and, therefore, with respect to the offence of tampering which is punishable under s. 44(c) they must be held to be guilty. It is not for . us to re-assess the evidence ori the point because it is the High Court which as the final court of facts, has to assess evidence. In the circumstances we see no ground to interfere with the convictions and sentences passed on the appellants by the High Court for the offence under s. 44(c) of the Act.\n\nIn so far as the offence under r. 138 read with r. 56 is concerned it is clear that the offence has been established.\n\nIndeed, it is not even the appellants' case that the meter was not tampered with.\n\nBut according to them all this was done by Chatterjee. This explanation has been rejected by the High Court and in our opinion rightly. We, therefore, dismiss their appeal in respect of their conviction and sentences for this offence. .\n\nIn our opinion, the conviction of the offences under s. 39 is unsustainable. It is no doubt true that the meter had been tampered with. But there is nothing to Ghow that there was any perfected artificial means in existence so as to raise the presumption of dishonest abstraction under s. 39 prior to the stopping of the meter.\n\nThe mere fact that the consumption of energy between June 28 and July 1, 1958 was about 300 units per day whereas it was much less prior to that date does not necessarily lead to the inference that in the past there was dishonest abstraction of electric energy.\n\nThe rise in consumption between June 28 and July 1, could be accounted for by circumstances such as longer working hours, user of current in a wasteful manner, user of current for more\n\n522 SUPREME COUllT REPORTS\n\n(1966] 3 S.C.R.\n\nappliances and so on. In the circumstances, therefore, we do not A think that the High Court was right in convicting the appellants under 39 of the Act. We, therefore, set aside their convictions and sentences in respect of the offence under s. 39.\n\nCriminal Appeal No. 50 of 1963 : This appeal concerns the tampering of seals of three power meters installed in the mill belonging to the appellant Krishna Prasad\n\nSao. Accepting the evidence of N. N. Ghosh, a meter inspector, the High Court has held the prosecution cae to be established.\n\nWhile assessing the evidence of Ghosh the prosecution has referred to the evidence of Ramaswami who had inspected the meters ill question three days after Ghosh had inspected them and also to the evidence of the Mains Superintendent Bhattacharya and meter reader Sen who accompanied him. The High Court has also accepted the prosecution case that at the inspection by Ramaswami it was found that the terminal covers of two of the meters were dislodged from their normal positions and were actually hanging by the wires. It was also found that the cover seals of all the meters had been tampered with. Indeed, according to Ramaswami the seals had been so cut and placed that despite what had been done they gave a deceptive appearance of being in tact. It was further found that there were no seals on two of the cut-outs that the seals on the terminal covers of all the three meters were not genuine and that one of the meters had registered no advance whatsoever subsequent to Ghosh's visit on the 19th while the other two had registered only 49 and 50 units respectively between that date and the 22nd July.\n\nIt may be mentioned that Krishan Prasad actually made an e11:tra-judicial confession when he was questioned by Ramaswami regarding the tampering. He no doubt retracted the confession but the High Court has relied upon it.\n\nActing on the evidence F the High Court set aside the acquittal of Krishan Prasad in respect of all the offences including the one under s. 39 of the Act.\n\nBefore we come to the merits we will deal with an objection to the effect that the prosecution was incompetent as it was not launched by a person competent to do so. It is based upon s. 50 of the Act which runs thus :\n\n\"No prosecution shall he instituted against any person for any offence against this Act or any rule, licence or order thereunder, except at the instance of the Government or an Electric Inspector, or of a person aggrieved by the same.\" The prosecution here was commenced with a chargesheet submitted by the police to the Judicial Magistrate. The offences were investigated into by the police after the first information report was launched\n\n,,...\n\nD )' )\n\n• F\n\nG '\n\nR. P. SHARMA v. BIHAR (Mudholkar, /.) 523\n\nwith them by Bhattacharya. What is contended is that information given by him could not entitle the police to submit the chaqe\n\nsheet. It is also said that submission of a chargesheet by t11; e pohce is not the same thing as institution of prosecution at the mstance of the State. It is, however, not disputed that if the !aw was .set in motion by a person aggrieved by making a first mformt10n report to the police a chargesheet could properly be subnutted by the police. It is true that Bhattacharya was not himself a \"person. aggrieved\" and that the \"person aggrieved\" was the P. E. S. Co.\n\nThe P. E .S. Co. however, is a body corporate and must a ct only through its directors or officers. Here we have the evidence of Ramaswami to the effect that he held a general power of attorney from the P. E. S. Co., and that he was specifically empowered thereunder to act on behalf of P. E. S. Co., in all legal proceedings.\n\nThe evidence shows that it was at his instance that Bhattacharya launched the first information report and, therefore, it would follow that the law was set in motion by the \"person aggrieved\".\n\nThe objection based on s. 50 must, therefore, be held to be untenable.\n\nNow as to the merits. In so far as convictions for the offences under s. 44(c) of the Act and r. 138 read with r. 56 are concerned there is ample evidence. In addition to the evidence of Ramaswami and Bhattacharya there is the evidence of Kamla Prasad, Assistant Electrical Inspector who is an independent person. The evidence of these witnesses has been believed by the High Court and it shows clearly that the meters were tampered with and the seals cut. The finding of the High Court that Krishna Prasad Sao was a consumer and that the meters were in his custody and • under his control is also based upon adequate material. The High Court was, therefore, justified in convicting the appellants for offences under those provisions. The High Court has also relied upon the extra-judicial confession of Krishna Pradsad which, it may be mentioned, was retracted by him later in the sense that he denied having made any such confession. Mr. Nur-ud-din Ahmed on behalf of the appellant contended that no conviction can be based upon a retracted extra-judicial confession. The respondent contended that this was not a case of retracted confession to which the rule of prudence requiring corroboration applies. It would not be profitable to discuss the merits of the rival contentions and we will proceed on the assumption that this is a case of retracted confession. It seems to us that in any event Mr. Nur-ud-din's contention cannot be accepted. In Pyarelal v. State(') this Court, while pointing out that ordinarily corroboration is required it is not a rule of law but only a rule of prudence. It is also said\n\nthat it is not an inflexible rule of practice or prudence that in no circumstances such a conviction can be based without corrobo-\n\n(1) (1963] Supp. I S.C.R. 689.\n\n524 SUPllBMB COUllT REPOllTB\n\n\nration, on a retracted confession. We are satisfied that the High A Court had before it adequate material apart from the retracted confession for holding that the meters had been tampered with and the 'eals broken.\n\nIn so far as the conviction under s. 39 is concerned the matter stands on a different footing.\n\nIt is not sufficient to say that a B meter had been tampered with and that it was under the control of tke accused per, on. It is further necessary to show that there was dishonest abstraction, consumption or use of electrical energy by the ac.:used person. Before raising a presumption thereunder that there was dishonest ab8traction the presence of an artificial means which would render abstraction of energy possible has to be established. Here we have three-phase meters and, therefore, C unless an arc tampered with abstraction of energy without fear of detection is not possible. It is difficult to presume that the appellant would have knowingly done something to the meter which would not have escaped detection of a meter reader and facilitated . the abstraction of electric energy. In fact what he had said in his confession was that Jai Narain, a meter reader of the company D had done something to the meter. That may or may not be so.\n\nJai Narain who was co-accused with the appellant was acquitted by the trial court and his acquittal was not challenged by the State.\n\nThere is no material on the basis of which it could be held that there was either a perfected artificial means of abstraction or there WllS in fact any abstraction of electrical energy. In the circumstances the presumption permissible under s. 39 can E not be raised in favour of the prosecution. It follow, therefore, that the appellant's conviction under s. 39 is unsustainable. We accordingly set it aside as also the sentences passed upon him in •\n\nrespect of that offence.\n\nCriminal Appeal No. 51 of 1963 : F\n\nThe appellant here is Durga Prasad. The mains which were alleged by the prosecution to have tampered with were installed in Shankarji Mills. According to the prosecution the appellant Durga Prasad and Chandra Mohan Prasad are the proprietors of the mill, having purchased it from one Musanlal. It is not disputed that the sale deed is in their names. According to the appel- G lants, however, it was purchased by Sarju Prasad father of Durga Prasad and maternal grandfather of Chandra Mohan. On June 18, 1958, Chatterjee inspected the installation. Further, according to him the normal consumption of the mill would be 70 units per day of eight hours working while the meter showed 700 lo 750\n\nunits per month. He also found that both the seals provided on H the top cover of the meter had been tampered wit.h and the op right scaling nut on the stud to be loosened and raised up leav10g stud hole on the meter exposed. He also found lot of dust in the\n\n• (,\n\n, I.\n\nr ..\n\nR. P. SHARMA V. BIHAR (Mudho/kar, !.) 52 s;\n\nA meter. The company's seals on one of the cut-outs were also found missing. He, therefore, reported the matter to Ramaswami and also on June 19, 1958 there was a joint inspection by Ramaswami and Chatterjee. Eventually a prosecution was launched against the appellants for offences under s. 39 and s. 44(c) of the Act and r. 138 read with r. 56. As already stated, the appellants B were acquitted by the trying magistrate but were convicted by the High Court.\n\nThe main contention raised on the appellant's behalf by Mr. Nur-ud-din is that the appellants cannot be regarded as consumers and, therefore, they could not be convicted of any of the offences.\n\nIt is no doubt true that in the company's books it is Musanlal, the original owner who is shown as proprietor of the mill. But it is not denied that he sold the mill to the appellants. It may be that the consideration came from Sarju Prasad but the evidencewhich has been accepted by the courts below shows that the mill was actually run by both the appellants. According to the prosecution the appellants are partners. Though it is true that the partnership deed has not been placed before us there is other material which would justify the conclusion that they are partners.\n\nThe fact that the sale deed stands in the names of both these persons shows prima facie that both of them have interest in the mill. Then there is a statement of Ramaswami to the effect that they were partners. Then there is the evidence to the effect that both of them were taking part in running the mill. In the circumstance-s they could both be held to be the co-owners of the mill. Before its amendment in the year 1959 the definition of consumer in s. 2(c) was as follows :\n\n\"Consumer means any person who is supplied with energy F by a licensee, or whose premises are for the time being connected for the purposes of a supply of energy with the works of a licensee.\"\n\nIt is an admitted fact that the mill was connected with wor.ke of P. E. S. Co. If, therefore, the appellants became co-owners by reason of the purchase of the mill from Musanlal they must be regarded as consumers even though Musanlal's name still continues to be borne on the records of P. E. S. Co.\n\nThe High Court has found as a fact, after consideration of the evidence, that the meters had been tampered with and the company's seals broken. The appellants who are consumers are thus liable to be convicted under s. 44(c) and r. 138 read with r. 56.\n\nIn so far .as the offence under s. 39 is concerned the position is, however, different. There is no material on the basis of which it could be said that what was done to the meter was a perfected\n\nMllSup/Cl66-2\n\n526 SUPREME COUl.T REPORTS\n\n(1966] 3 S.C.R.\n\nartificial means by reason of which dishonest abstraction, consump- A tion or use of electrical energy was possible. Nor again, is there evidence to show that electrical energy was being consumed by the mill over and above what was recorded by the meters. In these ;... circumstances the conviction of the appellants under s. 39 cannot be maintained. We, therefore, allow his appeal to this extent and set aside the conviction and sentence in respect of the offence B under s. 39 of the Act. • Whatwe have said above is sufficient to dispose of all the appeals.\n\nAppeal 48163 dismissed.\n\nAppeal Nos. 49, 50 and 51 of '63 allowed in part. c\n\n. '", "total_entities": 104, "entities": [{"text": "RAM CHANDER PRASAD SHARMA", "label": "PETITIONER", "start_char": 10, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "RAM CHANDER PRASAD SHARMA", "offset_not_found": false}}, {"text": "STATE OF BIHAR & ANR", "label": "RESPONDENT", "start_char": 37, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "STATE OF BIHAR & ANR", "offset_not_found": false}}, {"text": "February 8, 1966", "label": "DATE", "start_char": 60, "end_char": 76, "source": "ner", "metadata": {"in_sentence": "February 8, 1966\n\n[A. K. SARKAR AND J. R. MUDHOLKAR, JJ] Indian Electricity Act (9 of 1910), ss."}}, {"text": "A. K. SARKAR", "label": "JUDGE", "start_char": 79, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR, JJ", "label": "JUDGE", "start_char": 99, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "Indian Electricity Act", "label": "STATUTE", "start_char": 117, "end_char": 139, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 39 and 50", "label": "PROVISION", "start_char": 153, "end_char": 166, "source": "regex", "metadata": {"linked_statute_text": "Indian Electricity Act", "statute": "Indian Electricity Act"}}, {"text": "Patna Electricity Supply Company", "label": "ORG", "start_char": 423, "end_char": 455, "source": "ner", "metadata": {"in_sentence": "The appellant's mill was supplied with electric energy by the Patna Electricity Supply Company."}}, {"text": "s. 39", "label": "PROVISION", "start_char": 1014, "end_char": 1019, "source": "regex", "metadata": {"linked_statute_text": "Indian Electricity Act", "statute": "Indian Electricity Act"}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 1027, "end_char": 1055, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 39", "label": "PROVISION", "start_char": 1219, "end_char": 1224, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "(1966) 1 S.C.R. 885", "label": "CASE_CITATION", "start_char": 1620, "end_char": 1639, "source": "regex", "metadata": {}}, {"text": "s. 50", "label": "PROVISION", "start_char": 1867, "end_char": 1872, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Nuruddin Ahmad", "label": "PETITIONER", "start_char": 2169, "end_char": 2183, "source": "ner", "metadata": {"in_sentence": "M/s. Nuruddin Ahmad and U. P. Singh, for the Appellants (Ir Cr.", "canonical_name": "Nur-ud-din Ahmed"}}, {"text": "U. P. Singh", "label": "LAWYER", "start_char": 2188, "end_char": 2199, "source": "ner", "metadata": {"in_sentence": "M/s. Nuruddin Ahmad and U. P. Singh, for the Appellants (Ir Cr.", "canonical_name": "U. P. Singh"}}, {"text": "D. P. Singh", "label": "LAWYER", "start_char": 2307, "end_char": 2318, "source": "ner", "metadata": {"in_sentence": "51 of 1963) : M/s. D. P. Singh and U. P. Singh, for Appellant No.", "canonical_name": "U. P. Singh"}}, {"text": "A. N. Sahay", "label": "LAWYER", "start_char": 2391, "end_char": 2402, "source": "ner", "metadata": {"in_sentence": "51 of 1963) : M/s. A. N. Sahay, N. K. Prasad Rukhaiyer and D. Goburdhan, for Respondent No."}}, {"text": "N. K. Prasad Rukhaiyer", "label": "LAWYER", "start_char": 2404, "end_char": 2426, "source": "ner", "metadata": {"in_sentence": "51 of 1963) : M/s. A. N. Sahay, N. K. Prasad Rukhaiyer and D. Goburdhan, for Respondent No."}}, {"text": "D. Goburdhan", "label": "LAWYER", "start_char": 2431, "end_char": 2443, "source": "ner", "metadata": {"in_sentence": "51 of 1963) : M/s. A. N. Sahay, N. K. Prasad Rukhaiyer and D. Goburdhan, for Respondent No."}}, {"text": "S. P. Varma", "label": "LAWYER", "start_char": 2489, "end_char": 2500, "source": "ner", "metadata": {"in_sentence": "I.\n\nM/s. A. N. Sahay and S. P. Varma, for Respondent No."}}, {"text": "SIS SUPllEME COURT", "label": "PETITIONER", "start_char": 2525, "end_char": 2543, "source": "ner", "metadata": {"in_sentence": "SIS SUPllEME COURT REPORTS\n\n[ 1966] 3 S.C.R.\n\nThe following judgment of the court was delivered by : Mudholkar J.-By a common judgment delivered on January 23, 1963 the High Court at Patna decided four appeals preferred by the State of Bihar and two criminal revision petitions, one on behalf of the complainant and another on behalf of an accused person."}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 2626, "end_char": 2635, "source": "ner", "metadata": {"in_sentence": "SIS SUPllEME COURT REPORTS\n\n[ 1966] 3 S.C.R.\n\nThe following judgment of the court was delivered by : Mudholkar J.-By a common judgment delivered on January 23, 1963 the High Court at Patna decided four appeals preferred by the State of Bihar and two criminal revision petitions, one on behalf of the complainant and another on behalf of an accused person."}}, {"text": "High Court at Patna", "label": "COURT", "start_char": 2694, "end_char": 2713, "source": "ner", "metadata": {"in_sentence": "SIS SUPllEME COURT REPORTS\n\n[ 1966] 3 S.C.R.\n\nThe following judgment of the court was delivered by : Mudholkar J.-By a common judgment delivered on January 23, 1963 the High Court at Patna decided four appeals preferred by the State of Bihar and two criminal revision petitions, one on behalf of the complainant and another on behalf of an accused person."}}, {"text": "State of Bihar", "label": "ORG", "start_char": 2752, "end_char": 2766, "source": "ner", "metadata": {"in_sentence": "SIS SUPllEME COURT REPORTS\n\n[ 1966] 3 S.C.R.\n\nThe following judgment of the court was delivered by : Mudholkar J.-By a common judgment delivered on January 23, 1963 the High Court at Patna decided four appeals preferred by the State of Bihar and two criminal revision petitions, one on behalf of the complainant and another on behalf of an accused person."}}, {"text": "P. E. S. Co.", "label": "ORG", "start_char": 3085, "end_char": 3097, "source": "ner", "metadata": {"in_sentence": "These appeals arose out of four prosecutions launched against certain persons running mills or factories which were supplied with energy by the Patna Electricity Supply Company (hereafter referred to as P. E. S. Co. for the sake of brevity)."}}, {"text": "ss. 39 and 44", "label": "PROVISION", "start_char": 3177, "end_char": 3190, "source": "regex", "metadata": {"statute": null}}, {"text": "Electricity Act", "label": "STATUTE", "start_char": 3209, "end_char": 3224, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ram Chander Prasad", "label": "PETITIONER", "start_char": 3414, "end_char": 3432, "source": "ner", "metadata": {"in_sentence": "The trying magistrate acquitted all those persons who are aprcllants before us in respect of each of these offences, except Ram Chander Prasad, appellant in Crl.", "canonical_name": "RAM CHANDER PRASAD SHARMA"}}, {"text": "s. 39", "label": "PROVISION", "start_char": 3586, "end_char": 3591, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 417", "label": "PROVISION", "start_char": 3781, "end_char": 3787, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 3789, "end_char": 3815, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ram Chandar Parsad Sharma", "label": "PETITIONER", "start_char": 4031, "end_char": 4056, "source": "ner", "metadata": {"in_sentence": "The complainant Ram Chandar Parsad Sharma's petition was allowed and that of an accused person dismissed.", "canonical_name": "RAM CHANDER PRASAD SHARMA"}}, {"text": "June II, 1958", "label": "DATE", "start_char": 4359, "end_char": 4372, "source": "ner", "metadata": {"in_sentence": "48 of 1963 : According to the prosecution, on June II, 1958 the Assistant Engineer (Mains) of the P. E. S. Co. by name Chatterjee visited the Ramji Mills situated at Dinapur."}}, {"text": "Dinapur", "label": "GPE", "start_char": 4479, "end_char": 4486, "source": "ner", "metadata": {"in_sentence": "48 of 1963 : According to the prosecution, on June II, 1958 the Assistant Engineer (Mains) of the P. E. S. Co. by name Chatterjee visited the Ramji Mills situated at Dinapur."}}, {"text": "Chatterjee", "label": "OTHER_PERSON", "start_char": 4629, "end_char": 4639, "source": "ner", "metadata": {"in_sentence": "Chatterjee found the mill working but noticed that the disc of the meter was not rotating with the result that the consumption of electrical energy was not being regi, tered at all."}}, {"text": "Ramaswami", "label": "OTHER_PERSON", "start_char": 5132, "end_char": 5141, "source": "ner", "metadata": {"in_sentence": "Eventually a report was made to the police by Chatterjee at the instance of Ramaswami the then Chief Engineer and General Manager of P. E. S. Co. After investigation the appellant was placed for trial before the Judicial Magistrate, First Class, Dinapur."}}, {"text": "Judicial Magistrate, First Class, Dinapur", "label": "COURT", "start_char": 5268, "end_char": 5309, "source": "ner", "metadata": {"in_sentence": "Eventually a report was made to the police by Chatterjee at the instance of Ramaswami the then Chief Engineer and General Manager of P. E. S. Co. After investigation the appellant was placed for trial before the Judicial Magistrate, First Class, Dinapur."}}, {"text": "Nathuni Thakur", "label": "OTHER_PERSON", "start_char": 5697, "end_char": 5711, "source": "ner", "metadata": {"in_sentence": "519\n\nA was that the mill belonged to the joint family and its managemet was in the hands of his father Nathuni Thakur."}}, {"text": "Lohari Pandit", "label": "OTHER_PERSON", "start_char": 6002, "end_char": 6015, "source": "ner", "metadata": {"in_sentence": "He did not deny that the meter had been tampered with but according to him this was done by Chatterjee himself because he was not given illegal gratification which he B had demanded from Lohari Pandit, who was the munshi of the mill."}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 6173, "end_char": 6180, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44(c)", "label": "PROVISION", "start_char": 6226, "end_char": 6234, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 6447, "end_char": 6452, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 39", "label": "PROVISION", "start_char": 6483, "end_char": 6493, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 6645, "end_char": 6662, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 39", "label": "PROVISION", "start_char": 7479, "end_char": 7484, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 8121, "end_char": 8126, "source": "regex", "metadata": {"statute": null}}, {"text": "Onkar Mills", "label": "ORG", "start_char": 10336, "end_char": 10347, "source": "ner", "metadata": {"in_sentence": "49 o/1963 :\n\nThis case deals with Onkar Mills which, according to the prosecution, is run by the appellant Jainarain Lal."}}, {"text": "Jainarain Lal", "label": "PETITIONER", "start_char": 10409, "end_char": 10422, "source": "ner", "metadata": {"in_sentence": "49 o/1963 :\n\nThis case deals with Onkar Mills which, according to the prosecution, is run by the appellant Jainarain Lal.", "canonical_name": "Jainarain Lal"}}, {"text": "Kamla Prasad", "label": "OTHER_PERSON", "start_char": 10471, "end_char": 10483, "source": "ner", "metadata": {"in_sentence": "When Chatterjee inspected this mill along with Kamla Prasad, Government inspector, on June 13, 1958 he found that two sealing wires of the meter were broken."}}, {"text": "June 13, 1958", "label": "DATE", "start_char": 10510, "end_char": 10523, "source": "ner", "metadata": {"in_sentence": "When Chatterjee inspected this mill along with Kamla Prasad, Government inspector, on June 13, 1958 he found that two sealing wires of the meter were broken."}}, {"text": "August 2, 1958", "label": "DATE", "start_char": 10613, "end_char": 10627, "source": "ner", "metadata": {"in_sentence": "He drew up a report of this on August 2, 1958 and submitted it to Ramaswami."}}, {"text": "July I, 1958", "label": "DATE", "start_char": 10698, "end_char": 10710, "source": "ner", "metadata": {"in_sentence": "Before this date, however, that is, on July I, 1958 Ramaswami had visited the place along with Chatterjee and Srinivasan, the then Mains Superintendent."}}, {"text": "Srinivasan", "label": "OTHER_PERSON", "start_char": 10769, "end_char": 10779, "source": "ner", "metadata": {"in_sentence": "Before this date, however, that is, on July I, 1958 Ramaswami had visited the place along with Chatterjee and Srinivasan, the then Mains Superintendent."}}, {"text": "s. 44(c)", "label": "PROVISION", "start_char": 11260, "end_char": 11268, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 11273, "end_char": 11278, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 11322, "end_char": 11327, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44(c)", "label": "PROVISION", "start_char": 11638, "end_char": 11646, "source": "regex", "metadata": {"statute": null}}, {"text": "July 1, 1958", "label": "DATE", "start_char": 11705, "end_char": 11717, "source": "ner", "metadata": {"in_sentence": "In so far as the offence under s. 44(c) is concerned the facts to be borne in mind are these : On July 1, 1958 the meter was bound with wires at the instance of the P. E. S. Co. officials."}}, {"text": "s. 44(c)", "label": "PROVISION", "start_char": 12555, "end_char": 12563, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44(c)", "label": "PROVISION", "start_char": 12894, "end_char": 12902, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 13409, "end_char": 13414, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 13642, "end_char": 13647, "source": "regex", "metadata": {"statute": null}}, {"text": "June 28 and July 1, 1958", "label": "DATE", "start_char": 13738, "end_char": 13762, "source": "ner", "metadata": {"in_sentence": "The mere fact that the consumption of energy between June 28 and July 1, 1958 was about 300 units per day whereas it was much less prior to that date does not necessarily lead to the inference that in the past there was dishonest abstraction of electric energy."}}, {"text": "s. 39", "label": "PROVISION", "start_char": 14421, "end_char": 14426, "source": "regex", "metadata": {"statute": null}}, {"text": "Krishna Prasad", "label": "PETITIONER", "start_char": 14577, "end_char": 14591, "source": "ner", "metadata": {"in_sentence": "50 of 1963 : This appeal concerns the tampering of seals of three power meters installed in the mill belonging to the appellant Krishna Prasad\n\nSao.", "canonical_name": "Krishna Prasad Sao"}}, {"text": "N. N. Ghosh", "label": "WITNESS", "start_char": 14624, "end_char": 14635, "source": "ner", "metadata": {"in_sentence": "Accepting the evidence of N. N. Ghosh, a meter inspector, the High Court has held the prosecution cae to be established."}}, {"text": "Ghosh", "label": "OTHER_PERSON", "start_char": 14752, "end_char": 14757, "source": "ner", "metadata": {"in_sentence": "While assessing the evidence of Ghosh the prosecution has referred to the evidence of Ramaswami who had inspected the meters ill question three days after Ghosh had inspected them and also to the evidence of the Mains Superintendent Bhattacharya and meter reader Sen who accompanied him."}}, {"text": "Bhattacharya", "label": "OTHER_PERSON", "start_char": 14953, "end_char": 14965, "source": "ner", "metadata": {"in_sentence": "While assessing the evidence of Ghosh the prosecution has referred to the evidence of Ramaswami who had inspected the meters ill question three days after Ghosh had inspected them and also to the evidence of the Mains Superintendent Bhattacharya and meter reader Sen who accompanied him."}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 14983, "end_char": 14986, "source": "ner", "metadata": {"in_sentence": "While assessing the evidence of Ghosh the prosecution has referred to the evidence of Ramaswami who had inspected the meters ill question three days after Ghosh had inspected them and also to the evidence of the Mains Superintendent Bhattacharya and meter reader Sen who accompanied him."}}, {"text": "Krishan Prasad", "label": "PETITIONER", "start_char": 15856, "end_char": 15870, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that Krishan Prasad actually made an e11:tra-judicial confession when he was questioned by Ramaswami regarding the tampering.", "canonical_name": "Krishna Prasad Sao"}}, {"text": "s. 39", "label": "PROVISION", "start_char": 16191, "end_char": 16196, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 50", "label": "PROVISION", "start_char": 16393, "end_char": 16398, "source": "regex", "metadata": {"statute": null}}, {"text": "P. E .S. Co.", "label": "ORG", "start_char": 17536, "end_char": 17548, "source": "ner", "metadata": {"in_sentence": "aggrieved\" and that the \"person aggrieved\" was the P. E. S. Co.\n\nThe P. E .S. Co. however, is a body corporate and must a ct only through its directors or officers."}}, {"text": "s. 50", "label": "PROVISION", "start_char": 18077, "end_char": 18082, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44(c)", "label": "PROVISION", "start_char": 18196, "end_char": 18204, "source": "regex", "metadata": {"statute": null}}, {"text": "Ramaswami", "label": "WITNESS", "start_char": 18313, "end_char": 18322, "source": "ner", "metadata": {"in_sentence": "In addition to the evidence of Ramaswami and Bhattacharya there is the evidence of Kamla Prasad, Assistant Electrical Inspector who is an independent person."}}, {"text": "Bhattacharya", "label": "WITNESS", "start_char": 18327, "end_char": 18339, "source": "ner", "metadata": {"in_sentence": "In addition to the evidence of Ramaswami and Bhattacharya there is the evidence of Kamla Prasad, Assistant Electrical Inspector who is an independent person."}}, {"text": "Kamla Prasad", "label": "WITNESS", "start_char": 18365, "end_char": 18377, "source": "ner", "metadata": {"in_sentence": "In addition to the evidence of Ramaswami and Bhattacharya there is the evidence of Kamla Prasad, Assistant Electrical Inspector who is an independent person."}}, {"text": "Krishna Prasad Sao", "label": "PETITIONER", "start_char": 18618, "end_char": 18636, "source": "ner", "metadata": {"in_sentence": "The finding of the High Court that Krishna Prasad Sao was a consumer and that the meters were in his custody and • under his control is also based upon adequate material.", "canonical_name": "Krishna Prasad Sao"}}, {"text": "Krishna Pradsad", "label": "PETITIONER", "start_char": 18930, "end_char": 18945, "source": "ner", "metadata": {"in_sentence": "The High Court has also relied upon the extra-judicial confession of Krishna Pradsad which, it may be mentioned, was retracted by him later in the sense that he denied having made any such confession.", "canonical_name": "Krishna Prasad Sao"}}, {"text": "Nur-ud-din Ahmed", "label": "PETITIONER", "start_char": 19066, "end_char": 19082, "source": "ner", "metadata": {"in_sentence": "Mr. Nur-ud-din Ahmed on behalf of the appellant contended that no conviction can be based upon a retracted extra-judicial confession.", "canonical_name": "Nur-ud-din Ahmed"}}, {"text": "Nur-ud-din", "label": "PETITIONER", "start_char": 19527, "end_char": 19537, "source": "ner", "metadata": {"in_sentence": "It seems to us that in any event Mr. Nur-ud-din's contention cannot be accepted.", "canonical_name": "Nur-ud-din Ahmed"}}, {"text": "s. 39", "label": "PROVISION", "start_char": 20183, "end_char": 20188, "source": "regex", "metadata": {"statute": null}}, {"text": "Jai Narain", "label": "PETITIONER", "start_char": 21090, "end_char": 21100, "source": "ner", "metadata": {"in_sentence": "In fact what he had said in his confession was that Jai Narain, a meter reader of the company D had done something to the meter.", "canonical_name": "Jainarain Lal"}}, {"text": "s. 39", "label": "PROVISION", "start_char": 21570, "end_char": 21575, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 21686, "end_char": 21691, "source": "regex", "metadata": {"statute": null}}, {"text": "Durga Prasad", "label": "PETITIONER", "start_char": 21866, "end_char": 21878, "source": "ner", "metadata": {"in_sentence": "51 of 1963 : F\n\nThe appellant here is Durga Prasad.", "canonical_name": "Durga Prasad"}}, {"text": "Shankarji Mills", "label": "ORG", "start_char": 21968, "end_char": 21983, "source": "ner", "metadata": {"in_sentence": "The mains which were alleged by the prosecution to have tampered with were installed in Shankarji Mills."}}, {"text": "Chandra Mohan Prasad", "label": "OTHER_PERSON", "start_char": 22045, "end_char": 22065, "source": "ner", "metadata": {"in_sentence": "According to the prosecution the appellant Durga Prasad and Chandra Mohan Prasad are the proprietors of the mill, having purchased it from one Musanlal.", "canonical_name": "Chandra Mohan Prasad"}}, {"text": "Musanlal", "label": "OTHER_PERSON", "start_char": 22128, "end_char": 22136, "source": "ner", "metadata": {"in_sentence": "According to the prosecution the appellant Durga Prasad and Chandra Mohan Prasad are the proprietors of the mill, having purchased it from one Musanlal."}}, {"text": "Sarju Prasad", "label": "OTHER_PERSON", "start_char": 22257, "end_char": 22269, "source": "ner", "metadata": {"in_sentence": "According to the appel- G lants, however, it was purchased by Sarju Prasad father of Durga Prasad and maternal grandfather of Chandra Mohan."}}, {"text": "Durga Prasad", "label": "PETITIONER", "start_char": 22280, "end_char": 22292, "source": "ner", "metadata": {"in_sentence": "According to the appel- G lants, however, it was purchased by Sarju Prasad father of Durga Prasad and maternal grandfather of Chandra Mohan.", "canonical_name": "Durga Prasad"}}, {"text": "Chandra Mohan", "label": "OTHER_PERSON", "start_char": 22321, "end_char": 22334, "source": "ner", "metadata": {"in_sentence": "According to the appel- G lants, however, it was purchased by Sarju Prasad father of Durga Prasad and maternal grandfather of Chandra Mohan.", "canonical_name": "Chandra Mohan Prasad"}}, {"text": "June 18, 1958", "label": "DATE", "start_char": 22339, "end_char": 22352, "source": "ner", "metadata": {"in_sentence": "On June 18, 1958, Chatterjee inspected the installation."}}, {"text": "R. P. SHARMA V. BIHAR", "label": "OTHER_PERSON", "start_char": 22816, "end_char": 22837, "source": "ner", "metadata": {"in_sentence": "He also found lot of dust in the\n\n• (,\n\n, I.\n\nr ..\n\nR. P. SHARMA V. BIHAR (Mudho/kar, !.)"}}, {"text": "June 19, 1958", "label": "DATE", "start_char": 22998, "end_char": 23011, "source": "ner", "metadata": {"in_sentence": "He, therefore, reported the matter to Ramaswami and also on June 19, 1958 there was a joint inspection by Ramaswami and Chatterjee."}}, {"text": "s. 39", "label": "PROVISION", "start_char": 23150, "end_char": 23155, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44(c)", "label": "PROVISION", "start_char": 23160, "end_char": 23168, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 24551, "end_char": 24558, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44(c)", "label": "PROVISION", "start_char": 25287, "end_char": 25295, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 25357, "end_char": 25362, "source": "regex", "metadata": {"statute": null}}, {"text": "Cl66", "label": "PROVISION", "start_char": 25529, "end_char": 25533, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 25905, "end_char": 25910, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 26056, "end_char": 26061, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_527_542_EN", "year": 1966, "text": "• •\\\n\n• D\n\nF '\n\nSITARAM MOTILAL KALAL\n\nSANTANUPRASAD JAISHANKAR BHATT\n\nFebruary 8, 1966\n\n{K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACHAWAT, JJ.]\n\nTort-Vicarious liability.\n\nThe owner of a vehicle entrusted it to A for plying as a taxi. A drove the taxi, collected the fares, met the expenditure and handed the balance with accounts to the owner.\n\nB who used to clean the taxi was either employed by the owner or on ht. behalf by A. Presumably because A wanted another to assist him in dr; ving the I.Xi he trained B to drive the vehicle and took B for obtaining a licence for driving. While taking the test B caused bodily injury to the respondent. At the time of the accident, A was not present !n the vehicle. On the question whether the owner waa liable,\n\nHELD : (Per Hidayatullah and Bachawatt, JJ.) The owner was not liable.\n\nThere is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met It was negatived in this case.\n\nThe acts of A and B v:ewed separately or collectively were not within the scope of their respective or even joint employment. The evidence did not disclose that the owner had employ\n\ned B to drive the taxi or given him permission ro drive the taxi or had asked him to take test for obtaining a driving licence; nor did it disclose that that the owner had given any authority to A to employ strangers to drive the taxi or to take the driving test. A was not present in the vehicle so that he could be said to be in control on behalf of his employer when the vehicle was driven. [537 H; 540 D; 542 F} For the master's liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master.\n\nThe driver of a car takins the car on the master's busfness makes him vicariously liable if he commits an accident.\n\nBut it is equally well-settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. [537 G]\n\nRule in Storey v. Aston, (1868-69) 4 Q.B.D. 476, by Cockburn C.J., applied.\n\nCase law referred to.\n\nAo. agent could make the principal liable only for acts done within the scope of the agent's authority or under the actual control of the principal. The extension of the doctrine that the act of the servant or the agent must be for the master's benefit, is not correct.~ It is doubtfu1 whether the principle can be extended by the introduction of the doctrine\n\nof implied authority. [540 G]\n\nSmith \\\", Martin, [1911) 2 K.B. 775 and Barwick Y. English Joint Stock Bank, (1867) L.R. 2. Ex. 259, doubted.\n\nPer (Subba Rao, J. dissenting) : The owner waa liable.\n\nSUPREME COURT REPORTS\n\n(1966] 3 S.C.R.\n\nA was not a mere driver of the vehicle hut was the qWner's manager to carry on the business of running his taxi.\n\nA was, therefore, given the authority to do all things, necessary to keep the taxi in a good conditi\"1' and to run it effectively, and if for plying the tlXi throughout day and night and during the absence of A an assistant was necessary to drive the vehicle, A could employ one. A employed B with the approval of tho owner to keep the vehicle in good condition.\n\nA in the interest of the employer instead of engaging a third party. as an assistant driver trained B as such and sought to obtain a licence for him.\n\nTherefore, A did not exceed the authority concrrcci on him by the owner in employing B as a servant and permitting him to drive the vehicle in order to obtain a licence for nssistin~ htm as a driver.\n\n[533 E-H]\n\nCase law referred to.\n\nCrv1L APPELLATE JuRJSDICTION: Civil Appeal No. 615 of 1963.\n\nA peal from the judgment and decree dated April 5, 1957 of the Bombay High Court in First Appeal No. 260 of 1952.\n\nM. V. Goswami, for the appellant.\n\nS. N. Prasad, J.B. Dadaclianji, 0. C. Mathur and Rani1der Narain, for the respondent.\n\nSUBDA RAO, J. delivered a dissenting Opinion. The Judgment of HIDAYATULLAH and BACHA WAT, J.J.-was delivered by HIDAYAT-\n\nULLAH, J.\n\nSobba Rao, J. T regret my inability to agree.\n\nSitararn Motilal Kalal, hereinafter called the !st defendant i& i, n agriculturist ha\".ing lands at Kathwada village. He owned a motor-car bearin~ registration No. BYD 316.\n\nHe entrusted the said car to Mohmmed Yakub Haji, herinafter called the 2nd defendant, for plying the same as, a taxi in Ahmedabad. The 2nd defendant ran the taxi, collected the fare, met the expenditure incurred connection with the said service, rendered account to the I st defendant and remitted the balance to him. In short, the 2nd defendant was not merely the driver of the taxi but he was also in entire charge of plying the taxi in Ahmedabad. The 2nd defendant appointed the 3rd defendant as a cleaner for the taxi.\n\nPresumably because the 2nd defendant wanted another to assist him in driving the car during his absence from the city, he trained the 3rd defendant to drive the car and on April 11, 1940, the 2nd defendant took the 3rd defendant to the Regional Transport Authority for obtaining a licence for him.\n\nOn thl!t date a test was being ' condudoo by the Regional Transport Officer on the capacity of the 3rd defendam to drive a car for the purpose of issuing to him a permanent licence for driving. At about 5 p.m. on that day, the plaintiff, wh:i is a pleader practising in the courLS of the district of Ahmedabad, was going out of the compound of the office of the Regional Transport Authority. At that time, the 3rd defendant was driving the car towards Lal Darwaja side; without giving any\n\nH •\n\n• • •\n\ns. M. KALAL v. s. J. BHATT (Subba Rao, J.) 529\n\nsignal, he took a sudden turn towards the gate of the Office of the Regional Transport Authority, accelerated the speed and dashed the car with great force against the pillar of the gate of th\"e saicj office. In that process, the plaintiff's leg was pinned between the compound wall and the gate, with the result it was crushed and later on amputated. After recovering from a long illness, the plaintiff filed a suit, being Special Suit No. 66 of 1950, in the Court of the Civil Judge, Ahmedabad, for recovery of damages in a sum of Rs. 80,000 from defendants I, 2 and 3 and the 4th defendant, the Indian Globe Insurance Company, Limited, with whom the said car was insured. All the defendants denied their liability.\n\nThe learned Civil Judge held that the 3rd defendant was negligent in driving the taxi, that he was the servant of the 2nd defendant and not of the I st defendant, and that even if he was the servant of the !st defendant as a cleaner of the car, he did not act within the scope of his authority when he drove the car and caused the accident. In the result, he gave a decree against defendants 2 and 3 in a sum of Rs. 20,000 and dismissed the suit against the !st defendant; he also dismissed the suit against the 4th defendant, as the 1st defendant, who insured the car, was exonerated from liability.\n\nAgainst the said judgment and decree the plaintiff preferred an appeal to the High Court of Bombay in so far as the decree went against him. A Division Bench of the said High Court came to the conclusion that the entire managment of the car was given to the 2nd defendant, that in discharge of his duty as such manager he appointed the 3rd defendant with the consent of the !st defendant and that by clearest implication the !st defendant, in the circumstances of the case, must be regarded as having authorised the act of the 2nd defendant in training the 3rd defendant as a car-driver and that, therefore, he would be liable in damages for the accident caused by the negligence of the 2nd and 3rd defendants in the course of their employment. So far as the 4th defendant was concerned, the High Court held that in view of s. 96(1) of the Motor Vehicles Act, 1939, no decree could be directly passed against it, but the decree against the !st defendant could be executed against it in terms of the said section. It raised the quantum of damages from Rs. 20,000 to Rs. 25,000. The suit was decreed in favour of the plaintiff against defendants 1, 2 and 3 with costs.\n\nThe I st defendant, by certificate, has preferred the present appeal.\n\nMr. M. V. Goswami, learned counsel for the !st defendantappellant, contended that the findings of the High Court that the 3rd defendant, the cleaner, was the servant of the !st defendant and that the 2nd defendant was authorised to secure a licence for the cleaner to drive the car were vitiated by its reliance on two pieces of inadmissible evidence, namely, the alleged admissions found in the 3rd defendant's written-statement and in the reply\n\nSUP1'.EMP. COURT REPORTS\n\n(1966) 3 S.C.R.\n\nnotice given by him to that issued to him on behalf of the plaintiff.\n\nHe further contended that the !st defendant could not be made liable for the acts of either the 2nd defendant or the 3rd defendant committed outside the scope of their employment.\n\nMr. Pcrshad, learned counsel for the respondent, though at first made an attempt to sustain the admissibility of the said two pieces of evidence, later on clearly conceded that they could not be relied upon against the I st defendant.\n\nBut, he contended that even after the exclusion of the said two pieces of evidence, on the remaining evidence, the circumstances established and the probabilities arising therefrom it could be held, as the High Court did. that the 3rd defendant was the servant of the !st defendant, that the 2nd defendant was authorised by the !st defendant to train the 3rd defendant as a driver and get a licence for him so that he might assist him in driving the car during his absence, that the accident took place during the course of the employment of the 3rd defendant by the !st defendant and that, therefore, the !st defendant wa-; liable in damages for the accident. That apart, he further argued that the 2nd defendant in discharge of his duty in the course of his employment negligently entrusted the car to the 3rd defendant for the purpose of assisting him in the discharge of his duty and, therefore, the !st defendant would be liable for the accident.\n\nBefore we consider the problem presented to us, it will be useful to notice briefly the relevant aspects of the law of torts vis-avis the liability of a owner of a car for the acts of his driver.\n\nThe doctrine of constructive liability is in a process of evolution.\n\nIt is a great principle of social justice. A court no longer need be overweighed with the old decisions on the subject given under radically different circumstances, for now the owner of a car in India is not burdened with an unpredictable liability as there is a statutory compulsion on him to insure his car against third-party F liability and his burden within the framework of the Motor Vehicles Act is now transferred to the insurer.\n\nThe general principle is well settled and it is neatly given by Pearson, L. J .• in Norton v. Canadian Pacific Steamships. Ltd.( 1 J thus:\n\n'\"The owner of a c; u, when he takes or sends it on a journey for his own purposes, owes a duty of care to other road users, and if any of them suffers damage from negligent drivin11: of the car, whether by the owner himself or by an agent lo whom th\" had delegated the driving, the owner is liable.\"\n\nThe limitation on this principle has been succinctly stated by H Cockburn, C. J., in Storey v. Ashton(2) thus :\n\ntO l196112All ~.R. 785, 790.\n\n(2) (l868-69] I .R. 4 Q.B. 476, 479.\n\n• • ,,\n\n' -\n\n• '\n\n• B\n\n• D -\n\nf F\n\ns. M. KALAL v. s. J. BHATT (Subba Rao,];) 531\n\n\"The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant.\" A valuable test to ascertain whether a servant was negligent or not is found in Ricketts v. Thos. Tilling, Limited.(') There the facts were : the conductor of an omnibus belonging to the defendants, in the presence of the driver, who was seated beside him, for the purpose of turning the omnibus in the right direction for the next journey, drove it through some by-streets so negligently that it mounted the foot pavement and knocked down and seriously injured the plaintiff. The Court of Appeal held that there was evidence of negligence on the part of the driver in allowing the omnibus to be negligently driven by the conductor. In so holding, Buckley, L. J., laid down the following test :\n\n\"lt is a question for the jury whether the effective cause of the accident was that the driver committed a breach of his duty (which was either to prevent another person from driving or, if he allowed him to drive, to see that he drove properly), or whether the driver had discharged that duty.\"\n\nPickford, L. J., said much to the same effect thus : \"Jt seems to me that the fact that he allowed somebody else to drive does not divest him of the responsibility and duty he has towards his masters to see that the omnibus is carefully, and not negligently, driven.\" This decision followed the decision in En.vi,, hart v. Farrant.(2) There, the facts were : A man was employed by the defendants to drive a cart by which delivery was to be made of parcels. The cart was manned by a man and a boy. The man's duty was to drive; the boy's duty was to deliver the parcels.\n\nThe boy had nothing to do wit.h the horses. The man's instructions were not to leave the cart. The driver did in fact leave the cart, and while he was absent the lad drove on and came into collision with the pllj.intiff's carriage and injured it. The question was whether the defendant was liable. Lord Esher, M. R., in his judgment posed the question to be decided thus : \"Now, for what is the defendant liable ?\"and answered it as follows :\n\n\"He is liable for the negligence of Mears (that was the driver) if that negligence was \"an effective cause' of the subsequent damage to the plaintiff.\" Then lower down the learned Judge said :\n\n\"If a stranger interferes (with the driving) it does not follow that the defendant is liable; but equally it does not\n\n(1) L.R. [1915] 1 K.B. 644, 646, 65J.\n\n(2) [1897] - Q.B. 240.\n\n532 ~\\; l'JU..~IE COCRT REPORTS\n\n( 1966] 3 S.C.R.\n\nfollow that because a stranger interferes, the defendant is not liable if the negligence of a servant of his is an clfectivc cause of the accident.\"\n\nThe said decisions lay down the following two propositions : (I) An owner of a car would be liable in damages for an accident caused by his servant in the course of his employment; and (2) he would also be liable if the effective cause of the accident was that the driver in the course of his employment committed a breach of his duty in either not preventing another person from driving the car or neglecting to see that the said person drove it properly. We me not concerned in this case with accidents caused by a driver or a third party outside the scope of the employment, for in this case whether the 3rd defendant was authorised to drive the car by the 1st defendant or not the accident was caused when the car was being driven for the purpose of efficiently plying the taxi for hire for which the 2nd defendant was employed by the 1st defendant.\n\nBefore considering the evidence in this case, at the outset some controversial ground may be cleared. The High Court relied upon the admissions made by the 3rd defendant in his writtenstatement and the reply given by him to the plaintiff as evidence against the !st defendant. As I have indicated earlier, learned counsel for the respondent fairly conceded that those pieces of evidence could not be relied upon as admissions against the 1st defendant. Indeed, the High Court, though it accepted the said two\n\npieces of evidence, alternatively came to the same finding after excluding them from evidence. For the purpose of this judgment I am assuming that the said pieces of evidence are not relevant against the 1st defendant. Therefore, I will exclude the same from my consideration.\n\nNow let me take the case of the 3rd defendant and ascertain his legal relationship with the !st defendant. The Isl defendant was examined as D.W. I. He deposed as follows : He had agricultural land> in Kathwada which he was personally cultivating and he resided at Kathwada; a year and a half before April 11,\n\n1949, he had given his car to the 2nd defendant for plying the same as a taxi; the 2nd defendant had to manage it and he had full control over it; the 2nd defendant paid taxes for the car, spent for petrol, kept the said car always at the railway station stand, rendered accounts for the income he got from plying the said taxi whenever the 1st defendant went to Ahmedabad from Kathwada and met him; the 2nd defendant was paid Rs. 90 p.m. He admitted in the cross-examination that the 2nd defendant was a straightforward and honest man, that he managed the taxi on his behalf, that upto May 1949 he did not go beyond his instn:tions, that the car wa-' plying for hire during day and night and that there were no fixed hours of service. He further stated that he entrusted the 2nd\n\nA ..\n\nF '\n\n• •\n\nD .......\n\n• F\n\nG ...\n\n• H\n\ns. M. KALAL v. s. J. BHATT (Subba Rao, J.) 533\n\ndefendant with the duty of purchasing materials from Bombay.\n\nThis witness no doubt denied that he had authorised the 2nd defendant to engage the 3rd defendant or permitted the 2nd defendant to teach the 3rd defendant car-driving. He also denied that there was debit of Rs. 30 as pay of the 3rd defendant in the accounts submitted to him by the 2nd defendant.\n\nBut the accounts were not produced; and, therefore, an inference should be drawn against him to the effect that if they were produced they would show that a salary of Rs. 30 was paid to the 3rd defenant and he was the servant of the !st defendant.\n\nThe plaintiff was examined as P. W. I. He deposed that the 3rd defendant was the cleaner of the car and that he had personally seen the 3rd defendant cleaning the car in question. The evidence of this witness so far as he said that he had seen the 3rd defendant cleaning the car could be accepted particularly when it is consistent with the probabilities of the case.\n\nFrom the said facts it can reasonably be held that the 2nd defendant appointed the 3rd defendant as cleaner of the car, trained him as a driver and on the day of the accident took him to the office of the Regional Transport Authority and permitted him to drive the car to obtain a permanent licence for him.\n\nOn the said evidence and the probabilities arising therefrom the following inference can reasonably be drawn: The 1st defendant, being the absentee owner of the car used as taxi, entrusted the entire management of running the said car as taxi to the 2nd defendant. The 2nd defendant was not a mere driver of the I st defendant's car, but was his manager to carry on the business of running his taxi. The 2nd defendant was, therefore, given the authority to do all things necessary to keep the taxi in a good condition and to run it effectively to earn profit. It is also implicit in the said arrangement that if for plying the taxi throughout day and night and during the absence of the 2nd defendant from the city an assistant was necessary to drive the car, the 2nd defendant could employ one. The 2nd defendant employed the 3rd defendant as a cleaner with the approval of the 1st defendant to keep the car in good condition. In that context, if the 2nd defendant in the interest of the employer, instead of engaging a third party as an assistant driver trained the 3rd defendant as such and sought to obtain a licence for him, it is not possible to suggest that the 2nd defendant in doing so exceeded the authority conferred on him by the 1st defendant. I, therefore, find that the 2nd defendant did not exceed the authority conferred on him by the 1st defendant in employing the 3rd defendant as a servant and permitting him to drive the car in order to obtain a licence for assisting him as a driver, If so, it follows that the 3rd defendant was the employee of the 1st defendant in his capacity as an assistant to the driver. In that\n\nSUPREME COUKT REPORTS\n\n(1966) 3 S.C.R.\n\nthe 1st defendant would certainly be liable in damages for the accident caused by the 3rd defendant's negligence during the course of his employment.\n\nThough I am prima facie inclined to accept the second proposition also as correct and that the 2nd defendant's negligence in permitting the third defendant to drive the car was the effective cause of the accident, in view of my first finding it is not necessary to express my final opinion thereon.\n\nNow let me turn to the other decisions cited at the Bar. The decision of the Court of Appeal in Donovan v. laing. Wharton, and Down Construction Syndicate, Ltd.(1) deals with a case where, though the man in charge of a crane in the working whereof an accident was caused was the general servant of the defendants, they had parted with the power of controlling him with regard to the matter on which he was engaged. They had lent to a firm which was engaged in loading a ship at their wharf the crane with a man in charge of it.\n\nIt is, therefore, a case where when the accident took place the man, who was operating the crane, was not the servant of the defendants.\n\nIn Britt v. Galmoye and Nevil/(2) the first defendant, who had the 2nd defendant in his employment as a van driver, lent him his private car after the day's work was finished to take friends to a theatre and the 2nd defendant by his negligent driving injured the plaintiff. It was held that the journey was not on the master's business and the master was not in control and, therefore, he was not liable for the servant's act. The principle of this decision is that a owner of a car will not be liable for the accident caused by his employee if it was caused outside the master's employment.\n\nThe decision in Giriiashankar Dayashankar Vaidya v. The B.B. and C.l. Railway(') turned upon the construction of s. 108 of the Indian Railways Act. The servants of the railway assaulted the plaintiff for pulling the communication chain. The Court held that the railway was not liable as the servants were not authorised under the statute to arrest the plaintiff for pulling the communication chain and. therefore, they were not liable for the assualts committed by their servants.\n\nIn Nalini Ranja11 Sen Gupta v.\n\nCorporation of Calcutta(•) when a chauffeur, who was taking his master's car to a workshop for repairs, finding the lane leading to it impassable, left the car in charge of the cleaner, whose duty was only to clean the car and who was forbidden to drive it, and went to the workshop, and during his absence the cleaner drove it against and broke a municipal lamp-post, it was held on the facts of the case that the -----\n\n(!) L.R. ( 1893] I Q.B. 629.\n\n(3) (t918) 20 Born. L.R. t26.\n\n(2) (1927-28) 44 T.L.R. 294.\n\n(4) (1925) I.LR. 52 Cal. 983.\n\n• I•\n\n• • •\n\n.. • _.,.,.\n\n• ..\n\ns. M. KALAL V. s. J. BHATT (Hidayatullah, J.) 535\n\nchaufeur was not negligent and that the cleaner caused the accident outside the scope of his employment and, therefore, the owner was not liable .\n\nThe decision in Emperor v. Shantaram Ram Wadkar (1) turned upon the meaning of the word \"allowed\" in s. 6 of the Motor Vehicles Act, 1914, and is not of any help in deciding the present case. The decision in The Managing Director, R.U.M.S. Ltd., Rasipuram v. Ramaswamy Goudan (2) followed Ricketts v. Thos .\n\nTilling, Ltd., (3) and held that where the servant who was charged with the duty of driving a bus was responsible for allowing the conductor to drive and if he was so responsible he must be equally responsible for the negligent driving by the person who was permitted to drive. The last decision accepted the second proposition and applied it to the facts of the case before the court. The said decisions do not in any way detract from the view expressed by me.\n\nBoth the Courts below concurrently found on the evidence that the 3rd defendant was guilty of negligence in causing the accident. We did not permit the learned counsel for the appellant to question the correctness of the said finding. I accept it. No argument was advanced on the question of the quantum of damages.\n\nIn the result, agreeing with the High Court, I hold that the 1st defendant is liable in damages to the plaintiff for the accident caused by the 3rd defendant. The appeal fails and is dismissed with costs.\n\nHidayatullah, J. The facts need not be stated elaborately for there is little dispute about them. We shall therefore content ourselves with such facts as serve to introduce the reasons for our opposite conclusions.\n\nThe respondent sued three persons for damages for personal injuries which led to the amputation of one of his legs in a motorcar accident. The vehicle belonged to the appellant (first defendant) who had entrusted it to the second respondent for being plied as a taxi. We shall refer to the appellant as the owner of the vehicle or, shortly, owner. At the lime of the accident, it was driven by the third defendant to whom it had been handed over by the second defendant for the purpose of taking a driving test to obtain a driver's. licence. In fact, the motor inspector taking the test was by the side of the third defendant when he was driving. The second defendant was not present in the car but was present when the third defen - dant took the car and had given permission. The suit was defended by the owner of the vehicle for himself. The second defendant remained absent at the trial. The third defendant filed a written\n\n(I) (1932) 34 Born. L.R. 897.\n\n(2J LR. 1957 Mad. 513.\n\n(3) L.R. (1915) 1.K.B. 644.\n\n~- M. KALAL V. ~- J. BHATT (Hidayatul/ah, J.) 537\n\nthe respondent and on the written statement (Ex. 16) filed by him in the suit held that the third defendant was himself probably a servant and in any event, the second defendant as manager of the taxi was clearly authorised to allow the third defendant to drive it.\n\nThe High Court therefore decreed the claim against the owner also and enhanced the amount of damages awarded by the court of trial.\n\nThe first question is whether Exs. 97, 87, and 16 are admissible against the appellant or not. Admission of the documents means admission of facts contained in the documents. The facts were not deposed to by any one and the truth of these statements was not in any way tested. To admit them would be prejudicial to the appellant and strictly speaking no provision of law makes the admissions admissible against a person other than the person making them, unless such person can be said to be bound by the admission.\n\nThis condition does not obtain here. Learned counsel for the respondent, although he attempted to do so at first, did not also rely upon them. We are of the opinion that these documents were inadmissible against the owner. With this evidence excluded there is nothing to show that the owner had employed the defendant to drive the taxi or given him permission to drive the taxi or asked him to take a test to obtain a driver's licence. There is also nothing to show that he had given any authority to the second' defendant to employ strangers to drive the taxi or to take driving tests. The upshot thus is that second defendant was a servant of the owner and the third defendant was a servant of the second'\n\ndefendant or at best a cleaner of the taxi. There is evidence, however, to show that the second defendant was present when the vehicle was borrowed for taking the test and had willingly allowed the third defendant to drive the vehicle for the purpose. On these facts, the question is whether the owner of the vehicle can be held responsible.\n\nThe law is settled that master is vicariously liable for the acts of his servants acting in the course of his employment Unless the act is done in the course of employment, the servant's act does not make the employer liable. In other words, for the master's liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident. But it is equally well-settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable.\n\nThere is a presumption that a vehicle i5 driven on the master's business and by his authorised agent or servant but the presumption can be met. It was negatived in this case, because the vehicle was proved to be driven by an unauthorised person and on his own\n\nSUPRBME COURT REPORTS\n\n[1966] 3 S.C.R.\n\nbusiness. The de facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master. Prima facie, the owner would not be liable in such circumstances.\n\nRicketts'(') case which was relied upon by the respondent is a <:ase in which the driver of an omnibus asked the conductor to drive the omnibus and turn it round to make it face in the right direction for the next journey. The master was held liable vicariously, because the driver was negligent in the performance of the master's work. The driver was in fact seated by the side of the conductor at the time when the omnibus was turned round. In other words, the turning round of the vehicle was an act within the employer's business and not something outside it. When the driver asked the conductor to drive the omnibus for his master's business, he did the master's work in a negligent way. The master was therefore rightly held responsible. In Ricketts'(•) case, all the three Judges expressed the opinion that there should be a new trial. As it was a jury trial and the driver was sitting by the side of the conductor and had control, the question was whether it should not have been found what was the \"effective cause\" of the accident, that is to say, the act of an utter stranger or that of a servant acting negligently in the course of his employment. It is significant that in Trust Co.\n\nLtd., v. de Silva,(2) Ricke/ls' case was cited but was not referred to by Lord Tucker pronouncing the judgment on behalf of the Judicial Committee. The reason was that the case before the Privy Council fell within the rule which was stated by Lord Tucker to be :\n\n\"It is now well settled that the person in control of a carriage or motor vehicle ........ though not actually driving ... . is liable for the negligence of the driver over whom he has the right to exercise control.\"\n\nThe above principle is applicable when the person owning the vehicle is present. In Ricke/ls'(') case the driver was present and he asked the conductor to do the work which he was employed to do and this negligence made the omnibus company liable. In Beard v. London General Omnibus Co.(') the conductor attempted to turn the omnibus on his own initiative and caused an accident. The company was\n\nhe1d not liable, because it was not a part of the conductor's duty to drive the omnibus. lt was not negligence in the course of his employment.\n\nSimilarly, in Englhart' s(~ case, two rvants were e?gaged upon their master's business. One was to dnve a cart and mmd the\n\n(I) L.ll. (1915] I K.B. 644, 646, 650.\n\n. (2) [1956) I W.L.R. 376.\n\n24J.\n\n' ./.\n\n• ..\n\n' .\n\n• ..\n\n... • ,..\n\n• E\n\n• H •\n\ns. M. KAI.AL v. s. J. BHATT (Hidayatullah, J.) 539\n\nhorses and the other-a boy travelling in the cart was to deliver parcels. The driver left the cart unattended and the boy drove it to deliver the parcels and caused the accident. The master was held responsible. The driver ought to have known that if he left the cart the boy would drive it in the fulfilment of the work of the master. When the driver left the cart in the charge of the boy he acted negligently in the course of his master's business. No doubt, 'the effective cause' was the negligence of the servant which made the master responsible but that is not the whole of the matter.\n\nIn Ricketts'(!) and Enge/hart's(2) cases each servant was acting on the master's business at the time. If the two servants in the Enf{e/hart' s case(2) had gone for a picnic or the boy had borrowed the cart to give a joy ride to his friends, the master would not have been liable although the effective cause would still have been the elder servant's negligence. The difference lies in this that in the two cases the negligent act took place in the execution of the master's business and in the examples suggested by us, no question of master's business or the scope of the servant's or agent's employment arises, because the acts are clearly outside that scope. Going for a picnic or lending the cart so that the co-servant's friends may go for an outing is not in the course of the master's employment. Beard's case(3) when compared with Ricketts' case(') brings out the difference.\n\nIn Britt v. Go/moye and Nevil/(4) the master himself lent the car to the servant for the latter's private work and the master was not held responsible for the negligence of the servant in causing injury because neither was the journey on the master's account nor was the master in control at the time. Sir John Salmond (13th Edn. p. 124) has summed up the law thus :\n\n\" .... a master is not responsible for the negligence or other wrongful act of his servant simply because it is committed at a time when the servant is engaged on his master's business.\n\nIt must be committed in the course of that business, so as to form a part of it, and not be merely coincident in time with it.\" The scope of employment of a servant need not of course be viewed narrowly, but the essential element that the wrong must be committed by the servant during the course of the employment, i.e. in doing the master's business ought always to be present. In Century Insurance Co. v. Northern Ireland Road Transport Board,(') the driver of a petrol lorry while transferring petrol from the lorry to an underground tank, struck a match to light a cigarette and threw it on the floor, and thereby caused a fire and explosion which did great damage. The masters were held liable because the negligence was in the discharge of the duty by the servant. Although the act\n\n(1) L.R. (1915] l K.B. 644.\n\n(2) [1897] 1 Q.B. 240 •\n\n(3) [19JO] 2 Q.B. 530.\n\n(4) (1927-28) 44 T.L.R, 294.\n\n(5) [1942] A.C. 509.\n\nSUPREME COURT REPORTS [l 966] 3 S.C.R.\n\nof lighting the cigarette was something the driver did for himself and was by itself quite harmless, it could not be regarded in the abstract and was a negligent method of conducting the master's work. Similarly, in Smith v. Martin(') a school authority was held liable when a teacher, during school hours sent a girl aged 14 wearing a print pinafore to poke the fire and to draw out the damper in a grate in the teacher's common room and the child was burnt.\n\nIt was held that the teacher's duty was to provide education in the widest sense and included expecting obedience from the pupils and this was an act .of negligence in the discharge of such duty.\n\nWe know of no further extension of the doctrine of a master's liability for the act of his servants during the course of his employment which would cover this case.\n\nIt cannot possibly be stated today that the master is responsible for the acts of his servant done, not in the course of employment, but outside it.\n\nIn the present case, the third defendant was not doing the master's work nor was the second defendant acting within the scope of his employment when he lent the taxi. The third defendant had borrowed the taxi for a work of his own and the second defendant in lending it was not acting in the master's business. The second defendant was not present in the taxi so that he could be said to be in control on behalf of his employer wheq the taxi was driven.\n\nThe law with regard to agents is the same. As was observed by Lord Atkinson in Samson v. Aitchison(2) it is a matter of indifference whether a person be styled a servant or agent since it is the retention of control which makes the owner or the principal responsible.\n\nJust as the tort must be committed by a servant either under the actual control of his master or while acting in the course of his employment, the act of the agent will only make the principal liable if it is done within the scope of his authority. By a process of ratiocination, the courts have made a slight distinction by attempting to find a 'right of control' as the basis of the master's liability and have distinguished it from a 'right to control' in cases of simple agency to bring the two case' togcthec.\n\nWe fi:id it simpler to st1tc the law that an agent will make the pnnc1pal responsible \"' long as the agent does the act within the scCJpe of his authority or does so under the actual control of the principal. We do not subscribe to the extension of the doctrine that the act of the servant or the agent must be for the master's benefit. This extension was made by Willes J. in Barwick\n\nv. English Joint Stock Bank('). The word 'benefit' is vague and it is better to adhere to the words 'course of employment' or the 'scope of authority'. There is much institutional criticism ofsuchcxtension. Similarly, we arc doubtful whether the cxtenoion of the principle by the introduction of the doctrine ----- ---·-- ---·\n\n(0 (1911] 2 K.B 775, 784.\n\n(c) (1912] A.C. 884 (31 11867] I R 2 lo>. 259\n\n• E\n\n~ F . '\n\n• II\n\n..... ,,.,\n\n. ,\n\ns. M. KALAL v. s. J. BHATTA (HidlI)latul/ah, l.) 541\n\nof implied authority, which was relied upon in the school master's case referred to above, was quite correct. If the dictum is accepted, not only the master would be liable for what he may be supposed to have 'impliedly authorised' 'the servant to do (however illegal but also for all the servant's negligence not in doing his duty but in doing something on his own account when he should be properly acting for the master. The true rule in such cases is the one stated by Cockburn C. J. in Storey v. Ashton(') thus :\n\n\" .... that the master is only responsible so long as the servant can be said to the doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant.\"\n\nor as Lush J. put it,\n\n\"The question in all such cases as the present is whether the servant was doing that which the master employed him to do.\"\n\nThere has been in recent years another extension of the responsibility of the principal for the act of an agent. In Ormrod and another v. Crosville Motor Services Ltd., and another(2) the owner was attending the Monte Carlo motor car rally. He asked a friend to drive the car from Birkenhead to Monte Carlo. The friend was carrying a snit case belonging to the owner. Later they were to go a holiday together in the car. While the motor car was being driven it collided with a motor omnibus and the owner of the car was held responsible for the damage. Singleton, L. J. observed :\n\n\"It has been said more than once that a driver of a motor car must be doing something for the owner of the car in order to become an agent of the owner. The mere fact of consent by the owner to the use of a chattel is not proof of agency, but the purpose for which this car was being taken down the road on the morning of the accident was either that it should be used by the owner, the third party, or that it should be used for the joint purposes of the male plaintiff and the third party when it reached Monte Carlo.\"\n\nLord Denning (then Lord Justice) observed :\n\n\"It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. This is not correct. The owner is also liable if the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes. .... The law puts an especial responsibility on the owner of a vehicle who allows it to go on the road in charge of some\n\n(I) (1868·69J 4 Q.B.P. 476.\n\n(2) (1953] 2 AU E.R. 753.\n\nLI JSupCI/66-3\n\n542 SUPRl!MI! COURT REPORTS\n\n(1966] 3 S.C.R.\n\none else, no matter whether it is his servant, his friend, or any one else. It is being used wholly or partly on the owner's business or for the owner's purpose, the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern.\"\n\nEven these dicta which make the owner or principal responsible when the vehicle is driven partly on their account and partly on the business of the driver, do not take the matter much further. The learned Judges found the agency from the desire of the owner that the friend should carry his suit case and keep the car ready at Monte Carlo for a holiday.\n\nApplying the above tests to the facts of this case, we find that there is no proof that the second defendant was authorised to coach the cleaner so that the cleaner might become a driver and drive the taxi. It appears more probable that the second defendant wanted someone to assist him in driving the taxi for part of the time and was training the third defendant to share the task of driving. The owner stated on oath that he had not given any such authority to the second defendant.\n\nThe trial Judge accepted that evidence.\n\nThe High Court differed from the trial Judge by relying upon inadmissible evidence. Once the inadmissible evidence is rightly excluded, it is quite clear that this was an act done not on the owner's business but either on the business of the third defendant or that of the third and the second defendants together. It has not been proved to have been even impliedly authorised by the owner or to come within any of the extensions of the doctrine of scope of employment which we have noticed above. The High Court would probably not have passed a decree against the owner if it had not been persuaded to hold the three pieces of evidence to be admissible and relevant. In the absence of that evidence the acts of the second and the third defendants viewed separately or collccti vely were not within the scope of their respective or even joint employment and the owner was therefore not responsible.\n\nWe would accordingly allow the appeal, in so far as the appellant is concerned but in the circumstances of the case would direct that there should be no order as to costs throughout.\n\nORDER In accordance with the opinion of the majority the appeal is allowed in respect of the appellant. In the circumstances of the case there would be no order as to costs throughout.\n\nA . -\n\n, ..\n\n• B ..\n\n' <", "total_entities": 61, "entities": [{"text": "SITARAM MOTILAL KALAL", "label": "PETITIONER", "start_char": 16, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "Sitararn Motilal Kalal", "offset_not_found": false}}, {"text": "SANTANUPRASAD JAISHANKAR BHATT", "label": "RESPONDENT", "start_char": 39, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "SANTANUPRASAD JAISHANKAR BHATT", "offset_not_found": false}}, {"text": "February 8, 1966", "label": "DATE", "start_char": 71, "end_char": 87, "source": "ner", "metadata": {"in_sentence": "• •\\\n\n• D\n\nF '\n\nSITARAM MOTILAL KALAL\n\nSANTANUPRASAD JAISHANKAR BHATT\n\nFebruary 8, 1966\n\n{K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACHAWAT, JJ.]"}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 90, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 104, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 124, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 2705, "end_char": 2714, "source": "ner", "metadata": {"in_sentence": "Per (Subba Rao, J. dissenting) : The owner waa liable.", "canonical_name": "Subba Rao"}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 3836, "end_char": 3849, "source": "ner", "metadata": {"in_sentence": "M. V. Goswami, for the appellant.", "canonical_name": "M. V. Goswami"}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 3871, "end_char": 3883, "source": "ner", "metadata": {"in_sentence": "S. N. Prasad, J.B. Dadaclianji, 0."}}, {"text": "J.B. Dadaclianji", "label": "LAWYER", "start_char": 3885, "end_char": 3901, "source": "ner", "metadata": {"in_sentence": "S. N. Prasad, J.B. Dadaclianji, 0."}}, {"text": ". C. Mathur", "label": "LAWYER", "start_char": 3904, "end_char": 3915, "source": "ner", "metadata": {"in_sentence": "S. N. Prasad, J.B. Dadaclianji, 0."}}, {"text": "Rani1der Narain", "label": "LAWYER", "start_char": 3920, "end_char": 3935, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Rani1der Narain, for the respondent."}}, {"text": "SUBDA RAO", "label": "JUDGE", "start_char": 3958, "end_char": 3967, "source": "ner", "metadata": {"in_sentence": "SUBDA RAO, J. delivered a dissenting Opinion.", "canonical_name": "Subba Rao"}}, {"text": "HIDAYATULLAH", "label": "JUDGE", "start_char": 4020, "end_char": 4032, "source": "ner", "metadata": {"in_sentence": "The Judgment of HIDAYATULLAH and BACHA WAT, J.J.-was delivered by HIDAYAT-\n\nULLAH, J.\n\nSobba Rao, J. T regret my inability to agree.", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "BACHA WAT", "label": "JUDGE", "start_char": 4037, "end_char": 4046, "source": "ner", "metadata": {"in_sentence": "The Judgment of HIDAYATULLAH and BACHA WAT, J.J.-was delivered by HIDAYAT-\n\nULLAH, J.\n\nSobba Rao, J. T regret my inability to agree."}}, {"text": "HIDAYAT-\n\nULLAH", "label": "JUDGE", "start_char": 4070, "end_char": 4085, "source": "ner", "metadata": {"in_sentence": "The Judgment of HIDAYATULLAH and BACHA WAT, J.J.-was delivered by HIDAYAT-\n\nULLAH, J.\n\nSobba Rao, J. T regret my inability to agree.", "canonical_name": "M. HIDAYATULLAH"}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 4091, "end_char": 4100, "source": "ner", "metadata": {"in_sentence": "The Judgment of HIDAYATULLAH and BACHA WAT, J.J.-was delivered by HIDAYAT-\n\nULLAH, J.\n\nSobba Rao, J. T regret my inability to agree.", "canonical_name": "Subba Rao"}}, {"text": "Sitararn Motilal Kalal", "label": "PETITIONER", "start_char": 4138, "end_char": 4160, "source": "ner", "metadata": {"in_sentence": "Sitararn Motilal Kalal, hereinafter called the !", "canonical_name": "Sitararn Motilal Kalal"}}, {"text": "Mohmmed Yakub Haji", "label": "RESPONDENT", "start_char": 4341, "end_char": 4359, "source": "ner", "metadata": {"in_sentence": "He entrusted the said car to Mohmmed Yakub Haji, herinafter called the 2nd defendant, for plying the same as, a taxi in Ahmedabad."}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 4432, "end_char": 4441, "source": "ner", "metadata": {"in_sentence": "He entrusted the said car to Mohmmed Yakub Haji, herinafter called the 2nd defendant, for plying the same as, a taxi in Ahmedabad."}}, {"text": "April 11, 1940", "label": "DATE", "start_char": 5008, "end_char": 5022, "source": "ner", "metadata": {"in_sentence": "Presumably because the 2nd defendant wanted another to assist him in driving the car during his absence from the city, he trained the 3rd defendant to drive the car and on April 11, 1940, the 2nd defendant took the 3rd defendant to the Regional Transport Authority for obtaining a licence for him."}}, {"text": "Civil Judge, Ahmedabad", "label": "COURT", "start_char": 6158, "end_char": 6180, "source": "ner", "metadata": {"in_sentence": "66 of 1950, in the Court of the Civil Judge, Ahmedabad, for recovery of damages in a sum of Rs."}}, {"text": "Indian Globe Insurance Company, Limited", "label": "ORG", "start_char": 6283, "end_char": 6322, "source": "ner", "metadata": {"in_sentence": "80,000 from defendants I, 2 and 3 and the 4th defendant, the Indian Globe Insurance Company, Limited, with whom the said car was insured."}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 7084, "end_char": 7104, "source": "ner", "metadata": {"in_sentence": "Against the said judgment and decree the plaintiff preferred an appeal to the High Court of Bombay in so far as the decree went against him."}}, {"text": "s. 96(1)", "label": "PROVISION", "start_char": 7830, "end_char": 7838, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act, 1939", "label": "STATUTE", "start_char": 7846, "end_char": 7870, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 8249, "end_char": 8262, "source": "ner", "metadata": {"in_sentence": "Mr. M. V. Goswami, learned counsel for the !", "canonical_name": "M. V. Goswami"}}, {"text": "Pcrshad", "label": "OTHER_PERSON", "start_char": 8992, "end_char": 8999, "source": "ner", "metadata": {"in_sentence": "Mr. Pcrshad, learned counsel for the respondent, though at first made an attempt to sustain the admissibility of the said two pieces of evidence, later on clearly conceded that they could not be relied upon against the I st defendant."}}, {"text": "India", "label": "GPE", "start_char": 10640, "end_char": 10645, "source": "ner", "metadata": {"in_sentence": "A court no longer need be overweighed with the old decisions on the subject given under radically different circumstances, for now the owner of a car in India is not burdened with an unpredictable liability as there is a statutory compulsion on him to insure his car against third-party F liability and his burden within the framework of the Motor Vehicles Act is now transferred to the insurer."}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 10829, "end_char": 10847, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Pearson", "label": "JUDGE", "start_char": 10948, "end_char": 10955, "source": "ner", "metadata": {"in_sentence": "The general principle is well settled and it is neatly given by Pearson, L. J .• in Norton v. Canadian Pacific Steamships."}}, {"text": "H Cockburn", "label": "JUDGE", "start_char": 11389, "end_char": 11399, "source": "ner", "metadata": {"in_sentence": "The limitation on this principle has been succinctly stated by H Cockburn, C. J., in Storey v. Ashton(2) thus :\n\ntO l196112All ~.R. 785, 790.", "canonical_name": "H Cockburn"}}, {"text": "Subba Rao", "label": "LAWYER", "start_char": 11570, "end_char": 11579, "source": "ner", "metadata": {"in_sentence": "• • ,,\n\n' -\n\n• '\n\n• B\n\n• D -\n\nf F\n\ns. M. KALAL v. s. J. BHATT (Subba Rao,];) 531\n\n\"The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant.\"", "canonical_name": "Subba Rao"}}, {"text": "Buckley", "label": "JUDGE", "start_char": 12442, "end_char": 12449, "source": "ner", "metadata": {"in_sentence": "In so holding, Buckley, L. J., laid down the following test :\n\n\"lt is a question for the jury whether the effective cause of the accident was that the driver committed a breach of his duty (which was either to prevent another person from driving or, if he allowed him to drive, to see that he drove properly), or whether the driver had discharged that duty.\""}}, {"text": "Pickford", "label": "JUDGE", "start_char": 12787, "end_char": 12795, "source": "ner", "metadata": {"in_sentence": "Pickford, L. J., said much to the same effect thus : \"Jt seems to me that the fact that he allowed somebody else to drive does not divest him of the responsibility and duty he has towards his masters to see that the omnibus is carefully, and not negligently, driven.\""}}, {"text": "Esher", "label": "JUDGE", "start_char": 13660, "end_char": 13665, "source": "ner", "metadata": {"in_sentence": "Lord Esher, M. R., in his judgment posed the question to be decided thus : \"Now, for what is the defendant liable ?\""}}, {"text": "Mears", "label": "OTHER_PERSON", "start_char": 13837, "end_char": 13842, "source": "ner", "metadata": {"in_sentence": "and answered it as follows :\n\n\"He is liable for the negligence of Mears (that was the driver) if that negligence was \"an effective cause' of the subsequent damage to the plaintiff.\""}}, {"text": "Kathwada", "label": "GPE", "start_char": 16223, "end_char": 16231, "source": "ner", "metadata": {"in_sentence": "The Isl defendant was examined as D.W. I. He deposed as follows : He had agricultural land> in Kathwada which he was personally cultivating and he resided at Kathwada; a year and a half before April 11,\n\n1949, he had given his car to the 2nd defendant for plying the same as a taxi; the 2nd defendant had to manage it and he had full control over it; the 2nd defendant paid taxes for the car, spent for petrol, kept the said car always at the railway station stand, rendered accounts for the income he got from plying the said taxi whenever the 1st defendant went to Ahmedabad from Kathwada and met him; the 2nd defendant was paid Rs."}}, {"text": "April 11,\n\n1949", "label": "DATE", "start_char": 16321, "end_char": 16336, "source": "ner", "metadata": {"in_sentence": "The Isl defendant was examined as D.W. I. He deposed as follows : He had agricultural land> in Kathwada which he was personally cultivating and he resided at Kathwada; a year and a half before April 11,\n\n1949, he had given his car to the 2nd defendant for plying the same as a taxi; the 2nd defendant had to manage it and he had full control over it; the 2nd defendant paid taxes for the car, spent for petrol, kept the said car always at the railway station stand, rendered accounts for the income he got from plying the said taxi whenever the 1st defendant went to Ahmedabad from Kathwada and met him; the 2nd defendant was paid Rs."}}, {"text": "Down Construction Syndicate, Ltd.(1", "label": "ORG", "start_char": 20752, "end_char": 20787, "source": "ner", "metadata": {"in_sentence": "Wharton, and Down Construction Syndicate, Ltd.(1) deals with a case where, though the man in charge of a crane in the working whereof an accident was caused was the general servant of the defendants, they had parted with the power of controlling him with regard to the matter on which he was engaged."}}, {"text": "s. 108", "label": "PROVISION", "start_char": 21998, "end_char": 22004, "source": "regex", "metadata": {"statute": null}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 22019, "end_char": 22031, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "M. KALAL", "label": "JUDGE", "start_char": 22978, "end_char": 22986, "source": "ner", "metadata": {"in_sentence": "• ..\n\ns. M. KALAL V. s. J. BHATT (Hidayatullah, J.) 535\n\nchaufeur was not negligent and that the cleaner caused the accident outside the scope of his employment and, therefore, the owner was not liable ."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 23275, "end_char": 23279, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act, 1914", "label": "STATUTE", "start_char": 23287, "end_char": 23311, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "J. BHATT", "label": "JUDGE", "start_char": 25716, "end_char": 25724, "source": "ner", "metadata": {"in_sentence": "~- M. KALAL V. ~- J. BHATT (Hidayatul/ah, J.) 537\n\nthe respondent and on the written statement (Ex."}}, {"text": "Tucker", "label": "OTHER_PERSON", "start_char": 30274, "end_char": 30280, "source": "ner", "metadata": {"in_sentence": "It is significant that in Trust Co.\n\nLtd., v. de Silva,(2) Ricke/ls' case was cited but was not referred to by Lord Tucker pronouncing the judgment on behalf of the Judicial Committee."}}, {"text": "Englhart", "label": "OTHER_PERSON", "start_char": 31233, "end_char": 31241, "source": "ner", "metadata": {"in_sentence": "Similarly, in Englhart' s(~ case, two rvants were e?gaged upon their master's business."}}, {"text": "Ricketts", "label": "OTHER_PERSON", "start_char": 32113, "end_char": 32121, "source": "ner", "metadata": {"in_sentence": "In Ricketts'(!)"}}, {"text": "Beard", "label": "OTHER_PERSON", "start_char": 32915, "end_char": 32920, "source": "ner", "metadata": {"in_sentence": "Beard's case(3) when compared with Ricketts' case(') brings out the difference."}}, {"text": "John Salmond", "label": "OTHER_PERSON", "start_char": 33302, "end_char": 33314, "source": "ner", "metadata": {"in_sentence": "Sir John Salmond (13th Edn."}}, {"text": "Atkinson", "label": "OTHER_PERSON", "start_char": 36006, "end_char": 36014, "source": "ner", "metadata": {"in_sentence": "As was observed by Lord Atkinson in Samson v. Aitchison(2) it is a matter of indifference whether a person be styled a servant or agent since it is the retention of control which makes the owner or the principal responsible."}}, {"text": "Willes", "label": "JUDGE", "start_char": 37088, "end_char": 37094, "source": "ner", "metadata": {"in_sentence": "This extension was made by Willes J. in Barwick\n\nv. English Joint Stock Bank(')."}}, {"text": "Cockburn", "label": "JUDGE", "start_char": 38076, "end_char": 38084, "source": "ner", "metadata": {"in_sentence": "The true rule in such cases is the one stated by Cockburn C. J. in Storey v. Ashton(') thus :\n\n\" .... that the master is only responsible so long as the servant can be said to the doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant.\"", "canonical_name": "H Cockburn"}}, {"text": "Lush", "label": "JUDGE", "start_char": 38324, "end_char": 38328, "source": "ner", "metadata": {"in_sentence": "or as Lush J. put it,\n\n\"The question in all such cases as the present is whether the servant was doing that which the master employed him to do.\""}}, {"text": "Carlo", "label": "GPE", "start_char": 38683, "end_char": 38688, "source": "ner", "metadata": {"in_sentence": "In Ormrod and another v. Crosville Motor Services Ltd., and another(2) the owner was attending the Monte Carlo motor car rally."}}, {"text": "Birkenhead", "label": "GPE", "start_char": 38746, "end_char": 38756, "source": "ner", "metadata": {"in_sentence": "He asked a friend to drive the car from Birkenhead to Monte Carlo."}}, {"text": "Monte", "label": "GPE", "start_char": 38760, "end_char": 38765, "source": "ner", "metadata": {"in_sentence": "He asked a friend to drive the car from Birkenhead to Monte Carlo."}}, {"text": "Singleton", "label": "JUDGE", "start_char": 39018, "end_char": 39027, "source": "ner", "metadata": {"in_sentence": "Singleton, L. J. observed :\n\n\"It has been said more than once that a driver of a motor car must be doing something for the owner of the car in order to become an agent of the owner."}}, {"text": "Monte Carlo", "label": "GPE", "start_char": 39554, "end_char": 39565, "source": "ner", "metadata": {"in_sentence": "The mere fact of consent by the owner to the use of a chattel is not proof of agency, but the purpose for which this car was being taken down the road on the morning of the accident was either that it should be used by the owner, the third party, or that it should be used for the joint purposes of the male plaintiff and the third party when it reached Monte Carlo.\""}}, {"text": "Denning", "label": "JUDGE", "start_char": 39574, "end_char": 39581, "source": "ner", "metadata": {"in_sentence": "Lord Denning (then Lord Justice) observed :\n\n\"It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment."}}]}
{"document_id": "1966_3_543_551_EN", "year": 1966, "text": ",, __ ,\n\nRANJIT SINGH\n\nPRITAM SINGH & ORS.\n\nFebruary 8, 1966\n\n(P. B. GAJENDRAGADKAR C. J., K. N. WANCHOO, J.C. SHAH, s. M. SJKRI and v. RAMASWAMI JJ.]\n\nRepresentation of the People A.ct (43 of 1950), s. 33(5)-Requlremenu of section-Copy of electoral roll whether to be filed by candldat•\n\nwith each nominaticn paper-Copy of electoral roll of assembly constituency whether can be filed in election for Par/iament-'Part', of electoral C roll to be filed-Filing of incomplete copy of 'parf whether defect of substantial character for the purpose of s. 36( 4).\n\nThe appellant's election to Parliament was challenged by the first respond<lnt on the ground that the nomination papers of the third candidate, W, had been wrongly rejected by the returning officer and this had mat&- rially affected the result of the election.\n\nW had filed three nomination papers with on• only of which he had filed a copy of the electoral roll of the assembly constituency in purported compliance with s. 33(5) of the ReprOllentation of the People Act, 1950.\n\nThe nomination paper with which W had filed the said copy was rejected on account of technical defects; the other two were rejected because no such copy was filed with them. The Election Tribunal dismissed the first respondent's petition holding that the returning officer had rightly rejected the nomination papers of W. The High Court took the opposite view and set aside the election.\n\nThe appellant came to this Court by certificate and contended that W had not complied with s. 33(5) because (i) under that section a copy of the electoral roll must be produced with every nomination paper, (ii) W had filed a copy of the electoral roll of the assembly CODlltituency and not of the Parliamentary constituency, (iii) the copy produced was not a complete copy of the relevant 'part' of the electoral roll. 1 ;{, HELD : ( i) The returning officer was wrong in not looking at the copy of the electoral roll filed with one of the nomination papers filed by W when dealing with the other nomination papers filed by him. Section 33(5) does not require that a copy must be filed with each nomination paper or that any copy should be filed al all, for the candidate is given the alternative to produce before the returning officer sach copy at the time of scrutiny. The purpose of filing the copy is to ensure that the returning officer is able to check whether the candidate concerned is qualified or not and that purpose would be effectively served even if only one copy is filed with one nomination paper and no copies are filed with the other nomination papers by the said candidate. [547 F-548 DJ\n\n(ii) The electoral roll for a parliamentary constituency is made up by stitching together the electoral rolls of the assembly constituencies comprised therein. Therefore if a candidate files a copy of the electoral roll of an assembly constituency that copy is sufficient to show that he is an elector in the parliamentary constituency in which that assembly constitueacy is includecl.\n\nW had filed copy of the assembly constituency in which he was recorded as an elector and the High Court was right in rejecting the contention based on the fact that the copy of the roll 9f the parliamentary constituency was not filed.\n\n[548 G, HJ\n\n544 SUPREME COURT REPOllTS\n\n(1966] 3 S.C.R.\n\n(iii) Under r. 5 of the Registration of Electors Rules, 1960 it is provided that \"the roll shall be divided into convenient parts which shall bo numborod conaecutiYely\". When 1. 33(5) refora to a copy of the relevant parts of the electoral roll it means a part as defined in r. 5. In producing not the full part but only a portion of tho electoral roll in which be wu recorded 81 an elector W did fail to comply with the requirements of s. 33(5). A complete copy would carry the various amend\n\nmenlll made in the roll and enablo the returning officer to see whether the name of the candidate continued in the roll for the whole of the relevant period.\n\nThe High Court waa not right in illl view that the production of an incomplete copy was not a defect of substantial character which would make tho nomination paper liablo to bo rejected. Tho nominatiOll papen of W were rightly rejected by tho ro<urning officer though for dift'eront reasona.\n\n(549 D; 551 E-F) CI\\'IL APPELLATE JURISDICTION : Civil Appeal No. 459 of 1965.\n\nAppeal by special leave from the judgment and order dated July 14, 1964 of the PuRjab High Court in First Appeal from Ordet\n\nNo. 1-E of 1964.\n\nBishan Narain, J. B. Dadachanji, 0. C. Mathur and Ravinder\n\nNarain, for the appellants.\n\nD S. S. Shukla, for respondent No. I.\n\nThe Judgment of the Court was delivered by Wandloo, J, This is an appeal by special leave from the judg ment of the Punjab High Court. fn the general election held in 1962 for Parliament (House of the People), the appellant was elected from the Sangrur parliamentary constituency. Pritam Singh respondent was also one of the contesting candidates but lost in the election. Thereupon he tiled an election petition against the appellant challenging his election on a number of grounds. In the present appeal we are only concerned with one ground, and that was that the nomination papers of one of the candidates for the election, namely, Wazir Singh, had bee11 rejected improperly by the returning officer. Wazir Singh had filed three nomination papers; with one of them he had attached a copy of a part of the electoral roll. He attached no such copy with the otber two nomination papers. When the nomination papers were being icrutinised, an objection was taken to the validity of the nomination papers. The returning officer first took up the nomination paper with which a copy of part of the roll had been filed and rejected it on the ground that the name of the parliamentary constituency and the name of the village and the assembly constituency and the part number of the electoral roll of the candidate was not mentioned and also because the name of the parliamentary constituency (House of the People) of the proposer was not given. After rejecting this nomination paper, the , eturning officer took up the other two nomination papers and rejected them on the ground that a copy of the electoral roll of the constituency concerned or of the relevant part thereof or a certified\n\n' ..\n\n_, ,\n\n~-·\n\nll, ANJIT SINGH v. J.>lllTAM SINGH (JJ:anchoo, J.) 545\n\ncopy of the relevant entries had not been filed along with these nomination papers. It may be added that the returning officer refused to look into the copy of the part of the roll which Wazir Singh had filed along with his nomination paper which the returning officer had already rejected before he took up the other nomination papers.\n\nThe main contention of respondent Pritam Singh in the election petition was that the returning officer was wrong in not looking into the copy of the part of the roll which had been filed with the first nomination paper ef Wazir Singh and that merely because that nomination paper had been rejected, the returning officer was not precluded from looking into the copy of the part of the roll which had been produced with that nomination paper for the purpose of scrutiny of the other two nomination papers. The appellant on the other hand contended that the nomination papers had been rightly rejected, and this contention was based on three points raised on his behalf, namely-(i) that a copy of the electoral roll of that constituency or a relevant part thereof or a certified copy of the relevant entries of such roll should have been produced with each nomination paper separately; (ii) in any case the copy produced should have been of the parliamentary constituency and not of the assembly constituency; and (iii) that the copy produced of the part of the roll was not a complete copy of the part and therefore was not a compliance with the requirements of s. 33 (5) of the Representation of the People Act, No. 43 of 1950, (hereinafter referred to as the A, ct).\n\nThe Election Tribunal seems to have taken the view that the copy filed along with the first nomination paper could not be looked into when the returning officer came to scrutinise the other nomination papers, even if it might be assumed to be a copy of the parliamentary electoral roll. It further held that even if the copy could be looked into, it was not a complete copy and therefore there was no compliance with s. 33 (5) of the Act and in consequence the Tribunal held that the returning officer was justified in rejecting the nomination papers notwithstanding the provisions of s. 36 (4) of the Act.\n\nPritam Singh then went in appeal to the High Court. The High Court held that the returning officer was wrong in not looking into the copy which had been produced along with the first nomination paper, and that the copy produced, though it was apparently of an assembly constituency, could also be taken to be a copy of the parliamentary roll. Lastly on the question whether the copy produced was a complete copy or not, the High Court held that the copy actually produced, though it admittedly did not contain certain pages, was sufficient for the purposes of s. 33 (5) of the Act. lo this view, the High Court held that one of the nomination papers of\n\nSUPREME COURT REPORTS fl %6] 3 S.C.R.\n\nWazir Singh was improperly rejected and in consequence of that the result of the election was materially affected. It therefore set aside the election. The High Court having refused to grant a certificate, the appellant applied to this Court for special leave which was granted; and that is how the matter has come before us.\n\nThe same three points which were urged before the Tribunal on behalf of the appellant have been raised before us. In the first place it is urged that the necessary copy required under s. 33 (5) of the Act must be produced with every nomination paper, and that it is not enough where more nomination papers than one are filed that a copy should have been filed with only one of them. Secondly it is urged that the copy produced was of the assembly constituency while it should have been of the parliamentary (House of the People) constituency. Lastly the argument is that in any case the copy produced was not complete and therefore there was no compliance with s. 33 (5) of the Act. The returning officer therefore was justified in rejecting the nomination paper under s. 36 (2) (b) of the Act and that s. 36 ( 4) did not apply in the circumstances of the case.\n\nWe shall deal with these points seriatim.\n\nSection 32 at the relevant time provided that \"any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act.\"-Section 4 (d) of the Act requires that in the case of any other seat for the House of the People besides those mentioned in els. (a), (b) and (c) of that section, a person has to be an elector for any parliamentary constituency (House of the People) to be entitled to stand for election to the House of the People.\n\nIt is with this qualification alone that we are concerned in the present appeal. \"Elector\" is defined ins. (2) (c) of the Act as meaning \"in relation to a constituency a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950.\" Therefore if a person is an elector in a parliamentary (House of the People) constituency and is not subject to any disqualification he can stand for election to the House of the People from any constituency.\n\nThen we come to s. 33 (5). The object of this provision obviously is to enable the returning officer to check whether the person standing for election is qualified for the purpose. The electoral roll of the constituency for which the returning officer is making scrutiny would be with him. and it is not necessary for a candidate to produce the copy of the roll of that constituency. But where the candidate belongs to another constituency the returning officer would not have the roll of that other constituency with him and therefore tho provision contained in s. 33 (5) has been made by he lcJ:!islatur.e to enable the returning officer to check that the candidate ts qualified\n\nJ •\n\nB •\n\nD •\n\nfor .... namg for election. For that purpose the candidate is given the choice either to produce a copy of the electoral roll of that other constituency, or of the relevant part thereof or of a certified copy of the relevant entries in such roll before the returning officer at the time of the scrutiny, if he has not already filed such copy with the nomination paper. Naturally where the candidate is standing for a parliamentary constituency (House of the People) he will have to file a copy of the roll of some parliamentary constituency. The argument on behalf of the appellant is that under the proviso to s. 33(6) a candidate is entitled to file upto four nomination papers and therefore when s. 33(5) says that a copy would be filed with the nomination paper it requires that one copy should be filed with each nomination paper and if that has not been done there is no compliance with s. 33(5). Section 33(5) does not require that a copy must be filed with each nomination paper for, the candidates is given the alternative to produce before the returning officer such copy at the time of the scrutiny. So the candidate need not file any copy with the nomination paper and it is enough if he has a copy in his possession which he produces before the returning officer at the time of the scrutiny. Further there is nothing in s. 33(5) which requires that if a candidate bas\n\n(say) filed four nomination papers be should have four copies with him to produce before the returning officer at the time ofthe scrutiny. It would in our opinion be enough if he has one copy with him at the time of the scrutiny and shows it again and again as each nomination paper is taken up for scrutiny by the returning officer. We see no sense in holding that in such a situation the candidate should arm himself with four copies for the purpose of showing the copy to the returning officer at the time of scrutiny.\n\nThe same copy in our opinion can be produced again and again before the returning officer as he takes up the scrutiny of each of the nomination papers filed on behalf of a candidate. If that is so we see no difficulty in holding that where a number of nomination papers have been filed and a copy has been filed with one of them, that is enough. Again we see nothing ins. 33(5) which prevents a returning officer from looking at the copy filed with one nomination paper, even after that nomination paper has been rejected or with a nomination paper which is pending before him for scrutiny, when he comes to deal with other nomination papers.\n\nAs we have said before, the purpose of filing the copy is to ensure that the returning officer is able to check whether the candidate concerned is qualified or not and that purpose would be effectively served even if only one copy is filed with one nomination paper and no copies are filed with the other nomination papers. It may\n\ne that for certain purposes each nomination paper stands by itself, but so far as filing of a copy with a nomination paper under S: ~3(5) is c~:mcerned., we .must look at he object be!J!nd the pro- VISlon, and 1f that object 1s served by filmg a copy with one nomi-\n\nSUPRBMB ~URT REPORTS\n\n(1966] 3 S.C.R.\n\nnation paper, we see no sense in requiring that where a number of nomination papers are filed there should be a copy with each nomination paper. There is nothing in s. 33(5) which prevents the returning officer from looking at a copy filed with a nomination paper which has been rejected or which is still to be scrutinised for the purpose of satisfying himself when he takes up the other nomination papers that the candidate is qualified to stand. Nor has any rule been shown to us which in terms prevents the returning officers from looking into a copy which has been filed with a nomination paper (which might have already been rejected) for the purpose of scrutinising other nomination papers of the same candidate. If the purpose of s. 33(5) can be served by the production of one copy at the time of scrutiny when it has not been filed with the nomination paper, we do not see why that purpose could not be served by filing a copy with one nomination paper where more nomination papers than one have been filed by the same candidate. We therefore agree with the High Court that the returning officer was wrong in not looking at the copy filed with one nomination paper when he was dealing with other nomination papers of\n\nWazir Singh.\n\nThis brings us to the second point raised before us, namely, that the copy filed was not of the parliamentary (House of the People) constituency but of the assembly constituency. This contention also has no force. If we look at the Representation of the People Act, 1950 we find that Part III thereof provides for the preparation of electoral rolls for assembly constituencies.\n\nSo far as parliamentary constituencies (House of the People) arc concerned, s. I 3D provides inter alia that the electoral roll for every parliamentary constituency shall consist of the electoral rolls of so much of the assembly constituencies as are comprised within that parliamentary constituency; and it shall not be necessary to prepare or revise separately the electoral roll for any such parliamentary constituency. It is clear therefore that the electoral roll for a parliamentary constituency is no other than the electoral roll for the assembly constituencies comprised within that parliamentary constituency. It is not in dispute that the electoral roll for a parliamentary constituency is made up by stitching together the electoral rolls of the assembly constituencies comprised therein.\n\nTherefore if a candidate files a copy of the electoral roll of an assembly constituency, that copy is sufficient to show that he is an elector in the parliamentary constituency in which that assembly constituency is included. The argument that the copy filed in the present case did not comply with s. 33(5) as it was not a copy of the parliamentary constituency must therefore fail. The copy was of an assembly constituency in this case, and if the candidate was an elector in the assembly constituency he would be an elector in the parliamentaiy (House of the People) constituency which includes\n\n-...\n\nB •\n\nF •\n\nllANJIT SINGH v. PRITAM SINGH (Wanchoo, J.) 549\n\nthat assembly constituency. The High Court therefore was rit in rejecting the contention that the copy of the roll of the parhamentary (House of the People) constituency was not filed.\n\nThis brings us to the last point raised on behalf of the appellant, namely, that the copy filed was not a complete copy and !herefoe there was no compliance with s. 33(5) of the Act. It 1s not m dispute that the copy filed was not a complete copy. The appellant produced a complete copy of that part of the roll and that showed that pages 19 to 22 and page 25 of that part of the roll were not filed by Wazir Singh. Now s. 33 (5) gives three options to a candidate in the matter of filing a copy. He may file either a copy of the electoral roll which means a copy of the entire electoral roll of the parliamentary (House of the People) constituency, or a copy of the relevant parts thereof, which means the whole of the parts concerned. Under the Registration of Electors Rules,\n\n1960 (hereinafter referred to as the Rules), it is provided by r. 5 that \"the roll shall be divided into convenient parts which shall be numbered consecutively\". Therefore when s. 33(5) refers to a copy of the relevant parts thereof, it means a part as defined in r. 5 above. Besides these two alternatives, a candidate has a third alternative, namely, the production of certified copies of the entries of his name and the name of the proposer from any roll.\n\nIn the present case, the candidate Wazir Singh chose the second alternative, namely, he produced a copy of the relevant part thereof. The part in question produced in this case was part IV. of the Simla legislative assembly electoral roll. Section 33(5) therefore required the candidate (namely, Wazir Singh) to produce the whol1:\n\nof this part. It is not in despute that he did not produce the whole of this part and the question is whether his failure to do so would result in the rejection of his nomination paper.\n\nTo decide this question it is necessary to refer to the Rules.\n\nRule IO requires that \"as soon as the Roll for a constituency is ready, the registration officer shall publish it in draft by malcing a copy thereof available for inspection and displaying a notice in form 5.\" Under r. 11, the registration officer is required to give further publicity to the roll and to the notice in form 5. Thereafter r. 12 provides for claims for the inclusion of a name in the roll and objections to an entry therein. After such claims and objections have been made, the registration officer has to consider them under r. 18. Under r. 19, he gives a hearing if necessary and thereafter he orders the inclusion of names in the roll or exclusion of names from the roll under r. 20. Then under r. 22, the registration officer has to prepare a list of amendments to carry out his decisions under rr. 18, 20 and 21 and he may correct any clerical or printing errors or other inaccuracies subsequently discovered in the roll. He then publishes the roll together with the list of\n\n55Q SUPREME COtaT REPORTS\n\n[ 1966) 3 S.C.R.\n\namendments by making a complete copy thereof available for inspection, and displaying a notice in form 16. On such publication the roll together with the list of amendments shall be the electoral roll of the constituency.\n\nThe scheme of these Rules therefore, is that a draft is first prepared. Thereafter claims and objections are disposed of. If any claim is admitted, the name is included in the roll, if any objection is allowed the name already in the draft roll (or may be in an earlier amendment) is deleted. This inclusion or deletion is made by publishing amendments to the roll and thereafter the draft roll along with one or more amendments becomes the electoral roll of the constituency. It will be seen from this that where a name is excluded on an objection being allowed, the name is not scored out. What the rule provides is that deletion of a name from a draft or even from an earlier amendment made by inclusion by the registration officer, is included in the list of amendments published Under r. 23, an appeal is allowed from any decision of the regi!tration officer including a name or excluding a name, so that where the registration officer includes a name after bearing a claim that is subject to an appeal and the appellate officer may reject the claim whereupon the amendment made by the registration officer by including a name may fall through. Under sub r. (5) of r. 23 of the Rules, the registration officer is given power to cause such amendments to be made in the roll as may be necessary to give effect to the decisions of the appellate officer. This shows that when s. 33 (5) requires that a copy of the relevant part of the roll may be filed or produced the copy is to be a complete copy along with all amendments, for it may be that even though a name may be included ; n the first amendment by the registration officer it may be excluded in the second amendment if the appellate officer has rejected the claim.\n\nWe have already said that the object of producing the copy under s. 33(5) is to enable the returning officer to check whether the candidate and the proposer are qualified or not, one for the purpose of standing and the other for the purpose of proposing.\n\nIn order to check this, the returning officer must have a complete copy of the relevant part. If the copy is not a complete copy it is possible that a name which may have been included in the draft or in the first amendment may have been excluded in the second amendment made on the basis of an order of the appellate officer.\n\nTherefore to enable the returning officer to decide whether, a candidate is qualified to stand or whether a proposer is qualified to propose he must have a complete copy of the relevant part of the roll.\n\nIfhe has not a complete copy he will not be able to decide.wbeber the candidate or the proposer has the necessary quabficallon.\n\nIn the present case it is not in dispute that Wazir Singh did not produce a complete copy of Part IV of the roll. Part IV consisted\n\n> _,.\n\n...\n\n; •\n\nof 25 pages; of these Wazir Singh did not produce pages 19 to 22 and page 25. Page 25 as appears from the complete copy of the roll filed by the appellant contained a second list of amendments.\n\nIt is true that Wazir Singh's name did appear in the first amendment at No. 1853; but that as we have already shown was not conclusive for the second amendment which was not produced might have deleted that name. Therefore the copy produced by W azir Singh not being complete was not sufficient to enable the returning officer to decide whether he was qualified to stand or not for his name might have been deleted in the second list of amendments in which case he would not have been qualified. It is true that in actual fact it appears from the copy which was produced by the appellant before the Tribunal that Wazir Singh's name was not deleted in the second list of amendments; but that appears from the copy produced by the appellant before the Tribunal and not from the copy . produced by Wazir Singh before the returning officer.\n\nSection 33(5) requires that it is the copy produced by the candidate which should show whether he is qualified or not and for that purpose a copy produced by the candidate should be complete whether it is of the roll or of the relevant part thereof. To such a case s. 36( 4) has no application. That provision is to the effect that the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. But the non-production of a complete copy of the relevant part in our opinion is a defect of a substantial character for it makes it impossible for the returning officer to decide whether the candidate is qualified or not. Qualification for standing for election is a matter of substantial character. We are therefore of opinion that the High Court was not right in the view it took that the production of an incomplete copy of the relevant part was not a defect of a substantial character which would make the nomination paper liable to be rejected. The fact that the returning officer rejected the nomination paper on some other ground is of no consequence. If there was in truth a defect of a substantial character in the matter of compliance with s. 33 of the Act, the nomination paper was liable to be rejected, and if it was so rejected, rejection would be proper whatever may have been the reason given by the returning officer.\n\nIn the present case we are of the opinion that the production of a copy of the electoral roll which is incomplete is a defect of a substantial character. This defect will invalidate all the nomination papers. The nomination papers of Wazir Singh were rightly rejected by the returning officer, though he gave different reasons for doing so.\n\nThe appeal therefore succeeds and is hereby allowed with costs.\n\nThe election petition is dismissed. Pritam Singh, respondent, will pay the costs.\n\nAppeal allowed.", "total_entities": 57, "entities": [{"text": "RANJIT SINGH", "label": "PETITIONER", "start_char": 9, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "RANJIT SINGH", "offset_not_found": false}}, {"text": "PRITAM SINGH & ORS", "label": "RESPONDENT", "start_char": 23, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "PRITAM SINGH & ORS", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 63, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO, J", "label": "JUDGE", "start_char": 91, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 108, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "J.C. 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B. Dadachanji, 0."}}, {"text": "Ravinder\n\nNarain", "label": "LAWYER", "start_char": 4534, "end_char": 4550, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder\n\nNarain, for the appellants."}}, {"text": "D S. S. Shukla", "label": "LAWYER", "start_char": 4573, "end_char": 4587, "source": "ner", "metadata": {"in_sentence": "D S. S. Shukla, for respondent No."}}, {"text": "Wandloo", "label": "JUDGE", "start_char": 4655, "end_char": 4662, "source": "ner", "metadata": {"in_sentence": "I.\n\nThe Judgment of the Court was delivered by Wandloo, J, This is an appeal by special leave from the judg ment of the Punjab High Court."}}, {"text": "Pritam Singh", "label": "RESPONDENT", "start_char": 4893, "end_char": 4905, "source": "ner", "metadata": {"in_sentence": "Pritam Singh respondent was also one of the contesting candidates but lost in the election.", "canonical_name": "PRITAM SINGH & ORS"}}, {"text": "Wazir Singh", "label": "OTHER_PERSON", "start_char": 5248, "end_char": 5259, "source": "ner", "metadata": {"in_sentence": "In the present appeal we are only concerned with one ground, and that was that the nomination papers of one of the candidates for the election, namely, Wazir Singh, had bee11 rejected improperly by the returning officer.", "canonical_name": "W azir Singh"}}, {"text": "s. 33", "label": "PROVISION", 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true}}, {"text": "s. 33", "label": "PROVISION", "start_char": 11675, "end_char": 11680, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1950", "statute": "the Representation of the People Act, 1950"}}, {"text": "s. 33", "label": "PROVISION", "start_char": 12222, "end_char": 12227, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1950", "statute": "the Representation of the People Act, 1950"}}, {"text": "s. 33(6)", "label": "PROVISION", "start_char": 12967, "end_char": 12975, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(5)", "label": "PROVISION", "start_char": 13055, "end_char": 13063, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(5)", "label": "PROVISION", "start_char": 13249, "end_char": 13257, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 33(5)", "label": "PROVISION", "start_char": 13259, "end_char": 13272, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(5)", "label": "PROVISION", "start_char": 13689, "end_char": 13697, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(5)", "label": "PROVISION", "start_char": 15708, "end_char": 15716, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(5)", "label": "PROVISION", "start_char": 16281, "end_char": 16289, "source": "regex", "metadata": {"statute": null}}, {"text": "If we look at the Representation of the People Act, 1950", "label": "STATUTE", "start_char": 16999, "end_char": 17055, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 33(5)", "label": "PROVISION", "start_char": 18265, "end_char": 18273, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(5)", "label": "PROVISION", "start_char": 18978, "end_char": 18986, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 19236, "end_char": 19241, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration of Electors Rules", "label": "STATUTE", "start_char": 19563, "end_char": 19593, "source": "regex", "metadata": {}}, {"text": "s. 33(5)", "label": "PROVISION", "start_char": 19773, "end_char": 19781, "source": "regex", "metadata": {"linked_statute_text": "Under the Registration of Electors Rules,\n\n1960", "statute": "Under the Registration of Electors Rules,\n\n1960"}}, {"text": "Section 33(5)", "label": "PROVISION", "start_char": 20296, "end_char": 20309, "source": "regex", "metadata": {"linked_statute_text": "Under the Registration of Electors Rules,\n\n1960", "statute": "Under the Registration of Electors Rules,\n\n1960"}}, {"text": "s. 33", "label": "PROVISION", "start_char": 23280, "end_char": 23285, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33(5)", "label": "PROVISION", "start_char": 23694, "end_char": 23702, "source": "regex", "metadata": {"statute": null}}, {"text": "W azir Singh", "label": "OTHER_PERSON", "start_char": 25136, "end_char": 25148, "source": "ner", "metadata": {"in_sentence": "Therefore the copy produced by W azir Singh not being complete was not sufficient to enable the returning officer to decide whether he was qualified to stand or not for his name might have been deleted in the second list of amendments in which case he would not have been qualified.", "canonical_name": "W azir Singh"}}, {"text": "Section 33(5)", "label": "PROVISION", "start_char": 25730, "end_char": 25743, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36( 4)", "label": "PROVISION", "start_char": 25995, "end_char": 26004, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 26942, "end_char": 26947, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_552_556_EN", "year": 1966, "text": "BABAN SINGH AND ANR.\n\nJAGDISH SINGH & ORS.\n\nFebruary 8, 1966\n\n[K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACHAWAT JJ.j\n\nIndian Penal Code, 1860, ss. 191, 192 and 199-F/llng affidavit containing false statements before High Court-Offence under which section commuted.\n\nCode of Criminal Procedure, ss. 476 and 419-A(6)-0fiences by witnesses under ss. 191 and 192 Penal Code-S. 479..A app/le, and octkin\n\nwnder s. 476 c1111110t be taken.\n\nThe appellants made affidavits in the High Court dcnyinii receipt of money '1}' way of compromise in a first appeal pending before that Court. The High Coun ordered the Registrar to hold an enquiry. The\n\nResistrar after recording the evidence of the parties reported that the appellants' denial of receipt of money was false. Thereafter an application was made to the High Court under s. 476 of the Code of Criminal Procedure which was kept pending and taken up after the appeal was decided.\n\nD Tho Hiab Coun held that tho olfence committed by tho appellan:a - ou under 8. 199 Indian Penal Code and ordered the Registrar to file a complaint.\n\nThe appellanta came to this Coun under\n\n1. 4768.\n\nThe questions for consideration were;\n\n(I) whether the otrence committed by the appellants fell under s. 191 and 192 of the Penal Code or under 8. 199, and (2) whether proceedings under s. 479-A could be llleo against the appellants, for if they could be, then action ouiibt to have been taken under that section and s. 476 could not be invoked.\n\nHELD : (i) When the appellants made declarations in their affidavits which were tendered in tho High Coun to ho taken into consideration intended the statements to appear in evidence, and so appearing, to came tho coun to ontenain an erroneous opinion rqarding the compromile.\n\nTheir offence came within the words of ss. 191/192 rather than a. 199 of Ille Indian Penal Code. (556 CJ\n\n(ii) In respost of offences under ss. 191 and 192 of tho Indian Penal Code when committed by a witness action under s. 479-A alone can be taken and action under s. 476 is ruled out because of sub.,., (6) of\n\n1. 479-A. [SS6 E..GJ\n\nCRIMINAL APPELi.All! JUR1smcnoN : Criminal Appeal No. 74 of 1964.\n\nAppeal from the judgment and order dated October 3, 1963 of the Patna High Court in Criminal Misc. Case No. 366of1956.\n\nNaunit Lal, for the appellant.\n\nThe respondent did not appear.\n\nThe Judgment of the Court was delivered by Hldayatullah, J.-This is an appeal under s. 476-B of the Code of Criminal Procedure by one Baban Singh and his wife Dharichhan Kuer against a judgment and order of the High Court at Patna\n\n• D ...\n\nBABAN v. JAGDISH (Hldayatullah, !.) 553\n\nordering the Registrar to file a complaint against them under s. 199 of the Indian Penal Code for making false affidavits. The respondents are persons who had moved the High Court under s. 476 of the Code for the prosecution of the appellants in the following circumstances.\n\nJagdish Singh and Parmhans were appellants in F. A. 301 of 1952 in the High Court at Patna. Mst. Dharichhan Kuer was respondent No. 13 in that appeal. During the pendency of the appeal a compromise was said to have been arrived at between Dharichhan Kuer on the one hand and Jagdish Singh and Parmhans on the other. Dharichhan Kuer and Jagdish Singh swore an affidavit on June 22, 1953 in support of the petition for compromise which was filed in the High Court. Baban Singh's brother identified Dharichhan Kuer before the Oath Commissioner and Rs. 4,000 were paid to Dharichhan Kuer under the terms of the compromise in the Commissioner's presence. Dharichhan Kuer also passed a receipt and her thumb impression was identified by Baban Singh's brother. The petition of compromise was filed in court on July 13, 1953. The same day Baban Singh swore an affidavit (Ex. B) denying the compromise or that his wife had received Rs. 4,000.\n\nThis affidavit was filed in the High Court on July 31,\n\n1953. On September 9, 1953 Dharichhan Kuer also filed an affidavit (Ex. A) in support of her husband.\n\nAs the compromise was in dispute the High Court ordered the Registrar to hold an enquiry. Nine witnesses were examined on behalf of Jagdish Singh and Parmhans including the Oath Commissioner. Dharichhan Kuer and her husband Baban Singh gave evidence on their own behalf. The Registrar reported on July 14, 1954 that the compromise was genuine and that Dharichhan Kuer had, in fact, sworn the affidavit before the Oath Commissioner and had received Rs. 4,000. B. N. Rai and Kanhaiya Singh, JJ. accepted the report by their order dated October 5, 1956. One of the terms of the rompromise was that if Dharichhan Kuer resiled from it the amount of Rs. 4,000 would be refunded with costs Rs. 500. Dharichhan Kuer deposited this amount in court on October 9, 1956. The first appeal was then heard and disposed of.\n\nThe application under s. 476 out of which this appeal has a, risen was filed during the pendency of the first appeal and was taken up for hearing after the appeal was disposed of. A question arose whether a c@mplaint for prosecution of Baban Singh and Dharichhan Kuer for an offence under s. 193, Indian Penal Code could be filed in the High Court because Baban Singh and Dharichhan Ku.er had deposed not before the court but before the Registrar. Further s. 479A (to which we shall refer presently) was introdueed from January l, 1956 and thus on October 5,\n\n1956, when the High Court accepted the report of the Registrar, it was in force. The Divisional Bench did not consider taking action under s. 193 because of s. 479A and it appears that the counsel for Jagdish Singh and Parrnhans also conceded that no prosecution could take place under that section. The High Court, however, considered whether action should be taken in respect of the two affidavits (Exs. A and B). It is not necessary to refer to the statements in these affidavits because we are not considering whether they were true or false. It was contended before the High Court that a prosecution under s. 199 of the Indian Penal Code would be equally covered by s. 479A and as the procedure under that section was not followed an application for prosecution under s. 476 was barred. This contention was not accepted by the High Court and after going into the expediency of the prosecution the learned Judges ordered the Registrar of the High Court to file a complaint before the appropriate authority for the prosecution of the appellants. The appellants now appeal as of right under s. 4768.\n\nAt the hearing before us there was no representation on behalf of the respondents. Although notices were issued to Jagdish\n\nSingh, Parrnhans and the State Government, none appeared.\n\nOn hearing the learned counsel for the appellants we are satisfied that tltis appeal must succeed. The short question in this case is whether s. 476 could at all be invoked because of the bar contained in s. 479A sub s. (6). The sixth sub-section, to which we have referred lays down that no proceedings shall be taken under ss. 476 to 479 (both inclusive) for the prosecution of a person for giving or fabricating false evidence if in respect of such a person proceedings may be taken under s. 479A. The point to decide, therefore, is whether proceedings under s. 479A could be taken against Baban Singh and his wife, for if they could be, then action ought to have been taken under that section and s. 476 cannot be invoked. Section 479A, in so far as it is relevant to our purpose, provides as follows :-\n\n\"479-A. Procedure in certain cases of false evidence.-\n\n( I) Notwithstanding anything contained in section 476 to 479 inclusive, when any Civil, Revenue or Criminal G Court is of opinion that any person appearing !'efore it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence .for. he purpose. or being used in any stage of the 1ud1c1al prceedmg, and that for the eradication of the evils of perjury and H\n\nfabricatin of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been\n\n• . '\n\nBABAN v. JAGDISH (Hidayatullah, J.) 555\n\ncommitted by him, the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefor and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in writing signed by the presiding officer of the Court setting forth the evidence which, in the opinion of the Court, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction, and may, if the accused is present before the Court, take sufficient security for his appearance before such Magistrate and may bind over any person to appear and give evidence before such Magistrate : Provided that where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint.\n\nThe learned Judges in the High Court did not take action in respect of the offence of giving false evidence on oath, as defined in s. 191 and punishable under s. 193 of the Indian Penal Code, because they were of the opinion thats. 479-A of the Code of Criminal Procedure would be applicable to that offence even though evidence was recorded by the Registrar. The High Court selected for action the offence in relation to the two affidavits holding that prima facie an offence under s. 199, Indian Penal Code was committed.\n\nThat offence is also punishable in the same manner as if false evidence was given. The difference between ss. 191 and 199 is this; Section 191 deals with statements and declarations falsely made by a person legally bound by an oath or by an express provision of law to state the truth. Section 199 deals with statements and declarations made voluntarily provided they are capable of being -used as evidence and which the court is bound to receive as evidence.\n\nThe matter has to be considered from three standpoints. Does the swearing of the false affidavits amount to an offence under s. 199, Indian Penal Code or under either s. 191 or 192, Indian Penal Code ? If it comes under the two latter sections, the present prosecution cannot be sustained, Section 199 deals with a declaration and does not state that the declaration must be on oath.\n\nThe only condition necessary is that the declaration must be capable of being used as evidence and which any court of justice or any public servant or other person, is bound or authorised by law to receive as evidence. Section 191 deals with evidence on oath and\n\ns. 192 with fabricating false evidence. If we consider this matter from the standpoint of s. 191, Indian Penal Code the offence is constituted by swearing falsely when one is bound by oath to state the truth because an affidavit is a declaration made under an oath.\n\nThe definition of the offence of giving false evidence thus applies to the affidavits. The offence may also fall within s. 192. It lays down inter a/ia that a person is said to fabricate false evidence if he makes a document containing a false statement intending that such false statement may appear in evidence in a judicial proceeding and so appearing in evidence may caus~ any person who, in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding. When Baban Singh and Dharichhan Kuer made declarations in their affidavits which were tendered in the High Court to be taken into consideration, they intended the statements to appear in evidence in a judicial proceeding, and so appearing, to cause the court to entertain an erroneous opinion regarding the compromise. In this way their offence came within the words of ss. 191/192 rather than s. 199 of the Indian Penal Code. They were thus prima facie guilty of an offence of giving false evidence or of fabricating false evidence for the purpose of being used in a jadicial proceeding.\n\nSection 479-A lays down a special procedure which applies to persons who appear as witnesses before civil, revenue or criminal courts and do one of two things : (i) intentionally give false evidence in any stage of the judicial proceeding or (ii) intentionally fabricate false evidence for the purpose of being used in any stage of the judicial proceeding. The first refers to an offence under s. 191/193 and the second to that under s. 192/193 of the Indian Penal Code. In respect of such offences when committed by a witness, action under s. 479-A alone can be taken. The appellants were witnesses in the inquiry in the High Court and they had fabricated false evidence. If any prosecution was to be started against them the High Court ought to have followed the procedure under s. 479-A of the Code of Criminal Procedure. Not having done so, the action under s. 476 of the Code of Criminal Procedure was\n\nnot open because of sub-s. ( 6) of s. 479-A and the order under appeal cannot be allowed to stand.\n\nIn the result tho appeal succeeds and is allowed. The order for the prosecution of the appellants is set aside. The complaint, if filed, shall be withdrawn.\n\nAppeal allowed.\n\n• D\n\n• F\n\nG .-", "total_entities": 110, "entities": [{"text": "BABAN SINGH AND ANR", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "BABAN SINGH AND ANR", "offset_not_found": false}}, {"text": "JAGDISH SINGH & ORS", "label": "RESPONDENT", "start_char": 22, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "JAGDISH SINGH & ORS", "offset_not_found": false}}, {"text": "February 8, 1966", "label": "DATE", "start_char": 44, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "February 8, 1966\n\n[K. SUBBA RAO, M. HIDAYATULLAH AND R. S. 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N. Rai", "label": "JUDGE", "start_char": 4450, "end_char": 4459, "source": "ner", "metadata": {"in_sentence": "B. N. Rai and Kanhaiya Singh, JJ."}}, {"text": "Kanhaiya Singh", "label": "JUDGE", "start_char": 4464, "end_char": 4478, "source": "ner", "metadata": {"in_sentence": "B. N. Rai and Kanhaiya Singh, JJ."}}, {"text": "October 5, 1956", "label": "DATE", "start_char": 4525, "end_char": 4540, "source": "ner", "metadata": {"in_sentence": "accepted the report by their order dated October 5, 1956."}}, {"text": "October 9, 1956", "label": "DATE", "start_char": 4733, "end_char": 4748, "source": "ner", "metadata": {"in_sentence": "Dharichhan Kuer deposited this amount in court on October 9, 1956."}}, {"text": "s. 476", "label": "PROVISION", "start_char": 4822, "end_char": 4828, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 193", "label": "PROVISION", "start_char": 5089, "end_char": 5095, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 5097, "end_char": 5114, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Dharichhan Ku.er", "label": "RESPONDENT", "start_char": 5172, "end_char": 5188, "source": "ner", "metadata": {"in_sentence": "A question arose whether a c@mplaint for prosecution of Baban Singh and Dharichhan Kuer for an offence under s. 193, Indian Penal Code could be filed in the High Court because Baban Singh and Dharichhan Ku.er had deposed not before the court but before the Registrar.", "canonical_name": "Dharichhan Ku.er"}}, {"text": "s. 479A", "label": "PROVISION", "start_char": 5256, "end_char": 5263, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "January l, 1956", "label": "DATE", "start_char": 5320, "end_char": 5335, "source": "ner", "metadata": {"in_sentence": "Further s. 479A (to which we shall refer presently) was introdueed from January l, 1956 and thus on October 5,\n\n1956, when the High Court accepted the report of the Registrar, it was in force."}}, {"text": "October 5,\n\n1956", "label": "DATE", "start_char": 5348, "end_char": 5364, "source": "ner", "metadata": {"in_sentence": "Further s. 479A (to which we shall refer presently) was introdueed from January l, 1956 and thus on October 5,\n\n1956, when the High Court accepted the report of the Registrar, it was in force."}}, {"text": "s. 193", "label": "PROVISION", "start_char": 5499, "end_char": 5505, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 479A", "label": "PROVISION", "start_char": 5517, "end_char": 5524, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Parrnhans", "label": "OTHER_PERSON", "start_char": 5579, "end_char": 5588, "source": "ner", "metadata": {"in_sentence": "The Divisional Bench did not consider taking action under s. 193 because of s. 479A and it appears that the counsel for Jagdish Singh and Parrnhans also conceded that no prosecution could take place under that section."}}, {"text": "s. 199", "label": "PROVISION", "start_char": 5971, "end_char": 5977, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 5985, "end_char": 6002, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 479A", "label": "PROVISION", "start_char": 6031, "end_char": 6038, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 476", "label": "PROVISION", "start_char": 6133, "end_char": 6139, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4768", "label": "PROVISION", "start_char": 6453, "end_char": 6460, "source": "regex", "metadata": {"statute": null}}, {"text": "Jagdish\n\nSingh", "label": "RESPONDENT", "start_char": 6578, "end_char": 6592, "source": "ner", "metadata": {"in_sentence": "Although notices were issued to Jagdish\n\nSingh, Parrnhans and the State Government, none appeared.", "canonical_name": "JAGDISH SINGH & ORS"}}, {"text": "s. 476", "label": "PROVISION", "start_char": 6788, "end_char": 6794, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 479A", "label": "PROVISION", "start_char": 6851, "end_char": 6858, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 476 to 479", "label": "PROVISION", "start_char": 6971, "end_char": 6985, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 479A", "label": "PROVISION", "start_char": 7138, "end_char": 7145, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 479A", "label": "PROVISION", "start_char": 7208, "end_char": 7215, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 476", "label": "PROVISION", "start_char": 7347, "end_char": 7353, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 479A", "label": "PROVISION", "start_char": 7373, "end_char": 7385, "source": "regex", "metadata": {"statute": null}}, {"text": "section 476 to 479", "label": "PROVISION", "start_char": 7554, "end_char": 7572, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 191", "label": "PROVISION", "start_char": 9158, "end_char": 9164, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 193", "label": "PROVISION", "start_char": 9186, "end_char": 9192, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 9200, "end_char": 9217, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 9272, "end_char": 9298, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 199", "label": "PROVISION", "start_char": 9510, "end_char": 9516, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 9518, "end_char": 9535, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 191 and 199", "label": "PROVISION", "start_char": 9658, "end_char": 9673, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Section 191", "label": "PROVISION", "start_char": 9683, "end_char": 9694, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Section 199", "label": "PROVISION", "start_char": 9838, "end_char": 9849, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 199", "label": "PROVISION", "start_char": 10138, "end_char": 10144, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 10146, "end_char": 10163, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 191", "label": "PROVISION", "start_char": 10180, "end_char": 10186, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 10195, "end_char": 10212, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 199", "label": "PROVISION", "start_char": 10303, "end_char": 10314, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Section 191", "label": "PROVISION", "start_char": 10617, "end_char": 10628, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 192", "label": "PROVISION", "start_char": 10662, "end_char": 10668, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 191", "label": "PROVISION", "start_char": 10752, "end_char": 10758, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 10760, "end_char": 10777, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 192", "label": "PROVISION", "start_char": 11049, "end_char": 11055, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "ss. 191", "label": "PROVISION", "start_char": 11848, "end_char": 11855, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 199", "label": "PROVISION", "start_char": 11872, "end_char": 11878, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 11886, "end_char": 11903, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 479", "label": "PROVISION", "start_char": 12068, "end_char": 12079, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 191", "label": "PROVISION", "start_char": 12462, "end_char": 12468, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 192", "label": "PROVISION", "start_char": 12502, "end_char": 12508, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 12520, "end_char": 12537, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 479", "label": "PROVISION", "start_char": 12609, "end_char": 12615, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 479", "label": "PROVISION", "start_char": 12849, "end_char": 12855, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 12865, "end_char": 12891, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 476", "label": "PROVISION", "start_char": 12930, "end_char": 12936, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 12944, "end_char": 12970, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 479", "label": "PROVISION", "start_char": 13011, "end_char": 13017, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_557_572_EN", "year": 1966, "text": "• '\n\nSTATE OF MADHYA PRADESH AND ORS.\n\nVISHNU PRASAD SHARMA AND ORS.\n\nF'ebruary 9, 1966\n\n(A. K. SARKAR, K. N. WANCHOO AND J. R. MUDHOLKAR JJ.J\n\nLand Acquisition Act (1 of 189'4), ss. 4, 5-A, 6, 17, 48 and 49- Notification under s. 4-lf could be followed by more than one notification under s. 6.\n\nAfter the issue of a notification under s. 4 (1) of the Land Acquisition Act, 1894, by which it was declared that lands in certain \\illages were likely to be needed for a public purpose, a number of notifications, in respect of different items of land specified in the notification under s. 4(1), were successively issued under s. 6.\n\nThe validity of the last of them was challenged by the respondents, by a writ petition in the High Court.\n\nThe High Court allowed the petition holding that a notification under s. 4(1) could be followed only by one notification under s. 6, and therefore it was not open to the Government to issue sucoessive notifications with respect to different parts of land comprised in one notification under s. 4.\n\nIn appeal to this Court, by the State, HELD : The High Court was right in holding that there can be Dll successive notifications under s. 6 with respect to land in a locality speci fled in one notification under s. 4(1). [572 C-DJ\n\nPer Sarkar, J. Sections 4, 5-A and 6 of the Act read together indicateo that the Act contemplates only, a single declaration under s. 6 in respect of a notification under s. 4. There is nothing in ss. 17 and 49(2)(3) to lead to a contrary view.\n\nThere is nothing in the Act to support the view that it is only a withdrawal under s. 48 that puts a notification under s. 4 completely out of the way. [560 G; 561 C; 561 BJ\n\nPer Wanchoo and Muclholkar, JJ. Sections 4, 5-A and 6 are integrally 11 conne.cted and without the notifications under ss. 4 and 6 no acquisition can take place, because, they are the basis of all proceedings which follow.\n\nThe notification under s. 4(1) specifies the locality in which the land is to be acquired and under s. 4(2) survey is made to decide what particular land in the locality specified in the notification is to be acquired.\n\nAnother purpose of the notification under s. 4(1) is to give opportuni!} to persons owning land in the locality to make objections under s. SA.\n\nSection S-A specifically provides that the Collector shall hear all objections G made before him and then make only one report to the Government containing his recommendations on the objections.\n\nWhen such a report is received by the Government, it must give a decision on all the objections at one stage and decide once for all what particular land out of the locality notified under s. 4(1) it wishes to acquire and then issue a declaration under s. 6. At the stage of s. 4, the land is not particularised but only the locality is mentioned; at the stage of s. 6 the land in the H locality is particularised and thereafter the notification under s. 4(1) having served its purpose exhausts itself. The sequence of events from a notification of the intention to acquire nnder s. 4 to the declaration under s. 6, leads to the conclusion that once a declaration under s. 6 particularil ing the area ia issued, the remaining non-particularised area in the nofl.\n\nMllSup.C.I./66-4\n\nication under s. 4(1) stands automatically released. The intention of Ibo\n\nlegislature was that one notification under s. 4( I) should be followed by survey under s. 4(2), objections under s. 5-A heard, and thereafter, ono\n\ndeclaration under •. 6 issued. U the Government requirm more land in that locality, there is nothing to prevent it from issuing another n0<i4cation under •- 4(1) making a further survey if necessary, hearing objections and then making another declaration under s_ 6, whereas Ibero Is likely to be prejudice to the owner of the land if there is great delay between tho notifications under s. 4( I) and s. 6.\n\nEven if it were poasible to issue two notifications under s. 6 in the special ci.rcumstanci:s arisiag out of the application of s. 17 ( 4), all that is possible is, to issue one notification relating to l\"nd to which s. 17(1) applies and another notifiaction relating to land to which s. 17 (I) cannot apply, and that is because of the special provisions contained in s. 17 (I) and s. 17 ( 4) \"\"d\n\nnot becauSe of the provisions of ss. 4, 5-A and 6. tion 48 (I) only confers a special power on Government of withdrawal from •C'!uisition without cancelling the notifications under ss. 4 and 6, provided, po&'iCllSion of the land covered by the notification under s. 6 was not taken.\n\nIt cannot be said that tho only way in which the notification under s. 4( I) can come to an end is by withdrdwal under s. 48( I) and that unless action is tak.m under that section the notiJication under s. 4 (I) would\n\nremain alive.\n\nSection 49(2) and (3) also provide for a special case.\n\nThe order of the Government under s. 49(2), ordering the •C'!uisition of the whole of the land, C\\'CD though under a. 6 only part of the land may have beai declared, may be taken to serve the purposo of the notification under s. 4(1) in such a special case; but it does not follow that successive notifications under •- 6 can be i!oued with rospeot to land in the locality specified in the notiftcation under t. 4( I). [566 D-567 B; 567 P.\n\nH; 569 B, C; 570 A-B, C; 571 F, 0)\n\n0VIL APPELLATF. ]URJSDicnON : Civil Appeal No. 1018 of 1963.\n\nAppeal from the judgment and order dated February 21, 1962, of the Madhya Pradesh High Court in Misc. Pe!ition No. 275 of\n\n1961.\n\nC. K.\n\nDaphtary, Attorney-General, M. Adhikari, Advocate General, Madhya Pradesh, H. L. Khaskalam and /. N. Shroff, for the appellants.\n\nS. V. Gupte, Solici10r-Ge11ernl and J. B. Dadachanji, for the respondents.\n\nS. N. Kacker and J. P. Goyal, for the intervener.\n\nSARKAR, J. delivered a separate opinion. The Judgment of WANC!IOO and MUDHOLKAR, JJ. was delivered by WANCHOO, J.\n\nSarkar, J.-My learned brother Wanchoo has set out the facts fully in his judgment and that relieves me of the necessity of stating them again.\n\nThe question that has arisen is whether a number of declarations under s. 6 of the Land Acquisition Act, 1894 can be issued su=ively in respect of different pieces of lands included within the locality specified in a notification issued under s. 4 of the Act. My learned brother has said that ss. 4, 5A and 6 of the Act have to be read together and so read, the conclusion is clear that the Act contem-\n\n.. '\n\n. •\n\n• H\n\nM. P. STATE V. v. P. SHAllMA (Sarkar, J.) 55~\n\nplates only a single declaration under s. 6 in respect of a notification under s. 4. I so entirely agree with his reasonings for this view that I find it unnecessary to add anything to them. But it was said that there are other considerations which indicate that our reading of these sections is unsound. In this judgment I propose to deal only with these considerations.\n\nIt was said that the Govermnent may have difficulty in making the plan of its project complete at a time, particularly where the project is large and, therefore, it is necessary that it should have power to make a number of declarations under s. 6. I am wholly unable to accept this argument. First, I do not think that a supposed difficulty would provide any justification for accepting an interpretation of a statute against the ordinary meaning of the language used in it. General considerations of the kind suggested cannot authorise a departure from the plain meaning of words. Secondly\" I cannot imagine a Government, which has vast resources, not being able to make a complete plan of its project at a time. Indeed, I think when a plan is made, it is a complete plan. I should suppose that before the Government starts acquisition proceedings by the issue of a notification under s. 4, it has made its plan for otherwise it cannot state in the notification, as it has to do, that the land is. likely to be needed. Even if it had not then completed its plan, it would have enough time before the making of a declaration under s. 6 to do so. I think, therefore, that the difficulty of the Government, even if there is one, does not lead to the conclusion that the Act contemplates the making of a number of declarations under s. 6. I would like to observe here to avoid confusion that we are not concerned now with extension of a completely planned project conceived later. The present contention is not based on any difficulty arising out of such a ease. It was said that if the Government has not finalised its plan when it makes a declaratio11 under s. 6, it would have to start fresh acquisition proceedingt! beginning with a notification under s. 4 to provide for the complete plan if it could not make any more declarations and in such a case, in conceivable circumstances, it may have to pay more for the land that it then sought to acquire. This argument concedes that even if the Government has no• been able to make its plan when making\n\na declaration under s. 6, the result is not that it cannot acquire any more land later when the plan is completed. The real point, therefore, of the present argument is that the Act should be so interpreted that the Government should not be put to extra cost when it has been u'nable to complete its plan at a time. This seems to me to be a strange argument. First, there is no reason why the Act s)J.ould provide for the Government's failure to complete the plan. Secondly, the argument is hypothetical for one does not know for sure whether a later acquisition will cost more or lessr Arguments on hypothetical considerations can have little weight' in interpreting statutes. But even otherwise, this view of the matte ..\n\ndoes not support the argument. After the issue of a notification under s. 4, an owner of land in the locality notified cannot have full beneficial enjoyment of his property; he cannot, for example, build on his land for if he does so and the land is acquired, he will get no compensation for the building put up and will lose the costs incurred for it. If it is a justification for saying that a number of declarations can be made under s. 6 because otherwise the Government may have to pay more, it seems to me that it is at least an equal justification for saying that such declarations cannot have been contemplated by the Act because that would mean an avoidable deprivation of the owners of their beneficial enjoyment of lands till such time as the Government is able to make its plan. As the Act is an expropriatory Act, that interpretation of it should be accepted which puts the least burden on the expropriated owner.\n\nThe Government could, of course, always make a complete plan at a time and I am unable to hold that the Act contemplated that it need not do so and go on making declarations from time to time as its plan goes on taking shape even though the result might be to\n\ni11crease the hardship of persons whose lands are taken away.\n\nReference was then made to subss. (1) and (4) of s. 17. These give the Government the power to take possession of waste and arable lands included in the notification under s. 4 on the expiry of fifteen days from the publication of the notice mentioned in s. 9 and before the making of the award, without holding the enquiry contemplated by s. 5. It was said that if a notification under s. 4 included both arable and waste lands as also lands of other descriptions, it will be necessary to issue two separate declarations under s. 6 in respect of the different kinds of lands. It was also said that the vesting in respect of the two kinds of lands in the Government would also be by stages. All this, it was contended, would support the view that more than one declaration under s. 6 was contemplated in such a case. I do not feel called upon to express any opinion whether in such a case a number of declarations under s. 6 is contemplated. It is enough to say that it is not contended that this is a case of that kind. Therefore, it cannot be said that the disputed declaration under s. 6 was in this case justified under s. 17. On the contrary, if the contention thats. 17 contemplates more declarations than one under s. 6 be correct, that would be because the statute specifically so provided for a particular case. It must follow that without a special provision, more than one declaration under s. 6 was not contemplated.\n\nThe next contention was that s. 48 which gives the Government power of withdrawal from acquisition before taking possession implies that a notification under s. 4 remains in force for all purpose till such withdrawal, and if it so remains in force, successive declarations under s. 6 must be permissible for otherwise it would be useless to keep the notification under s. 4 in force. The substance\n\n.. . .\n\nY\\.\n\n'1\n\nof this argument is that the only way to get rid of a notification under s. 4 is by a withdrawal of the acquisition proceedings under s. 48; if the proceedings are not withdrawn, the notification remains and then there may be successive declarations. This argument seems to me clearly ill founded. Now a notification under s. 4 will be exhausted if a declaration is made under it in respect of the entire area covered by it. Likewise, it seems to me that if the correct interpretation is that only one declaration can be made under s. 6, that also would exhaust the notification under s. 4; that notification would no longer remain in force to justify successive declarations under s. 6 in respect of different areas included in it. There is nothing in the'Act to support the view that it is only a withdrawal under s. 48 that puts a notification under s. 4 completely out of the way. The effect of s. 48 is to withdraw the acquisition proceedings, including the notification under s. 4 with which it started. We are concerned not with a withdrawal but with the force of a notification under s. 4 having become exhausted. That is a different case and has nothing to do with a withdrawal.\n\nLastly, we were referred to sub-ss. (2) and (3) of s. 49. These sub-sections state that where a claim for compensation is made on the ground of severance of the land acquired from the remaining land of the owner for which provision is made under s. 23, if the Government thinks that the claim is unreasonable it may, before the making of the award, order the acquisition of the whole land and in such a case no fresh declaration under s. 6 will be necessary. It is contended that these provisions support the view that successive declarations under s. 6 were contemplated. I do not think they do so. In any case, even if they did, then that would be because in a particular case the statute specially provided for successive declarations under s. 6. The present is not that special case.\n\nFurthermore, as I have said in connection with the argument based on s. 17, the fact that a special provision was necessary to enable successive declarations under s. 6 to be made would go to support the view that without a special provision there is no power given by the Act to issue successive declarations under s. 6.\n\nI would for these reasons dismiss the appeal with costs.\n\nWanchoo, J.-The only question raised in this appeal on a certificate granted by the Madhya Pradesh High Court is whether it is open to the appropriate government to issue successive notifications under s. 6 of the Land Acquisition Act, No. 1 of 1894, (hereinafter referred to as the Act) with respect to land comprised within one notification under s. 4(1) of the Act. The question arises in this way.\n\nOn May 16, 1949, a notification was issued under s. 4 (1} of the Act by which it was declared that lands in eleven villages including village Chhawani was likely to be needed for a public\n\n5 62 SUPl!.BNB COURT R'EPOl!.TS\n\n[1966] 3 S.C.R.\n\npurpose, i.e., the erection of an iron and steel plant. It appears that thereafter notifications were issued under s. 6 with respect to the villages notified in the notification under s. 4(1) and it is not in dispute that a number of such notifications under s. 6 were i•ued with respect to village Chhawani and some land in that village was acquired under those notifications, the last of such acquisitions being in the year 1956. Thereafter on August 12,\n\n1960, another notification under s. 6 of the Act was issued by the appropriate government proposing to acquire 486 17 acres of land in village Chhawani and the area which was proposed to be acquired was demarcated on a map kept in the office of the Collector of Durg for inspection. The notification also stated that the provisions of s. 5-A of theAct shall not apply thereto. Thereupon the respondents who are interested in some of the land notified filed a writ petition in the High Court challenging the validity of the notification under s. 6. The principal contention raised on their beluJf was that the notification under s. 6 of the Act was void as it had not been preceded by a fresh notification under s. 4(1) and the notification under s. 4(1) issued in 1949 had exhausted itself when notifications under s. 6 with respect to this village had been issued previously and could not support the issue of another notification under s. 6. In substance the contention of the respondents in their petition was that a notification under s. 4( I) could be followed only by one notification under s. 6 and that there could be no successive notifications under s. 6 with respect to lands comprised in one notification under s. 4(1).\n\nThe petition was opposed on behalf of the appellant, and it was contended that it was open to the appropriate government to issue as many notifications as it deemed fit under s. 6 of the Act with respect to lands comprised in one notification under s. 4( I) and that it was not correct that the notification under s. 4(1) was exhausted as soon as one notification under s. 6 was issued with respect to a part of the land comprised in the notification under s. 4(1), and that it was always open to the appropriate government to issue successive notifications under s. 6 so long as these notifications were with respect to land comprised within the notification under s. 4(1).\n\nThe High Court has accepted the contention of the respondents and has held that a notification under s. 4 (I) can only be followed by one notification under s. 6 and that it is not open to the appropriate government to issue successive notifications with respect to parts of the land comprised in one notification under s. 4 and that as soon as one notification is issued under s. 6, whether it be with respect to part of the land comprised in the notification under s. 4(1) or with respect to the whole of it, the notific_atiol! under s. 4(1) is exhausted and cannot support any further nohficauon under s. 6 of the Act with respect to parts of land comprised in the notifi-\n\nII •\n\n• H\n\nA cation under s. 6. In consequence the petition was allowed and the notification dated August 12, 1960 quashed. The appellant then applied to the High Court for a certificate which was granted; and that is how the matter has come up before us .\n\nThe question whether only one notification under s. 6 can be issued with respect to land comprised in the notification under s. 4(1) and thereafter the notification under s. 4(1) exhausts itself and cannot support any further notification under s. 6 with respect to such laud depends upon the construction of ss. 4, 5-A and 6 of the Act and on the connection between these provisions. Before however we deal with these provisions we may briefly refer to the scheme of the Act and the background in which these provisions have to be interpreted.\n\nThe Act provides for the exercise of the power of emineni domain and authorises the appropriate government to acquire lands thereunder for public purpose or for purposes of a company. The proceedings begin with a notification under s. 4 (1). After such a notification it is permissible under s. 4(2) for any officer of government, his servants and workmen to enter upon and survey the land in such locality, to dig or bore into the subsoil, to do all other acts necessary to ascertain whether the land is adapted for the purpose for which it was needed, to set out the boundaries of the land proposed to be taken and the intended line of the work proposed to be made thereon, to mark boundaries etc. by placing marks and fences and where otherwise the survey cannot be completed to cut down and clear away any part of any standing crop, fence or jungle. While the survey is being done under s. 4 (2), it is open to any person interested in the land notified under s. 4 (I) to object under s. 5-A before the Collector within thirty days after the issue of the notification to the acquisition of the land or of any land in the locality. The Collector is authorised to hear the objections and is required after hearing all such objections and after making such further enquiry as he thinks necessary to submit the case for the decision of the appropriate government together with the record of the proceedings held by him and a report containing his recommendations on the objections. Thereafter the appropriate government decides the objections and such decision is final.\n\nIf the appropriate government is satisfied after considering the report that any particular land is needed for a public purpose or for a company it has to make a declaration to that effect. After such a declaration has been made under s. 6 the appropriate government directs the Collector under s. 7 to take order for the acquisition of the land. Sections 8 to 15 provide for the proceedings before the Collector. Section 16 authorises the Collector to take possession after he has made the award under s. 11 anil thereupon the land vests absolutely in the government free from all encumbrances.\n\nSection 17 provides for special powers in cases of urgency. If a\n\nSUPRBMI! COURT RBPORTS\n\n\nperson is not satisfied with the award of the Collector, ss. 18 to 28 provide for proceedings on a reference to court. Sections 31 to 34 provide for payment of compensation. Sections 38 to 44 make special provisions for acquisition of land for companies.\n\nSection 48 gives power to government to withdraw from the acquisition of any land of which possession has not been taken. Section 49 provides for special powers with respect to acquisition of house, building or manufaclory and of land severed from other land.\n\nIt will be seen from this brief review of the provisions with respect to acquisition of land that ss. 4 and 6 are the basis of all the proceedings which follow and without the notifications required under ss. 4 and 6 no acquisition can take place. The importance of a notification under s. 4 is that on the issue of such notification the land in the locality to which the notification applies is in a sense freezed. This freezing talccs place in two ways. firstly the market value of the land to be acquired has to be determined on the date of the notification under s. 4(1) : [see s. 23(1) firstly].\n\nSecondly, any outlay or improvements on or disposal of the land acquired commenced, made or effected without the sanction of the Collector after the date of the publication of the notification under s. 4(1) cannot be taken into consideration at all in determining compensation : (see s. 24, seventhly).\n\nIt is in this background that we have to consider the question raised before us. Two things are plain when we come to consider the construction of ss. 4, SA and 6. The first is that the Act provides for acquisition of land of persons without their consent, though compensation is paid for such acquisition; the fact however remains that land is acquired without the consent of the owner thereof and that is a circumstance which must be borne in mind when we come to consider the question raised before us.\n\nIn such a case the provisions of the statute must be strictly construed as it deprives a person of his land without his consent. Secondly, in interpreting these provisions the court must keep in view on the one hand the public interest which compels such acquisition and on the other the interest of the person who is being deprived of his land without his consent. It is not in dispute that it is open to the appropriate government to issue as many notifications as it deems fit under s. 4(1) even with respect to the same locality followed by a proper notification under s. 6 so that the power of the appropriate government to acquire land in any locality is not exhausted by the issue of one notification under s. 4(1) with respect to that locality. On the other hand as the compensation has to be determined with reference to the date of the notification under s. 4(1) the person whose land is to be acquired may stand to lose if there is a great delay between the notification under s. 4(1) and the notification under s. 6 in case prices have risen in the meantime. This delay is likely to be greater if successive notifications under s. 6 can be\n\n• ...\n\n• ..\n\n•• .\n\nM. P. STATE v. v. p, SHARMA (Wane/zoo, J.) 565\n\nissued with respect to land comprised in the notification under s. 4 with greater consequential loss to the person whose land is being acquired if prices have risen in the meantime. It is however urged that prices may fall and in that case the person whose land is being acquired will stand to gain. But as it is open to the appropriate government to issue another notification under s. 4 with respect to the same locality after one such notification is exhausted by the issue of a notification under s. 6, it may proceed to do so where it feels that prices have fallen and more land in that locality is needed and thus take advantage of the fall in prices in the matter of acquisition. So it is clear that there is likely to be prejudice to the owner of the land if the interpretation urged on behalf of the appellant is accepted while there will be no prtjudice to the government if it is rejected for it can always issue a fresh notification under s. 4(1) after the previous one is exhausted in case prices have fallen. It is in this background that we have to consider the question raised before us.\n\nAs we have said already, the process of acquisition always begins with a notification under s. 4(1). That provision authorises the appropriate government to notify that land in any locality is needed or is likely to be needed for any public purpose. It will be noticed that in this notification the land needed is not particularised but only the locality where the land is situate is mentioned. As was observed by this Court in Babu Barkya Thakur v. The State of Bombay,(1) a notification under s. 4 of the Act envisages a preliminary investigation and it is only under s. 6 that the government makes a firm declaration. The purpose of the notification under s. 4(1) clearly is to enable the government to take action under s. 4(2) in the matter of survey of land to decide what particular land in the locality specified in the notification under s. 4(1) it will decide to acquire. Another purpose of the notification under s. 4(1) is to give opportunity to persons owning land in that locality to make objections under s. 5-A. These objections are considered by the Collector and after considering all objections he makes a report containing his recommendation on the objections to the appropriate government whose decision on the objections is final. Section 5-A obviously contemplates consideration of all objections made to the notification under s. 4(1) and one report thereafter by the Collector to the government with respect to those objections. The government then finally decides those objections and thereafter proceeds to make a declaration under s. 6. There is nothing in s. 5-A to suggest that the Collector can make a number of reports dealing with the objections piecemeal. On the other hand s. 5-A specifically provides that the Collector shall hear all objections made before him and then make a report i.e. only a single report to the government containing his recommendation on the objections.\n\n(1 [1961] I S.C.R. 128).\n\nIt 5eems to us clear that when such a report is received from the Collector by the government it must give a decision on all the objections at one stage and decide once for all what particular land out of the locality notified under s. 4(1) it wishes to acquire.\n\nIt has to be satisfied under s. 6 after considering the report made under s. 5-A that a particular land is needed for a public purpose or for a company and it then makes a declaration to that elTcct under s. 6.\n\nReading ss. 4, 5-A and 6 together it seems to us clear that the notification under s. 4(1) specifies merely the locality in which the land is to be acquired and then under s. 4(2) survey is made and it is considered whether the land or part of it is adapted to the purpose for which it is required and maps are prepared of the land proposed to be taken. Then after objections under s. 5-A have been disposed of the government has to decide what particular land out of the locality specified in the notification under s. 4( I) it will acquire. It then makes a declaration under s. 6 specifying the particular land that is needed.\n\nSections 4, 5-A and 6 in our opinion are integrally connected.\n\nSection 4 specifies the locality in which the land is acquired and provides for survey to decide what particular land out of the locality would be needed.\n\nSection 5-A provides for hearing of objections to the acquisition and after these objections are decided the government has to make up its mind and declare what particular land out of the locality it will acquire. When it has so made up its mind it makes a declaration as to the particular land out of the locality notified ins. 4(1) which it will acquire. It is clear from this intimate connection between ss. 4, 5-A and 6 that as soon as the government has made up its mind what particular land out of the locality it requires, it has to issue a declaration under s. 6 to that elTect. The purpose of the notification under s. 4(1) is at this stage over and it may be said that it is exhausted after the notification under s. 6. If the government requires more land in that locality besides that notified under s. 6, there is nothing to prevent it from issuing another notification under s. 4( I) making a further survey if necessary, hearing objections and then making another declaration under s. 6. The notification under s. 4(1) thus infonns the public that land is required or would be required in a parti\n\ncular locality and thereafter the members of the public owning land in that locality have to make objections under s. 5-A; the government then makes up its mind as to what particular land in that locality is required and makes a declaration under s. 6. It seems to us clear that once a declaration under s. 6 is made, the notification under s. 4(1) must be exhausted, for it has served its purpose. There is nothing in ss. 4, 5-A and 6 to suggest that s. 4 (I) is a kind of reservoir from which the go\".ernmen~ may from llm.c to time draw out land and make declarations with respect to It successively. If that was the intention behind sections 4, 5-A and\n\nB •\n\n' H\n\n6 we would have found some indication of it in the language used therein. But as we read these three sections together we can only find that the scheme is that s. 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the government what particular land out of that locality it needs.\n\nThis is followed by a declaration under s. 6 specifying the particular land needed and that in our opinion completes the process and the notification under s. 4(1) cannot be further used thereafter. At the stage of s. 4 the land is not particularised but only the locality is mentioned; at the stage of s. 6 the land in the locality is particularised and thereafter it seems to us that the notification under s. 4(!) having served its purpose exhausts itself. The sequence of events from a notification of the intention to acquire (s. 4(1)) to the declaration under s. 6 unmistakably leads one to the reasonable conclusion that when once a declaration under s. 6 particularising the area out of the area in the locality specified in the notification under s. 4(1) is issued, the remaining non-particularised area stands automatically released.\n\nIn effect the 5Cheme of these three sections is that there should be first a notification under s. 4(1) followed by one notification under s. 6 after the government has made up its mind which land out of, the locality it requires.\n\nIt is urged however that where the land is required for a small project and the area is not large the government may be able to make up its mind once for all what land it needs, but where as in the present case land is required for a large project requiring a large area of land government may not be able to make up its mind all at once. Even if it be so there is nothing to prevent the government from issuing another notification under s. 4 followed by a notification under s. 6. As we have said before, the government's power to acquire land in a particular locality is not exhausted by issuing one notification under s. 4(!) followed by a notification under s. 6. The interpretation which has commended itself to us therefore does not deprive the government of the power to acquire more land from the same locality if later on it thinks that more land than what has been declared under s. 6 is needed. It can proceed to do so by a fresh notification under s. 4(1) and a fresh declaration under s. 6. Such a procedure would in our opinion be fair to all concerned; it will be fair to government where the prices have fallen and it will be fair to those whose land is being acquired where the prices have risen. Therefore as we read these three sections we are of opinion that they are integrally and intimately connected and the intention of legislature was that one notification under s. 4(1) should be followed by survey under s. 4\n\n(2) and objections under s. 5-A and thereafter one declaration\n\nSUPRBMB COURT REPORTS\n\n\nunder s. 6.\n\nThere is nothing in ss. 4, 5-A and 6 which supports the construction urged on behalf of the appellant and in any case it seems to us that the construction which commends itself to us and which has been accepted by the High Court is a fair construction keeping in view the background to which we have referred.\n\nEven if two constructions were possible, which we think is not so, we would be inclined to the construction which has .commended itself to us because that construction does not restrict the power of the government to acquire land at any time it deems fit to do and at the same time works fairly towards persons whose land is to be acquired compulsorily.\n\nIt now remains to consider certain other provisions of the Act to which reference has been made on behalf of the appellant to show that successive notifications under s. 6 are contemplated with respect to land in a locality specified in the notification under s. 4(1). The first provision is contained in s. 17(4). Section 17(1) gives power to government in cases of urgency to direct that the Collector should take possession of the land before the award is made and such possession can be taken on expiration of fifteen days from the publication of the notice under s. 9(1).\n\nFurther such possession can only be taken of waste or arable land and on such possession being taken such land vests absolutely in the government free from all encumbrances. To carry out the purposes of s. 17(1), s. 17(4) provides that the appropriate government may direct that the provisions of s. 5-A shall not apply in cases ofurgency and if it so directs, a declaration under s. 6 may be made in respect of the land at any time after the publication of the notification under s. 4(1). It is urged that this shows that where the land notified under s. 4(1) includes land of the kind mentioned ins. 17 (I) and also land which is not of that kind it would be open to government to make a declaration under s. 6 with respect to the land mentioned in s. 17( I) immediately after the notification under s. 4(1) while notification with respect to the land which is not of the kind mentioned in s. l 7( I) can follow later after the enquiry under s. 5-A is over and objections have been disposed of. So it is urged that more than one declaration is contemplated under s. 6 after one notification under s. 4(1).\n\nThere arc two answers to this argument.\n\nIn the first place where the land 10 be acquired is of the kind mentioned in s. 17( l) and also of the kind not included in s. 17( I) there is nothing to prevent the government from issuing two notifications under s. 4(1) one relating to land which comes within s. 17(1) and the other relating to land which cannot come within s. 17(1). Thereafter the government may issue a notification under s. 6 followng the notification under s. 4(1) with respect to the land to which s. 17(1) applies while another notification under s. 6 with respect to land to which s. 17(1) does not apply can follow after the enquiry under s. 5-A.\n\nSo section 17(4) does not necessarily mean that\n\nA . ' ~\n\nc -\n\nthere can be two notifications under s. 6 where the provisions of that section are to be utilised, for, the government can from the beginning issue two notifications under s. 4 and follow them up by two declarations under s. 6. But even assuming that it is possible to make two declarations under s. 6 (though in view of what we have said above this is not necessary and we express no final opinion about it) where the land to be acquired is both of the kind mentioned ins. 17(1) and also of the kind not comprised therein, all that the government can do in those circumstances after one notification under s. 4 (l) comprising both lands is to issue one notification under s. 6 comprising lands coming within s. 17(1) and another notification under s. 6 with respect to land not coming within s. 17(1) sometime later after the enquiry under s. 5-A is finished. This however follows from the special provisions contained ins. 17(1) and (4) and in a sense negatives the contention of the appellant based only on ss. 4, 5-A and 6. It may be added that that is not the position in the present case. Therefore even if it were possible to issue two notifications under G. 6 in the special circumstances arising out of the application of s. 17( 4), all that is possible is to issue one notification relating to land to which s. 17( 1) applies and another notification relating to land to which s. 17(1) cannot apply. Further if both these kinds of land are included in the notification under s. 4(1), the issue of two notifications under s. 6 follows from the special provisions contained ins. 17(1) ands. 17(4) and not from the porvisions of ss. 4, 5-A and 6. The present is not a case of this kind, for the notification under s. 4(1) in this case issued in May 1949 did not contain any direction relevant to s. 17(4). It is true that the declaration under s. 6 dated August 12, 1960 contains a direction under s. 17(4), but the effect of that merely is to allow the government to take possession of the land within 15 days after the issue of notice under s. 9(1).\n\nThis is on the assumption that a direction under s. 17(4) can be issued along with the notification under s. 6 as to which we express no opinion. We are therefore of opinion that the provisions in s. 17( 4) do not lead to the conclusion that section 6 contemplates successive notifications following one notification under s. 4(1 ).\n\nAs we interpret ss. 4, 5-A and 6 that is not the intention in a normal case. Even in a case of urgency there can at the most be only two notifications under s. 6 following one notification under s. 4(1), one relating to land which is covered bys. 17(1) and the other relating to land which is not covered by s. 17(1), provided both kinds of land are notified by one notification under s. 4(1). As we have said even that is not necessary for we are of opinion that in such a case the government can issue two notifications under s. 4(1), one relating to land to which s. 17(1) applies and the other relating to land to which s. 17(1) does not apply and thereafter there will be two notifications under s; 6 each following its own predecessor under s. 4(1).\n\n570 SUPREME couar REPOll.TS\n\n[1966) 3 S.C.R.\n\nThen reliance is placed on s. 48 which pro\\ides for withdrawal from acquisition. The argument is that s. 48 is the only provision in the Act which deals with withdrawal from acquisition and that is the only way in which government can withdraw from the acquisition and unless action is taken under s. 48(1) the notification under s. 4{1) would remain (presumably for ever). It is urged that the only way in which the notification under s. 4(1) can come to an end is by withdrawal under s. 48(1). We are not impressed by this argument. In the first place, under s. 21 of the General Oauses Act, (No. JO of 1897), the power to issue a notification includes the power to rescind it. Therefore it is always open to government to rescind a notification under s. 4 or under s. 6, and withdrawal under s. 48(1) is not the only way in which a notification under s. 4 ors. 6 can he brought to an end. Section 48(1) confers a special power on government of withdrawal from acquisition without cancelling the notifications under ss. 4 and 6, provided it has not taken possession of the land covered by the notification under s. 6. In such circumstances the government has to give compensation under s. 48(2).\n\nThis compensation is for the damage suffered by the owner in consequence of the notice under s. 9 or of any proceedings thereafter and includes costs reasonably incurred by him in the prosecution of the proceedings under the Act relating to the said land.\n\nThe notice mentioned in sub-s. (2) obviously refers to the notice under s. 9(1) to persons interested.\n\nIt seems that s. 48 refers to the stage after the Collector has been asked to take order for acquisition under s. 7 and has issued notice under s. 9(1). It does not refer to the stage prior to the issue of the declaration under s. 6. Section 5 says that the officer taking action under s. 4(2) shall pay or tender payment for all necessary damage done by his acting under s. 4(2). Therefore the damage, if any, caused after the notification under s. 4(1) is provided in section 5. Section 48(2) provides for compensation after notice has been issued under s. 9( I) and the Collector has taken proceedings for acquisition of the land by virtue of the direction under s. 7. Section 48(1) thus gives power to government to withdraw from the acquisition without cancelling the notifications under ss. 4 and 6 after notice under s. 9(1) has been issued and before possession is taken. This power can be exercised even after the Collector has made the award under s. 11 but before he takes possession under s. 15. Section 48(2) provides for compensation in such a case.\n\nThe argument thats. 48(1) is the only method in which the government can withdraw from the acquisition has therefore no force because the government can always cancel the notifications under ss. 4 and 6 by virtue of its power under s. 21 of the General Qauscs Act and this power can be exercised before the government directs the Collector to take action under s. 7. Section 48(1) is a special provision for those cases where proceedings for acquisition have gone beyond the stage of the issue of notice under s. 9(1) and\n\n' • -<\n\n,. -,1 ,,\n\nit provides for payment of compensation under s. 48(2) read with s. 48(3). We cannot therefore accept the argument that without an order under s. 48(1) the notification under s. 4 must remain outstanding. It can be cancelled at any time by government under s. 21 of the General Clauses Act and what s. 48(1) shows is that once government has taken possession it cannot withdraw frorn the acquisition. Before that it may cancel the notifications under ss. 4 and 6 or it may withdraw from the acquisition under s. 48(1).\n\nIf no notice has been issued under s. 9(1) all that the government has to do is to pay for the damage caused as provided in s. 5; if on the other hand a notice has been issued under s. 9(1 ), damage has also to be paid in accordance with the provisions of s. 48(2) and (3). Section 48(1) therefore is of no assistance to the appellant for showing that successive declarations under s. 6 can be made with respect to land in the locality specified in the notification under s. 4(1).\n\nThen reference is made to s. 49(2) and (3). These sub-sections lay down a special provision applicable in certain circumstances.\n\nAmong the factors to be taken into consideration in fixing the compensation is the damage if any sustained by the person interested at the time of the Collector's taking possession of the land by reason of severing such land from his other land. Section 49(2) provides. that if a person is claiming an unreasonable and excessive compensation for this kind of damage, the government can order the acquisition of the whole of the land even though under s. 6 only part of the land may have been declared. Sub-section (3) provides that in such a case no action under s. 6 to s. 10 would be necessary and that all that the Collector is to do is to give an award under s. 11. The argument is that s. 49(3) does not mention s. 4 and therefore it follows that successive notifications under s. 6 can be issued with respect to land in the locality specified in the notifica-· tion under s. 4(1). We have not been able to understand how this follows from the fact thats. 4(1) is not mentioned ins. 49(3).\n\nAs we have said already s. 49(2) and (3) provide for a very special case and the order of government under s. 49(2) may in a sense be taken to serve the purpose of s. 4(1) in such a special case. Thereafter all that s. 49(3) provides is that the Collector may proceed straight off to determine compensation under s. 11, the reason for this being that all the other steps necessary for determining compensation under s. 11 have already been taken in the presence of the parties.\n\nLastly it is urged that vesting is also contemplated in two stages and that shows that successive notifications can be issued under s. 6 following one notification unde& s. 4(1). Section 16 provides for taking possession and vesting after the award bas been made. Section 17 provides for taking possession and conaequent vesting before the award is made in case of urgency. We\n\nfail to see how these provisions as to vesting can make any difference to the interpretation of ss. 4, 5-A and 6.\n\nSection 16 deals with a normal case where possession is taken after the award is made while s. 17(1) deals with a special case where possession is taken fifteen days after the notice under s. 9(1). Vesting always follows taking of possession and there can be vesting either under s. 16 or under s. 17(1) depending upon whether the case is a normal one or an urgent one. What we have said with respect to s. 17(1) .and s. 17( 4) would apply in this matter of vesting also and if the matter is of urgency the government can always issue two notifi- -cations under s. 4, one relating to land urgently required and covered bys; 17(1) and the other relating to land not covered bys. 17(1).\n\nThe argument based on these provisions in s. 16 and s. 17 can have no effect on the interpretation of ss. 4, 5-A and 6 for reasons which we have given when dealing with ss. 17(1) and 17(4). We are therefore of opinion that the High Court was right in holding that there can be no successive notifications under s. 6 with respect to land in a locality specified in one notification under s. 4(1).\n\nAs it is not in dispute in this case that there have been a number , of notifications under s. 6 with respect to this village based on the notification under s. 4(1) dated May 16, 1949, the High Court was right in quashing the notification under s. 6 issued on August 12, 1960 based on the same notification under s. 4(1).\n\nThe petition had also raised a ground that the notification under s. 6 was vague. However, in view of our decision on the main point raised in the case we express no opinion on this aspect -0f the matter.\n\nThe appeal therefore fails and is hereby dismissed with costs\n\nAppeal dismissed.", "total_entities": 430, "entities": [{"text": "STATE OF MADHYA PRADESH AND ORS", "label": "PETITIONER", "start_char": 5, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH AND ORS", "offset_not_found": false}}, {"text": "VISHNU PRASAD SHARMA AND ORS", "label": "RESPONDENT", "start_char": 39, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "VISHNU PRASAD SHARMA AND ORS", "offset_not_found": false}}, {"text": "F'ebruary 9, 1966", "label": "DATE", "start_char": 70, "end_char": 87, "source": "ner", "metadata": {"in_sentence": "F'ebruary 9, 1966\n\n(A. K. SARKAR, K. N. WANCHOO AND J. R. MUDHOLKAR JJ.J\n\nLand Acquisition Act (1 of 189'4), ss."}}, {"text": "A. K. 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{"document_id": "1966_3_573_581_EN", "year": 1966, "text": "KISHANCHAND LUNIDASINGH BAJAJ\n\nCOMMISSIONER OF INCOME-TAX, MYSORE\n\nFebruary 10, 1966.\n\n(P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO, J.C. SHAH,\n\nS. M. SIKRI AND V. RAMASWAMI, JJ.J\n\nIndian Income-tax Act, 1922 (11 of 1922), s. 16(2)-Rea/ owner mid registered owner of shares different-Tax liability on dividend on wh•m.\n\nB and his sons constituted a Hindu undivided family which owned certain shares in public limited companies.\n\nThe family started busineu in money lending in the name of a tirm and in the books of account of the firm the shares which stood registered in the name of B with the companies were credited as the capital of the business. Two sons separated from the family, each receiving •urns in lieu of his share, and theJ formed a partne:sbip with the rest of themembers of the family for carrying business in the name of the same firm.\n\nUnder the partnership the two separated sons were entitled to their shares and the remaining shares were to belong to B as Karta of the farnilJ.\n\nDividends received in respect of the shares were credited to the profit and loss ac::ount of the firm.\n\nIn assessment proceedings, it was claim,..d that the shares which stood registered in the name of B belonged not to the Hindu undivided family but to the firm.\n\nThe claim was rejected. In appeal to this Court it was contended that where one taxable entity is the registered holder of shares in a company and the real owner of the shares is another taxable entity, the registered shareholder alone is liable to be ascessed to tax in respect of the dividend from these sharee,\n\nand therefore B aione was liable to be taxed in respect of the divideond income from the shares, and not the Hindu undivided family.\n\nHELD : The contention must fail.\n\nTax being charged by s. 3 of the Income-tax Act upon dividend in come and not being excludd under s. 4(3), such income would be chargeable to income-tax under the Act in the hands of the person to whom it accru .. or by whom it is received.\n\nA company for its purpoaea does not recognize any trust or equitable ownership in shares; it merely recognizes the registered shareholder as the owner and pays the dividend to that shareholder.\n\nBut the shares may, because of a trust or other fiduciary relationship, belong to a person other than the registered shareholder and the dividend distributed by the company would for the pnrpose of tax be deemed to accrue or arise to the real owner of the shares. [576\n\nA-CJ G Sub-section (2) of s. 16 does not operate .. an exemption from t.ba pale of either s. 3 or s. 4( I) of the Act nor does it provid<i that liabi lity to tax arises only when the person by whom dividend is received from the company is the real owner of the •hares. Sub-section (5) of s. 18 also does not lead to that result. Insofar as it deals with dividend which is \"grossed up\", sub-s. (5) of s. 18 forms a corollary to s. 16(2).\n\nTherefore when tax is paid on behalf of a shareholder and dednctioo Is made from dividend, credit is giYen to the shareholder for the tax paid H in his final assessment. But the scheme of \"grossing up\" is not aua-- ceptible of the interpretation that the income from dividend is to be regarded as the income only of the registered shareholder and not of tho real owner of the share. [578 G-579 BJ Ml 1 Sup. CI/66-'\n\nIncome-tax Officer, North Satara \\'. Arl\"ind N. Ma/at/a/ & Ors .. 45 A l.T.R. 271 and Commirsioner of Income-tax, Bo:nbay City fl v. Shakunta/a and Ors., 43 l.T.R. 352, referred to.\n\nHowrah TradinR Company I .. td,. v. Commissr'oner of lnco1ne-tax, Cmrral, Calcutra, 36 J.T.R. 215, explained.\n\nC1v1L APPEi.i.ATE Jt•RISIDC'TION : CiYil Appeal No. 234 of 1965. n\n\nAppeal by special leave from the judgment and order dated July 19, 1963 of the Mysore High Court in I. T. R. c. No. 6 of\n\n1963.\n\nK. Srinil'asan and R. Gopalakrislman, for the appellant.\n\nC. K. Daphtary, Aflorney-General, R. Gmrapat/Jy Iyer, R. !/.\n\nDhebar and R. N. Sachthey, for the respondenl.\n\nThe Judgment of the Court was delivered by\n\nShah, J.\n\nKishanchand Bajaj and his seven sons formed a Hindu undivided family which owned shares exceeding Rs. 91,000 in value, in public limited companies. The family commenced business in money-lending and as commission agents on May 16, 1956 in the name of Messrs. Mangoomal Kishanchand and in the books of account of the firm the shares which stood registered in the name of Kishanchand with the companies were credited as capital of the business. On August 22, 1956 Shyam Sundar and Girdharlal, two of the sons of Kishanchand separated from the family, each receiving rupees two lakhs in lieu of his share.\n\nOn August 23, 1956 a partnership was formed between Kishanchand representing the Hindu undivided family of himself and his five sons and Shyam Sundar and Girdharlal, for carrying on the business of Messrs. Mangoomal Kishanchand. Under the deed of partnership, Shyam Sundar and Girdharlal were each entitled to a seventh share and the remaining five-evenths share was to belong to Kishanchand as karta of the Hindu undivided family.\n\nDividends received in respect of the shares were credited to the profit & loss account of the firm.\n\nIn procecdir.gs for assessment of the firm for the year 1959-60 it was claimed that ibe shares which stood registered in the name of Kishanchand belonged not to the Hindu undivided family but to the firm of Messrs. Mangoomal Kishanchand. The Income-tax Officer rejected that contention.\n\nHe held that the Hindu undivided family was \"the real and legal owner of the shares\", and that the shares \\\\ere at no time the property of the firm.\n\nThe order of the Income-tax Officer was confirmed in appeal l:>y the Appellate Assistant Commissioner. Jn second appeal to the Income-tax Appellate Tribunal, it was contended on behalf of the Hindu undivided family that the dividend from the shares\n\n'I,\n\n• _,\n\ncould be assessed only in the hands of the person who held ownr\n\nship \"legal as well as equitable\" in the shares, and as the fa~Ily had ceased to be the \"equitable owner\" of the shares, the Hmdu undivided family could not be assessed under the Income-tax Act, 1922 on the dividend. The Tribunal rejected the contention. The Tribunal then referred under s. 66 (I) of the Indian Jncorne-tax Act, 1922, the following question to the High Court of Mysore for opinion :\n\n\"Whether on the facts and circumstances of the case, the dividend income from shares standing in the name of Kishanchand Lunidasingh Bajaj and acquired with the funds of the Hindu undivided family of which the said C person was the karta was assessable in the hands of the\n\nassessee family ?\"\n\nThe High Court answered the question in the affirmative, and with special leave the Hindu undivided family has appealed to this Court.\n\nJn this appeal it was urged that where one taxable entity is the registered holder of shares in a company and the real owner of the shares is another taxable entity, the registered shareholder alone is liable to be assessed to tax in respect of the dividend from those shares, and therefore Kishanchand alone was liable to be taxed in respect of the dividend income from the phirres, and not the Hindu undivided family. Reliance in suprort of this contention was placed upon s. 16 (2) of the Indian Income-tax Act, 1922, and certain observations made by this Court in the judgment in Howrah Trading Company Ltd. v. Commissioner of Income-tax, Central, Calcutta.(')\n\nIn our judgment the contention is wholly without substance.\n\nUnder s. 3, total income of the previous year of every individual, Hindu undivided family, company and local authority, and of every firm and other association of persons or the partners of ths firm or the members of the association individually is charged to tax. By s. 4 the total income of any previous year of any person includes, subject to the provisions of the Act, all income, profits and gains from whatever source derived, which are received or deemed to be received in the taxable territories in such year hy or on behalf of such person, or if such person is resident in the taxable territories during such year the income which accrue or arise or is deemed to accrue or arise to him in the taxable territories during such year, or accrue or arise without the taxable territory during such year, or having accrued or arisen to him without the taxable territories .or brought in the taxable territories during such year, or if such person is not residinl': to the taxahle\n\nSUPREME COUIT REPORTS\n\n(1966) 3 S.C.R.\n\nterritories during such year, accrue or arise or are deemed to accrue or arise to him. By sub-s. (3) of s. 4 any income, prof.its or gains falling within the clauses (i) to (xxii) are not liable to be included in the total income of the person receiving them. Tax being charged bys. 3 upon dividend income and not being excluded under s. 4 (3), such income would be chargeable to income-tax under the Act in the hands of the person to whom it accrues or by whom it is received.\n\nA company for its purposes does not recognize any trust or equitable ownership in shares : it merely recognises the registered shareholder as the owner and pays the dividend to that shareholder.\n\nBut the shares may, because of a trust or other fiduciary relationship, belong to a person other than the registered shareholder, and the dividend distributed by the company would for the purpose of tax be deemed to accrue or arise to the real owner of the shares.\n\nSection 16 of the Indian Income-tax Act deals with the exemptions and exclusions in determining the total income. The expression \"total income\" is defined in s. 2 (15): it means \"total amount of income, profits and gains referred to in sub-section (I) of section 4, computed in the manner laid down in this Act''. Section 16, D insofar as it is relevant, provides :\n\n\"(I) In computing the total income of an asscsse~\n\n(a) any sums exempted under the first proviso to sub-section (I) of section 7, the second and third provisos to section 8, sub-sections (2), (3), ( 4) and ( 5) of section 14, section 15, section I SB and section I 5C shall be included, and any sum exempted under section I 5A shall also be included except for the purpose of determining the rates at which income-tax (but not super-tax) is payable by the assessee to whom the exemption is given;\n\n(b) when the assessee is a partner of a firm, then, whether the firm has made a profit or loss, his share (whether a net profit or a net loss) shall be taken to be any salary, interest, commission or other remuneration payable to him by the firm in respect of the previous year increased or decreased respecti\\'ely by his share in the\n\nbalance of the profit or loss of the firm after the deduction of any interest, salary, commission or other remuneration payable to any partner in respect of the previoce year :\n\nProvided\n\n\"(c) all income arising to any person by Yirtue of a settlement or disposition whether\n\n• •\n\nA revocable or not, and whether effected before or after the commencement of the Indian Income- _, tax (Amendment) Act, 1939 (VII of 1939), from \\ assets remaining the property of the settlor or disponer, shall be deemed to be income of the settlor or disponer, and all income arising to any B person by virtue of a revocable transfer of assets shall be deemed to be income of the transferor;\n\nProvided\n\n(2) For the purposes of inclusion in the total income\n\nof an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or distri~ buted to him, and shall be increased to such amount as would, if income-tax (but not super-tax) at the rate applicable to the total income of the company without taking into account any rebate allowed or additional income-tax charged for the financial year in which the ' D dividend is paid, credited or distributed or deemed to have been paid, credited or distributed, were deducted therefrom, be equal to the amount of the dividend :\n\nProvided\n\n(3) In computing the total income of any individual\n\nB for the purpose of assessment, there shall be included-\n\n(a) so much of the income of a wife or minor child of such individual as arises directly or indirectly-\n\n(i) from the membership of the wife in a j firm of which her husband is a part-\n\nF ner;\n\n(ii) from the admission of the minor to the benefits of partnership in a firm of which such individual is a partner;\n\n(iii) from assets transferred directly or indirectly to the wife by the husband\n\nG otherwise than for adequate consideration or in connection with an agree-\n\n_, ment to live apart; or '\n\n(iv) from assets transferred directly or in- < directly to the minor child, not being\n\n> a married daughter, by such individual otherwise than for adequate conside- H ration; and \"(b) so much of the income of any person or association of persons as arises from assets\n\ntransfered otherwise than for adequate consideration to the person or association by such individual for the benefit of his wife or a minor child or both.\"\n\nUnder the Income-lax Act, 1922, certain items of income are exempt from liability to tax and do not enter into the computation of total income: there are other items of income, which though exempt from lax are liable lo be included in the total income of the assesscc for determining the rate applicable. Sub-sections (1) & (3) of s. 16 provide that certain income which does not accrue or arise to the asscssee or which is not received as income by him is deemed to be part of his total income. These sub-sections deal with inclusion of the specified classes of income in the computation of total income. The only difference between the two clauses is that sub-s. (1) applies to all assessces, whereas sub-; (3) applies to individuals only.\n\nBut sub-s. (2) does not direct the inclusion of any item of income in the computation of the total income of an assessee to whom it does not accrue or arise: it is only a processing clause applicable in respect of dividend income.\n\nIn terms it provides that for the purpose of inclusion of dividend in the total income of an assessec, dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed, or deemed to be paid, credited or distributed, and further that the dividend shall be increased, or as it is sometimes called \"grossed up\" by adding thereto the income-tax deemed to have been paid by the company on behalf of the shareholder. The sub-section in the first instance designates the year in which the dividend income is to be included in the total income. Therefore dividend will be included in the income of the assessee in the year in which it is paid, credited or distributed, or be deemed lo be paid, credited or distributed. Since the same income cannot be taxed twice over, dividend income will be taxed in the hands of the real owner of the shares and in the year designated by s. 16(2). But by virtue of the second part of s. 16(2), dividend may be grossed up only if the registered shareholder is the real owner of the shares. If the registered holder is not the real owner of the shares i.e. he is a trustee or benamidar for the real owner, dividend income cannot be grossed up when including it in the total income of the real owner. But sub-s. (2) of s. 16 does not operate as an exemption from the pale of either s. 3 or s. 4(1) of the Act: nor does it provide that liability to tax arises only when the person by whom dividend is received from the company is the real owner of the shares. Sub-section (5) of s. 18 also docs not lead to that result. The clause provides that deduction made by a company and paid to the account of the Central Government in accordance with the provisions of s. 18 and any sum by which a dividend has been increased under sub-s. (2) of s. 16 shall\n\n; •\n\nbe treated as payment of income-tax or super-tax on behalf of the person from whose income the deduction was made, and credit shall be given to him therefor. Insofar as it deals with dividend which is \"grossed up\", sub-s. (5) of s. 18 forms a corollary to s. 16(2).\n\nTherefore when tax is paid on behalf of a shareholder and deduction is made from dividend, credit is given to him for the tax paid in his final assessment. But the scheme of \"grossing up\" is not susceptible of the interpretation that the income from dividend is to be regarded as the income only of the registered shareholder and not of the real owner of the shares.\n\nThe authorities of this Court which have interpreted s. 16 (2) may be reviewed. In Howrah Trading Company's case (1) it was held that a person who had purchased shares in a company under a blank transfer and in whose name the shares had not been registered in the books of the company is not a \"shareholder\" in respect of such shares within the meaning of s. 18(5) of the Income-tax Act, notwithstanding his equitable right to receive dividend on such shares. Such a person was therefore held not entitled to have the dividend income grossed up under s. 16(2) of the Act by the addition of the income-tax paid by the company in respect of those shares, and to claim credit for the tax deducted at source under s. 18(5) of the Act. In that case the only dispute which arose was with regard to \"grossing up\". The dividend income was included in the total income of the person who was the real owner of the shares, though the shares were not registered in his name. In Income-tax Officer, North Satara v. ArPind N. Mafatlal & Others (2) it was held, following the judgment in Howrah Trading Companys' case t'), that the registered shareholder alone is entitled to the benefit of the credit for tax paid by the company under s. 18(5) and the corresponding \"grossing up\" under s. 16(2). In that case shares belonging to a firm registered under the Income-tax Act were held in the names of three partners of the firm.\n\nThe Income-tax Officer sought to treat the dividend from the shares as income of the firm and to \"gross up\" the dividend by adding the income-tax paid.\n\nThis Court held that the only persons who were entitled to be treated as shareholders to whom the provisions of ss. 16(2) and 18(5) were attracted were the three partners. The judgment of this Court in Commissioner of Income-tax, Bombay City II v Shakuntala and Others (3) does not support any different rule. That was a case in which a Hindu undivided family held certain shares in a company in the names of different members of the family.\n\nThe Income-tax Officer applied the provisions of s. 23A of the Indian Income-tax Act, 1922, before it was amended in 1955, and ordered that the undistributed portion of the distributable income of the\n\n(1) [1959] Supp. 2 S.C.R. 448.\n\n(2) [1962] Supp. 3 S.C.R. 455: 45 1.T.R. 271.\n\n(3) [1962] 2 S.C.R. 871 : 43 I.T.R. 352.\n\n580 SUPRl!MI! COURT REPORTS\n\n\ncompany shall be deemed to be distributed. In proceedings for assessment the amount of deemed income appropriate to the shares of the family was ordered by the Income-tax Officer to be included in the income of the family. It was held that the expression \"shareholder\", in s. 23A of the Indian Income-tax Act meant the shareholder registered in the books of the company. Therefore the amount appropriate to the shares had to be included in the income of the members of the family in whose names the shares stood in the register of the company, and as the Hindu undivided family was not a registered shareholder of the company, the amount deemed to he distributed could not be assessed as the income of the family under s. 23A. The Court in Shakuntala's case(') was dealing with notional income. The amounts which were no distributed by the company, but which by virtue of an order under s. 23A of the Act were deemed to be distributed were sought to be assessed and the Court held in the light of the express provisions of s. 23A that the undistributed portion of the distributable income of the company of the previous year as computed for income-tax purposes shall be deemed to be distributed as dividend among the shareholders. The decision of the Court was that for the purpose of s. 23A, the expression \"shareholder\" meant only the registered shareholder and not an equitable owner. The decision hM no bearing on the true interpretation of s. 16(2).\n\nReliance was placed by counsel for the appellant on the following observations made by Hidayatullah, J., in delivering the judgment of this Court in Howrah Trading Company's case (2) :\n\n\"The words of section 18(5) must accordingly be read in the light in which the word \"shareholder\" has been used in the subsequent sections, and read in that manner, the present assessee, notwithstanding the equitable right to the dividend, was not entitled to be regarded as a \"shareholder\" for the purpose of section 18(5) of the Act. That benefit can only go to the person who, both in law and in equity, is to be regarded as the owner of the shares and between whom and the company exists the bond of membership and ownership of a share in the share capital of the company.\" It was said by counsel for the appellants that by the use of the expression \"benefit can only go to the person who, both in law and in equity, is to be regarded as the owner of the shares\", it was laid down that dividend may be taxed only in the hands of a person who is \"in law as well as in equity\" the shareholder. But these observations are not susceptible of any such meaning.\n\nHidayatullah, J., in that case was seeking to explain that dividend income cannot be \"grossed up\" in the hands of the real owner of shares\n\n• D\n\nif the shares are registered in the name of another person. He did not say that the real owner of shares cannot be truced in respect of dividend received by him, if the shares are registered in the name of another person.\n\nWe are unable to accept the argument of counsel for the appellants that because the dividend income in respect of the shares cannot be \"grossed up\", and credit for tax paid cannot be obtained by the appellants, the appellants are not liable to be taxed in respect of dividend received by them. There is no provision in the Act which supports this plea, and the scheme of the Act lends no countenance to an expedient which may lead to gross evasion of tax.\n\nThe appeal therefore fails and is dismissed with costs.\n\nAppeal dismissed .", "total_entities": 90, "entities": [{"text": "KISHANCHAND LUNIDASINGH BAJAJ", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "KISHANCHAND LUNIDASINGH BAJAJ", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, MYSORE", "label": "RESPONDENT", "start_char": 31, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, MYSORE", "offset_not_found": false}}, {"text": "February 10, 1966", "label": "DATE", "start_char": 67, "end_char": 84, "source": "ner", "metadata": {"in_sentence": "KISHANCHAND LUNIDASINGH BAJAJ\n\nCOMMISSIONER OF INCOME-TAX, MYSORE\n\nFebruary 10, 1966."}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 88, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO, J", "label": "JUDGE", "start_char": 117, "end_char": 133, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 134, "end_char": 141, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI", "label": "JUDGE", "start_char": 144, "end_char": 155, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ", "label": "JUDGE", "start_char": 160, "end_char": 176, "source": "metadata", "metadata": {"canonical_name": "V. 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Srinil'asan", "label": "LAWYER", "start_char": 3800, "end_char": 3814, "source": "ner", "metadata": {"in_sentence": "K. Srinil'asan and R. Gopalakrislman, for the appellant."}}, {"text": "R. Gopalakrislman", "label": "LAWYER", "start_char": 3819, "end_char": 3836, "source": "ner", "metadata": {"in_sentence": "K. Srinil'asan and R. Gopalakrislman, for the appellant."}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 3858, "end_char": 3872, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Aflorney-General, R. Gmrapat/Jy Iyer, R. !/."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3931, "end_char": 3945, "source": "ner", "metadata": {"in_sentence": "Dhebar and R. N. Sachthey, for the respondenl."}}, {"text": "Shah", "label": "JUDGE", "start_char": 4012, "end_char": 4016, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J.\n\nKishanchand Bajaj and his seven sons formed a Hindu undivided family which owned shares exceeding Rs."}}, {"text": "Kishanchand Bajaj", "label": "JUDGE", "start_char": 4022, "end_char": 4039, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J.\n\nKishanchand Bajaj and his seven sons formed a Hindu undivided family which owned shares exceeding Rs.", "canonical_name": "Kishanchand Bajaj"}}, {"text": "May 16, 1956", "label": "DATE", "start_char": 4245, "end_char": 4257, "source": "ner", "metadata": {"in_sentence": "The family commenced business in money-lending and as commission agents on May 16, 1956 in the name of Messrs. Mangoomal Kishanchand and in the books of account of the firm the shares which stood registered in the name of Kishanchand with the companies were credited as capital of the business."}}, {"text": "Mangoomal Kishanchand", "label": "OTHER_PERSON", "start_char": 4281, "end_char": 4302, "source": "ner", "metadata": {"in_sentence": "The family commenced business in money-lending and as commission agents on May 16, 1956 in the name of Messrs. Mangoomal Kishanchand and in the books of account of the firm the shares which stood registered in the name of Kishanchand with the companies were credited as capital of the business."}}, {"text": "Kishanchand", "label": "JUDGE", "start_char": 4392, "end_char": 4403, "source": "ner", "metadata": {"in_sentence": "The family commenced business in money-lending and as commission agents on May 16, 1956 in the name of Messrs. Mangoomal Kishanchand and in the books of account of the firm the shares which stood registered in the name of Kishanchand with the companies were credited as capital of the business.", "canonical_name": "Kishanchand Bajaj"}}, {"text": "August 22, 1956", "label": "DATE", "start_char": 4468, "end_char": 4483, "source": "ner", "metadata": {"in_sentence": "On August 22, 1956 Shyam Sundar and Girdharlal, two of the sons of Kishanchand separated from the family, each receiving rupees two lakhs in lieu of his share."}}, {"text": "Shyam Sundar", "label": "OTHER_PERSON", "start_char": 4484, "end_char": 4496, "source": "ner", "metadata": {"in_sentence": "On August 22, 1956 Shyam Sundar and Girdharlal, two of the sons of Kishanchand separated from the family, each receiving rupees two lakhs in lieu of his share."}}, {"text": "Girdharlal", "label": "OTHER_PERSON", "start_char": 4501, "end_char": 4511, "source": "ner", "metadata": {"in_sentence": "On August 22, 1956 Shyam Sundar and Girdharlal, two of the sons of Kishanchand separated from the family, each receiving rupees two lakhs in lieu of his share."}}, {"text": "August 23, 1956", "label": "DATE", "start_char": 4629, "end_char": 4644, "source": "ner", "metadata": {"in_sentence": "On August 23, 1956 a partnership was formed between Kishanchand representing the Hindu undivided family of himself and his five sons and Shyam Sundar and Girdharlal, for carrying on the business of Messrs. Mangoomal Kishanchand."}}, {"text": "Hmdu undivided family could not be assessed under the Income-tax Act, 1922", "label": "STATUTE", "start_char": 6049, "end_char": 6123, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 66", "label": "PROVISION", "start_char": 6212, "end_char": 6217, "source": "regex", "metadata": {"linked_statute_text": "the Hmdu undivided family could not be assessed under the Income-tax Act, 1922", "statute": "the Hmdu undivided family could not be assessed under the Income-tax Act, 1922"}}, {"text": "Indian Jncorne-tax Act, 1922", "label": "STATUTE", "start_char": 6229, "end_char": 6257, "source": "regex", "metadata": {}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 6289, "end_char": 6309, "source": "ner", "metadata": {"in_sentence": "The Tribunal then referred under s. 66 (I) of the Indian Jncorne-tax Act, 1922, the following question to the High Court of Mysore for opinion :\n\n\"Whether on the facts and circumstances of the case, the dividend income from shares standing in the name of Kishanchand Lunidasingh Bajaj and acquired with the funds of the Hindu undivided family of which the said C person was the karta was assessable in the hands of the\n\nassessee family ?\""}}, {"text": "Kishanchand Lunidasingh Bajaj", "label": "PETITIONER", "start_char": 6434, "end_char": 6463, "source": "ner", "metadata": {"in_sentence": "The Tribunal then referred under s. 66 (I) of the Indian Jncorne-tax Act, 1922, the following question to the High Court of Mysore for opinion :\n\n\"Whether on the facts and circumstances of the case, the dividend income from shares standing in the name of Kishanchand Lunidasingh Bajaj and acquired with the funds of the Hindu undivided family of which the said C person was the karta was assessable in the hands of the\n\nassessee family ?\"", "canonical_name": "KISHANCHAND LUNIDASINGH BAJAJ"}}, {"text": "s. 16", "label": "PROVISION", "start_char": 7230, "end_char": 7235, "source": "regex", "metadata": {"linked_statute_text": "the Indian Jncorne-tax Act, 1922", "statute": "the Indian Jncorne-tax Act, 1922"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 7247, "end_char": 7274, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7488, "end_char": 7492, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 7750, "end_char": 7754, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 8609, "end_char": 8613, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 8840, "end_char": 8844, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 9446, "end_char": 9456, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 9471, "end_char": 9485, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2", "label": "PROVISION", "start_char": 9604, "end_char": 9608, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 9701, "end_char": 9710, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 9760, "end_char": 9770, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 9932, "end_char": 9941, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 9976, "end_char": 9985, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 10027, "end_char": 10037, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15", "label": "PROVISION", "start_char": 10039, "end_char": 10049, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-lax Act, 1922", "label": "STATUTE", "start_char": 13053, "end_char": 13073, "source": "regex", "metadata": {}}, {"text": "s. 16", "label": "PROVISION", "start_char": 13374, "end_char": 13379, "source": "regex", "metadata": {"linked_statute_text": "Under the Income-lax Act, 1922", "statute": "Under the Income-lax Act, 1922"}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 14923, "end_char": 14931, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 14969, "end_char": 14977, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 15301, "end_char": 15306, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 15364, "end_char": 15368, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 15372, "end_char": 15379, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18", "label": "PROVISION", "start_char": 15560, "end_char": 15565, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 15685, "end_char": 15703, "source": "ner", "metadata": {"in_sentence": "The clause provides that deduction made by a company and paid to the account of the Central Government in accordance with the provisions of s. 18 and any sum by which a dividend has been increased under sub-s. (2) of s. 16 shall\n\n; •\n\nbe treated as payment of income-tax or super-tax on behalf of the person from whose income the deduction was made, and credit shall be given to him therefor."}}, {"text": "s. 18", "label": "PROVISION", "start_char": 15741, "end_char": 15746, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 15818, "end_char": 15823, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18", "label": "PROVISION", "start_char": 16065, "end_char": 16070, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 16092, "end_char": 16100, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 16524, "end_char": 16529, "source": "regex", "metadata": {"statute": null}}, {"text": "Howrah Trading Company", "label": "ORG", "start_char": 16554, "end_char": 16576, "source": "ner", "metadata": {"in_sentence": "In Howrah Trading Company's case (1) it was held that a person who had purchased shares in a company under a blank transfer and in whose name the shares had not been registered in the books of the company is not a \"shareholder\" in respect of such shares within the meaning of s. 18(5) of the Income-tax Act, notwithstanding his equitable right to receive dividend on such shares."}}, {"text": "s. 18(5)", "label": "PROVISION", "start_char": 16827, "end_char": 16835, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 16843, "end_char": 16857, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 17022, "end_char": 17030, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18(5)", "label": "PROVISION", "start_char": 17181, "end_char": 17189, "source": "regex", "metadata": {"statute": null}}, {"text": "Howrah Trading Companys", "label": "ORG", "start_char": 17544, "end_char": 17567, "source": "ner", "metadata": {"in_sentence": "In Income-tax Officer, North Satara v. ArPind N. Mafatlal & Others (2) it was held, following the judgment in Howrah Trading Companys' case t'), that the registered shareholder alone is entitled to the benefit of the credit for tax paid by the company under s. 18(5) and the corresponding \"grossing up\" under s. 16(2)."}}, {"text": "s. 18(5)", "label": "PROVISION", "start_char": 17692, "end_char": 17700, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 17743, "end_char": 17751, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 17814, "end_char": 17828, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 16(2) and 18(5)", "label": "PROVISION", "start_char": 18149, "end_char": 18168, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 18529, "end_char": 18535, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 18543, "end_char": 18570, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "[1962] 2 S.C.R. 871", "label": "CASE_CITATION", "start_char": 18765, "end_char": 18784, "source": "regex", "metadata": {}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 19106, "end_char": 19112, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 19127, "end_char": 19141, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 19552, "end_char": 19558, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "Shakuntala", "label": "OTHER_PERSON", "start_char": 19573, "end_char": 19583, "source": "ner", "metadata": {"in_sentence": "Therefore the amount appropriate to the shares had to be included in the income of the members of the family in whose names the shares stood in the register of the company, and as the Hindu undivided family was not a registered shareholder of the company, the amount deemed to he distributed could not be assessed as the income of the family under s. 23A. The Court in Shakuntala's case(') was dealing with notional income."}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 19720, "end_char": 19726, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 19856, "end_char": 19862, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 20118, "end_char": 20124, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(2)", "label": "PROVISION", "start_char": 20278, "end_char": 20286, "source": "regex", "metadata": {"statute": null}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 20376, "end_char": 20388, "source": "ner", "metadata": {"in_sentence": "Reliance was placed by counsel for the appellant on the following observations made by Hidayatullah, J., in delivering the judgment of this Court in Howrah Trading Company's case (2) :\n\n\"The words of section 18(5) must accordingly be read in the light in which the word \"shareholder\" has been used in the subsequent sections, and read in that manner, the present assessee, notwithstanding the equitable right to the dividend, was not entitled to be regarded as a \"shareholder\" for the purpose of section 18(5) of the Act."}}, {"text": "section 18(5)", "label": "PROVISION", "start_char": 20489, "end_char": 20502, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18(5)", "label": "PROVISION", "start_char": 20785, "end_char": 20798, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_582_589_EN", "year": 1966, "text": "ST A TE OF KERA LA\n\nRAMASWA'.\\11 IYER & SONS\n\nFebruary I I, 1966\n\n[P. n. GAJlNDRAGADKAR, C.J., K. N. WANCllOO, J. c.\n\nSHAii, S. M. S!KRI ANU \\I. RAMASWAMI, JJ.j\n\nJ'ravancore-Cochi11 Ger1.m1/ Sales Tax Act (11 of 1125 M.E.)- Suit to recover excesi tax paid-Jurisdiction of civil court if harrtd.\n\nPan of Sales-tax paid by the respondent was assessed upon the amount which it collected from its customers as &ales-tax and which was included\n\ni.o its net tumoYer.\n\nA suit by the respondent for refund of that part C of the sales-tax which was charged on the sales-tax collected by the respondent on the basis that it was not lawfully due under the Travancon:.\n\nCochin General Sale• Tax Act, 1950, was decreed hy the 1rial court and the decree was confirmed by the High Court.\n\nIn appeal to this Court, it \\\\'as contended that the civtl coun had no jurisdiction to try the suit.\n\nHELD : By constituting appC\\lpriatc authorities under 1hc Act and D creating a hierarchy of authorities to ()ea] with tho problem of levying tax as contemplated by the Act, the jurisdiction of the civil court to entertain the suit was excluded by necessary implication. (586 GJ Jurisdiction of the ci1il coun to try the suit was not barred by s. 2JA ousting tho jurisdiction of the civil court, beca11o; e that aection which was not retroipective in operation was inraled into the Act after the suit was filed.\n\nBut the jurisdiction of the c1vil court may bo e<cludcJ by expr°\" E enactment or by necessary intendment arising from the scheme of tho\n\nAct.\n\nThe Travancore-Cochin Sales Tax Act is a c0mplete code dealing \\Vilh the levy, asessn1cnt, collection and refund of tax.\n\nIt authorises in- \\estment of power in a hierarchy of authorities to adminio; tL'r the Act.\n\nFor tho purpose of making assessment of tax, the authorities have power\n\n10 decide all questions ari•; ng before them, and the orders of the appellate authorities, subject to the exercise of revisional jurisdiction by the Board of Revenue, were declared final.\n\nThe liability to pay tax arose I' under and by virtue of the provisions of the Act and the quantum or liability was determined under the Act alone.\n\nFurther, at the material time. there was no cxpreso provision in the Act, which obliged the taxi\"g authority to exclude from the computation of the taxable turnover the amount of sales-tax collected hy the dealer.\n\nHence, it could not be said that by ass-es'\\in~ sales-tax on such amount, the taxing authority had infringed a prohibition imooscd by the statute upon him. There- G fore, the principle in Secretary of State for India v. Mask and Co. L.R. 67 I.A. 222, that civil court5 have jurisdiction to examine a case where the provision' of the statute have hccn infrin2ed did not apply in the instant case. [583 F; 584 C; 585 H-586 B; 589 B]\n\nPr'1Ylocla/ Govemme'lt of Madras '\" J. S. Basappa, [1964] 5 S.C'.R. 517; 15 S.T.C. 144 (S.C.), overruled.\n\nKamala Mill.v v. State of Bombay, [1966) 1 S.C.R. 64, foJIO\\\\Cd.\n\nH Georxe Oaks v. State of Madras, [1962[ 2 S.e.R. 570; A.LR. 1962 S.C. 1037 and K. S Venkataraman v. State of Madras, [1966] 2 S.C.R. 229. referred to.\n\n.. i\n\n.... - .. 1\n\nA CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1104 of\n\n1964.\n\nAppeal by special leave from the judgment and decree dated the October 7, 1963 of the Kerala High Court in A.S. No. 190 of 1959 .\n\nC. K. Daphtary, Attomey-General and A. G. Pudissery, for the appellant.\n\nT. N. Subbramania Iyer and M. R. K. Pillai, for the respondent.\n\nThe Judgment of the Court was delivered by Shah, J. For the period August 16, 1950 to March 31, 1951 the respondents were assessed to sales-tax under the Travancore- Cochin General Sales-tax Act, 1950, by the assessing authority, Moovattupuzha, on a turnover of Rs. 14,04,732/7/6 which included Rs. 49,318/7/4 collected by the respondents from their constituents as tax on their sale transactions. The respondents paid the tax assessed and commenced an action in the Court of the District Judge, Parur, for a decree for Rs. 7,577/9/1 claiming that the amount was in excess of tax lawfully due from them under the Act. The Court of First Instance decreed the claim for Rs. 7,477/9/1 with interest and proportionate costs, and the High Court of Kerala confirmed that decree.\n\nIn this appeal with special leave, on behalf of the State of Kerala the principal ground which falls to be determined is whether the jurisdiction of the Civil Court to try the suit is excluded. Section 23-A of the Travancore-Cochin General Sales-tax Act 11 of 1125 M. E. provides that :\n\n\"No suit or other civil proceeding shall, except as expressly provided in this Act, be instituted in any court to set aside or modify any assessment made under this Act.\"\n\nBut this express bar on which counsel for the State relied did not exclude the jurisdiction of the civil court, for s. 23-A was incorporated in the Travancore-Cochin General Sales-tax Act by Act 18 of 1955 after the suit was instituted by the respondents, and by s. 23-A as incorporated the jurisdiction of the civil court to try a\n\nit properly instituted before it was enacted is not ousted.\n\nj Counsel for the respondents submitted that in the absence of an express provision in the Act excluding the jurisdiction of the civil court, the courts below were right in holding that the suit was maintainable, and in support of that contention, he relied upon the decision of this Court in The Provincial Government of Madras (Now Andhra Pradesh) v. J.S. Basappa (). In Basappa's case (1), the\n\n(!) (1964] 5 S.C.R. 5I7: I5 S.T.C. 144.\n\naasessee who was taxed in respect of certain sales which took place outside the taxing State, sued the State for a decree for refund of the amounts paid by him on the plea that the transactions in respect of which the tax was levied were not taxable under the law.\n\nThis Court held that without a provision likes. 18-A of the Madras General Sales-tax Act, 1939, the jurisdiction to entertain the suit was not taken away, specially where the action of the authorities was \"wholly outside the law\". It was observed in that case that finality attached to orders passed in appeal by the Act was a finality for the purposes of the Act and \"did not make valid an action which was not warranted by the Act, as for example, the levy of tax on a commodity which was not taxed at all or was exempt.\"\n\nBut the jurisdiction of the civil court may be excluded expressly or by clear implication arising from the scheme of the Act.\n\nWhere the Legislature sets up a special tribunal to determine questions relating to rights or liabilities which arc the creation of a statute, the jurisdiction of the civil court would be deemed excluded by implication. In Raleigh Investment Company Ltd. v. GoverMr-\n\nGeneral in Council(') the Judicial Committee in dealing with the question whether the jurisdiction of the civil court to entertain a suit for refund of income-tax may be deemed to be excluded, apart from the express exclusion prescribed by s. 67 of the Income-tax Act, by the scheme of the Income-tax Act, observed :\n\n\" ........••.. the scheme of the Act (the Incometax Act) is to set up a particular machinery by the use of which alone total income assessable for income-tax is to be ascertained. The income-tax exigible is determined by reference to the total income so ascertained, and only by reference to such total income. Under the Act (s.\n\n45) there arises a duty to pay the amount of tax demanded on the basis of that assessment of total income. Jurisdiction to question the assessment otherwise than by use of the machinery expressly provided by the Act would appear to be inconsistent with the statutory obligation to pay arising by virtue of the assessment. The only doubt, indeed, in their Lordships' mind, is whether an express provision was necessary in order to exclude jurisdiction in a civil court to set aside or modify an assessment.\" In delivering the judgment of the majority in K.S. Venkataraman & Co. (P) Ltd. v. State of Madras(2), Subba Rao, J., observed :\n\n\"If a statute imposes a liability and creates an effective machinery for deciding questions of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A statute may also confer exclusive jurisdic-\n\n(I) L.R. 74 I.A. 50.\n\n(2) (19661 1 s.c.R, 229.\n\n..,\n\nH -\n\ntion on the authorities constituting the said machinery to decide finally a jurisdictional fact thereby excluding by necessary implication the jurisdiction of a civil court in that regard.\"\n\nIn a case recently decided by this Court Kamala Mills Ltd. v. State of Bombay(') exclusion of the jurisdiction of the civil court to entertain and decide suits for refund of tax paid fell to be determined.\n\nIn that case a dealer was assessed to tax under the Bombay Salestax Act 5 of 1946 in respect of \"outside sales\" which by virtue of the ban imposed by Art. 286 of the Constitution were not taxable.\n\nThe dealer sued to recover the tax paid by him. This Court held that where the Sales-tax Officer by misconceiving the nature of the transactions brings to tax transactions in respect of which the State has no authority to legislate for levying tax because of the ban imposed by Art. 286 of the Constitution, the validity of the order of assessment of tax cannot be reopened in a suit for refund of tax paid. The Bombay Sales-tax Act 5 of 1946, it is true, contained s. 20 which in terms enacted that an assessment shall not be called in question in any civil court, but the court in Kamala Mills case(') held that the jurisdiction of the civil court to entertain a suit for tax assessed under the Act was excluded expressly, and by the clear implication of the Act as well.\n\nThe assessing authority invested with power under the Trav ancore-Cochin General Sales-tax Act is constituted by the Act a tribunal, which within the limits of its authority is competent to decide all questions of fact and law arising before him in the course of proceedings for assessment, and of his own jurisdiction as well. The Act sets up machinery for levy, assessment, and collection of tax. By s. 3 of the Act charge is imposed, subject to exemptions prescribed by ss. 4, 5 and 6 upon every dealer to pay tax on his total turnover of each year. Duty to pay the tax is imposed bys. 11(2) of the Act. Section 12 sets up the procedure of the assessing authority in making assessments and s. 13 deals with recovery of tax. A tax-payer aggrieved by an order of assessment may appeal under s. 14 against the order of assessment, and the decision of the appellate authority is by cl. ( 4) subject to the power of revision conferred by s. 15 expressly declared final.\n\nSection 15 as it stood at the relevant time provided for the exercise of revisional jurisdiction by the Board of Revenue against the order of the taxing authorities-original as well as appellate. By s. 24 power is conferred upon the State Government to frame rules, setting up machinery for determination of the net chargeable turnover, for refund of tax collected in excess of true liability and for other incidental matters. The Act is therefore a complete code dealing with the levy, assessment and collection and refund of tax.\n\n(l} [1966] I s.C.R. '4 : A.l.R. 196~ S.C. 1942.\n\nIt authorises investment of power in a hierarchy of authorities to administer the Act.\n\nFor the purpose of making assessment of tax, the authorities have power to decide all questions arising before them, and the orders of the appellate authorities subject to the exercise of revisional jurisdiction under s. 15 are declared final.\n\nLiability to pay tax arises under and by virtue of the provisions of the Act, and the quantum of liability may be determined under the Act alone.\n\nIt is true that in Kamala Mills' case{') reliance was placed on behalf of the claimant upon Basappa's case('), and the following observations were made by the Court :\n\n\"In Prorincial Gorernmenl of Madras (Now Andhra Pradesh) v. J. S. Basappa it was held by this Court that the finality attached to orders passed in appeal by section 11(4) of the Madras General Sales-Tax Act (IX of 1939) was a finality for the purposes of the said Act and did not make valid an action which was not warranted by the Act, as for example, the levy of tax on a commodity which was not taxable at all or was exempt.\n\nWe ought to add that this decision was based on the fact that the said Act at the relevant time did not contain section 18A which came into force on May 15, 1951; and it was section 18A which was construed by this Court in Firm of ll/11ri Subbayya Chetty & Sons [(1964) I SCR 752].\"\n\nIn Ba.wppa's case(') the taxpayer sought in an action for refund of tax paid, a decree on the plea that the transactions in rc>pect of which tax was levied were \"outside sales\", and it was held that in the absence of expres' exclusion of the jurisdiction of the civil court, the action for refund of tax was maintainable.\n\nBut the nature of the transactions taxed in the Kamala Mills' case(') was not different.\n\nIn the judgment in Kamala Mills' case(') it was pointed out that the jurisdiction of the civil court to entertain a suit for refund of tax paid in compliance with an order of assessment may be excluded either exprc; sly or by necessary im~Jieation, and as the scheme of the Bombay Sales Tax Act, 1946, indicated that a complete machinery was set up by constituting appropriate authorities under the Act, and creating a hierarchy of authorities to deal with the problem of levying tax as contem; ilated by the Act, jurisdiction of the civil court to entertain the suit was excluded by implication as well as by express enactment. That is clear from the following observations in the Kamala Mills' case('):\n\n\"Whether or not a return is correct; whether or not transactions which are not mentioned in the return, but about which the appropriate authority has knowledge, fall\n\n(!) )1966] I S.C.R. 64.\n\n\n...\n\n• E\n\n• ..,. .\n\nJ ...\n\n, E\n\nt H\n\nwithin the mischief of the charging section; what is the true and real extent of the transactions which are assessable; all these and other allied questions have to be determined by the appropriate authorities themselves; and so; we find it impossible to accept Mr. Sastri's argument that the finding of the appropriate authority that a particular transaction is taxable under the provisions of the Act, is a finding on a collateral fact which gives the appropriate authority jurisdiction to take a further step and make the actual order of assessment.\"\n\nThe action of the taxing authority in Basappa's case(') in taxing transactions which he erroneously held were taxable was no more outside the Act, than the action of the taxing authority in Kamala Mills' case(2). If it be granted that the jurisdiction of the civil court may be excluded by express enactment or by necessary intendment arising from the scheme of the Act, Basappa's case(') must be regarded as wrongly decided.\n\nIt is true that even if the jurisdiction of the civil court is excluded, where the provisions of the statute have not been complied with or the statntory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the civil courts have jurisdiction to examine those cases : Secretary of State for India\n\nv. Mask & Company(Z). Counsel for the respondents urged that the case of the respondents fall withln that exception, since the Sales-tax Officer in imposing tax-liability acted in defiance of the mandatory provisions of the Act and in support of the argument he placed reliance upon r. 7 of the Rules framed under the Act and the definition of \"turnover\" under the Act. Under the Act sales-tax is charged for the year at the prescribed rates on the total turnover of the dealer. The Government of Travancore-Cochin promulgated rules in exercise of powers under s. 24 of the Travancore-Cochin General Sales Tax Act, and r. 7 dealt with computation of \"net turnover\". In r. 7(1) by els. (a) to (k) certain exemptions admissible in the computation of the net turnover were set out.\n\nBy notification No. SRI-1643-51-RD dated March 31, 1951 it was directed that with effect from April 1, 1951, the following clause shall be added :\n\n\"(!) all amounts of sales-tax collected by the dealer.\"\n\nBy this amendment in the computation of the taxable turnover, the amounts of sales tax collected by the dealer were not to be included. But this amendment was to have effect only from April I, 1951, and in the proceeding in this appeal tax-liability for the assessment period ending March 31, 1951 fell to be determined.\n\n(1) [1964] 5 S. C.R. 517.\n\n(2) (1966! IS. C.R. 64.\n\n(3) L. R. 67 I. A. 222.\n\n588 SUPllEME COURT REPORTS\n\n[ 1966] 3 S.C.R.\n\nThe exemption was therefore inoperative in the computation of A taxable turnover for the assessment year in question.\n\nCounsel for the respondents however contended that the effect of the amendment was merely to clarify what was implicit in the content of the expression \"turnover\". By s. 2(k) \"turnover\" means-insofar as the definition is relevant-\"the aggregate amount for which goods are either bought by or sold by a dealer, whether for cash or for deferred payment or other valuable consideration ....... \" \"Turnover\" being the aggregate amount for which goods are bought or sold, and normally the aggregate amount would include such amount as the purchaser pays to the dealer for the goods, the expression \"aggregate amount for which goods are .... sold\" within the meaning of \"turnover\" in s. 2(k) would include the amount of sales-tax received hy the dealer. There is no provision in the Act which may hy implication suggest that from the connotation of the expression \"turnover\" the sales tax collected in the year of assessment ending March 31, 1951 was to be excluded. Exclusion prescribed by cl. (1) of r. 7(1) enacted with effect from April I, 1951 is not clarificatory, but prescribes an additional head in the computation of net turnover.\n\nThis Court in George Oaks (Private) Ltd. v. State of Madras(•) in dealing with the question whether sales tax charged by the dealer may be excluded within the meaning of the expression \"turnover\" as used in the Madras General Sales-Tax Act, 1939, observed:\n\n\"Under the definition of turnover the aggregate amount for which goods arc bought or sold is taxable.\n\nThis aggregate amount \"includes the tax as part of the price paid by the buyer. The amount goes into the common till of the dealer till he pays the tax. It is money which he keeps using for his business till he pays it over to Government. Indeed, he may turn it over again and again till he finally hands it to Government. There is thus nothing anamolous in the Jaw treating it as part of the amount on which tax must be paid by him. This concep-· tion of a turnover is not new. It is found in England and America and there is no reason to think that when the legislatures in India defined 'turnover' to include ta11 also, they were striking out into something quite unknown and unheard of before.\"\n\nCounsel for the respondents contended that these observations made in interpreting the terms of the Madras General Sales tax (Definition of Turnover and Validation of Assessments) Act, 1954, have no bearing on the interpretation of the expression \"turnover\" as used in the Travancore-Cochin General Sales tax Act.\n\nBut the\n\n(I) [1962) 2 S.C.R. 570 : A. I. R. 19152 S. C. 1037.\n\nobservations made by the Court were not made in the context of any special statute.\n\nThere was in the Travancore-Cochin General Sales-tax Act at the material time no express provision which obliged the taxing authority to exclude from the computation of taxable turnover the amount of sales-tax collected by the dealer. The argument of counsel for the respondents that the taxing authority has infringed a prohibition imposed upon him has therefore no substance.\n\nThe appeal is therefore allowed and the suit is dismissed.\n\nThere will be no order as to costs throughout.\n\nAppeal allowed.\n\nMl! Sup.C.J./66-6", "total_entities": 65, "entities": [{"text": "ST A TE OF KERA", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "STATE OF KERALA", "offset_not_found": false}}, {"text": "S. M. S!KRI ANU \\I. RAMASWAMI, JJ", "label": "JUDGE", "start_char": 125, "end_char": 158, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 191, "end_char": 204, "source": "regex", "metadata": {}}, {"text": "Tax Act, 1950", "label": "STATUTE", "start_char": 679, "end_char": 692, "source": "regex", "metadata": {}}, {"text": "s. 2J", "label": "PROVISION", "start_char": 1219, "end_char": 1224, "source": "regex", "metadata": {"linked_statute_text": "Tax Act, 1950", "statute": "Tax Act, 1950"}}, {"text": "L.R. 67 I.A. 222", "label": "CASE_CITATION", "start_char": 2605, "end_char": 2621, "source": "regex", "metadata": {}}, {"text": "[1966) 1 S.C.R. 64", "label": "CASE_CITATION", "start_char": 2945, "end_char": 2963, "source": "regex", "metadata": {}}, {"text": "[1966] 2 S.C.R. 229", "label": "CASE_CITATION", "start_char": 3095, "end_char": 3114, "source": "regex", "metadata": {}}, {"text": "C. K. Daphtary", "label": "LAWYER", "start_char": 3346, "end_char": 3360, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attomey-General and A. G. Pudissery, for the appellant."}}, {"text": "A. G. Pudissery", "label": "LAWYER", "start_char": 3382, "end_char": 3397, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attomey-General and A. G. Pudissery, for the appellant."}}, {"text": "T. N. Subbramania Iyer", "label": "LAWYER", "start_char": 3419, "end_char": 3441, "source": "ner", "metadata": {"in_sentence": "T. N. Subbramania Iyer and M. R. K. Pillai, for the respondent."}}, {"text": "M. R. K. Pillai", "label": "LAWYER", "start_char": 3446, "end_char": 3461, "source": "ner", "metadata": {"in_sentence": "T. N. Subbramania Iyer and M. R. K. Pillai, for the respondent."}}, {"text": "Shah", "label": "JUDGE", "start_char": 3527, "end_char": 3531, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. For the period August 16, 1950 to March 31, 1951 the respondents were assessed to sales-tax under the Travancore- Cochin General Sales-tax Act, 1950, by the assessing authority, Moovattupuzha, on a turnover of Rs."}}, {"text": "Travancore- Cochin General Sales-tax Act, 1950", "label": "STATUTE", "start_char": 3638, "end_char": 3684, "source": "regex", "metadata": {}}, {"text": "Moovattupuzha", "label": "GPE", "start_char": 3714, "end_char": 3727, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Shah, J. For the period August 16, 1950 to March 31, 1951 the respondents were assessed to sales-tax under the Travancore- Cochin General Sales-tax Act, 1950, by the assessing authority, Moovattupuzha, on a turnover of Rs."}}, {"text": "District Judge, Parur", "label": "COURT", "start_char": 3964, "end_char": 3985, "source": "ner", "metadata": {"in_sentence": "The respondents paid the tax assessed and commenced an action in the Court of the District Judge, Parur, for a decree for Rs."}}, {"text": "High Court of Kerala", "label": "COURT", "start_char": 4213, "end_char": 4233, "source": "ner", "metadata": {"in_sentence": "7,477/9/1 with interest and proportionate costs, and the High Court of Kerala confirmed that decree."}}, {"text": "Kerala", "label": "GPE", "start_char": 4319, "end_char": 4325, "source": "ner", "metadata": {"in_sentence": "In this appeal with special leave, on behalf of the State of Kerala the principal ground which falls to be determined is whether the jurisdiction of the Civil Court to try the suit is excluded."}}, {"text": "Section 23", "label": "PROVISION", "start_char": 4452, "end_char": 4462, "source": "regex", "metadata": {"linked_statute_text": "the Travancore- Cochin General Sales-tax Act, 1950", "statute": "the Travancore- Cochin General Sales-tax Act, 1950"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 4834, "end_char": 4839, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 4981, "end_char": 4986, "source": "regex", "metadata": {"statute": null}}, {"text": "Basappa", "label": "OTHER_PERSON", "start_char": 5485, "end_char": 5492, "source": "ner", "metadata": {"in_sentence": "In Basappa's case (1), the\n\n(!) ("}}, {"text": "(1964] 5 S.C.R. 5", "label": "CASE_CITATION", "start_char": 5514, "end_char": 5531, "source": "regex", "metadata": {}}, {"text": "aasessee", "label": "PETITIONER", "start_char": 5551, "end_char": 5559, "source": "ner", "metadata": {"in_sentence": "aasessee who was taxed in respect of certain sales which took place outside the taxing State, sued the State for a decree for refund of the amounts paid by him on the plea that the transactions in respect of which the tax was levied were not taxable under the law."}}, {"text": "Madras General Sales-tax Act, 1939", "label": "STATUTE", "start_char": 5877, "end_char": 5911, "source": "regex", "metadata": {}}, {"text": "s. 67", "label": "PROVISION", "start_char": 6977, "end_char": 6982, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 6990, "end_char": 7004, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7027, "end_char": 7041, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s.\n\n45", "label": "PROVISION", "start_char": 7381, "end_char": 7387, "source": "regex", "metadata": {"statute": null}}, {"text": "L.R. 74 I.A. 50", "label": "CASE_CITATION", "start_char": 8324, "end_char": 8339, "source": "regex", "metadata": {}}, {"text": "Art. 286", "label": "PROVISION", "start_char": 8926, "end_char": 8934, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 286", "label": "PROVISION", "start_char": 9252, "end_char": 9260, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 20", "label": "PROVISION", "start_char": 9440, "end_char": 9445, "source": "regex", "metadata": {"statute": null}}, {"text": "Kamala Mills", "label": "ORG", "start_char": 9557, "end_char": 9569, "source": "ner", "metadata": {"in_sentence": "The Bombay Sales-tax Act 5 of 1946, it is true, contained s. 20 which in terms enacted that an assessment shall not be called in question in any civil court, but the court in Kamala Mills case(') held that the jurisdiction of the civil court to entertain a suit for tax assessed under the Act was excluded expressly, and by the clear implication of the Act as well."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 10151, "end_char": 10155, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 4, 5 and 6", "label": "PROVISION", "start_char": 10222, "end_char": 10236, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 10356, "end_char": 10366, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 10442, "end_char": 10447, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 10541, "end_char": 10546, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 10685, "end_char": 10690, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 15", "label": "PROVISION", "start_char": 10718, "end_char": 10728, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 10917, "end_char": 10922, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 11606, "end_char": 11611, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11(4)", "label": "PROVISION", "start_char": 12105, "end_char": 12118, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18A", "label": "PROVISION", "start_char": 12489, "end_char": 12500, "source": "regex", "metadata": {"statute": null}}, {"text": "May 15, 1951", "label": "DATE", "start_char": 12526, "end_char": 12538, "source": "ner", "metadata": {"in_sentence": "We ought to add that this decision was based on the fact that the said Act at the relevant time did not contain section 18A which came into force on May 15, 1951; and it was section 18A which was construed by this Court in Firm of ll/11ri Subbayya Chetty & Sons [(1964) I SCR 752].\""}}, {"text": "section 18A", "label": "PROVISION", "start_char": 12551, "end_char": 12562, "source": "regex", "metadata": {"statute": null}}, {"text": "Ba.wppa", "label": "OTHER_PERSON", "start_char": 12664, "end_char": 12671, "source": "ner", "metadata": {"in_sentence": "In Ba.wppa's case(') the taxpayer sought in an action for refund of tax paid, a decree on the plea that the transactions in rc>pect of which tax was levied were \"outside sales\", and it was held that in the absence of expres' exclusion of the jurisdiction of the civil court, the action for refund of tax was maintainable."}}, {"text": "Bombay Sales Tax Act, 1946", "label": "STATUTE", "start_char": 13348, "end_char": 13374, "source": "regex", "metadata": {}}, {"text": "Sastri", "label": "OTHER_PERSON", "start_char": 14276, "end_char": 14282, "source": "ner", "metadata": {"in_sentence": "J ...\n\n, E\n\nt H\n\nwithin the mischief of the charging section; what is the true and real extent of the transactions which are assessable; all these and other allied questions have to be determined by the appropriate authorities themselves; and so; we find it impossible to accept Mr. Sastri's argument that the finding of the appropriate authority that a particular transaction is taxable under the provisions of the Act, is a finding on a collateral fact which gives the appropriate authority jurisdiction to take a further step and make the actual order of assessment.\""}}, {"text": "Government of Travancore-Cochin", "label": "ORG", "start_char": 15811, "end_char": 15842, "source": "ner", "metadata": {"in_sentence": "The Government of Travancore-Cochin promulgated rules in exercise of powers under s. 24 of the Travancore-Cochin General Sales Tax Act, and r. 7 dealt with computation of \"net turnover\"."}}, {"text": "s. 24", "label": "PROVISION", "start_char": 15889, "end_char": 15894, "source": "regex", "metadata": {"statute": null}}, {"text": "April 1, 1951", "label": "DATE", "start_char": 16202, "end_char": 16215, "source": "ner", "metadata": {"in_sentence": "SRI-1643-51-RD dated March 31, 1951 it was directed that with effect from April 1, 1951, the following clause shall be added :\n\n\"(!)"}}, {"text": "March 31, 1951", "label": "DATE", "start_char": 16596, "end_char": 16610, "source": "ner", "metadata": {"in_sentence": "But this amendment was to have effect only from April I, 1951, and in the proceeding in this appeal tax-liability for the assessment period ending March 31, 1951 fell to be determined."}}, {"text": "[1964] 5 S. C.R. 517", "label": "CASE_CITATION", "start_char": 16639, "end_char": 16659, "source": "regex", "metadata": {}}, {"text": "L. R. 67 I. A. 222", "label": "CASE_CITATION", "start_char": 16691, "end_char": 16709, "source": "regex", "metadata": {}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 17044, "end_char": 17051, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(k)", "label": "PROVISION", "start_char": 17555, "end_char": 17562, "source": "regex", "metadata": {"statute": null}}, {"text": "April I, 1951", "label": "DATE", "start_char": 17906, "end_char": 17919, "source": "ner", "metadata": {"in_sentence": "1) of r. 7(1) enacted with effect from April I, 1951 is not clarificatory, but prescribes an additional head in the computation of net turnover."}}, {"text": "Madras General Sales-Tax Act, 1939", "label": "STATUTE", "start_char": 18224, "end_char": 18258, "source": "regex", "metadata": {}}, {"text": "England", "label": "GPE", "start_char": 18868, "end_char": 18875, "source": "ner", "metadata": {"in_sentence": "It is found in England and America and there is no reason to think that when the legislatures in India defined 'turnover' to include ta11 also, they were striking out into something quite unknown and unheard of before.\""}}, {"text": "America", "label": "GPE", "start_char": 18880, "end_char": 18887, "source": "ner", "metadata": {"in_sentence": "It is found in England and America and there is no reason to think that when the legislatures in India defined 'turnover' to include ta11 also, they were striking out into something quite unknown and unheard of before.\""}}, {"text": "India", "label": "GPE", "start_char": 18950, "end_char": 18955, "source": "ner", "metadata": {"in_sentence": "It is found in England and America and there is no reason to think that when the legislatures in India defined 'turnover' to include ta11 also, they were striking out into something quite unknown and unheard of before.\""}}, {"text": "[1962) 2 S.C.R. 570", "label": "CASE_CITATION", "start_char": 19402, "end_char": 19421, "source": "regex", "metadata": {}}, {"text": "was in the Travancore-Cochin General Sales-tax Act", "label": "STATUTE", "start_char": 19543, "end_char": 19593, "source": "regex", "metadata": {}}]}
{"document_id": "1966_3_590_599_EN", "year": 1966, "text": "G.SADANANDAN v.\n\nSTATE OF KERALA & ANR.\n\nFebruary 11, 1966\n\n[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO,\n\nM. HIDYATULLAH, J.C. SHAH AND\n\nS. M. S!KRI, JJ.)\n\nDefence of India Rules, 1962 Ruic 30(1)(b)-DetentiOn under- Wril petition by de1enu-Pleas that may be entertained by court durin1\n\noperation of Emergency and Presidenl's Order--Obllga1wn of detaining authoriry to place material justifying detention before coll1't-Proper affi. davll mu.st be filed by authorised person.\n\nThe petilioner was a wholesale dealer in Ker09elle oil in Kera!a State.\n\nThe State Government detained him under r. 30(l)(b) of the Defence of India Rules, 1962 on the alleged ground that he was likely to act in a manner prejudicial to the maintenance of supplies and services essential to the life of the community. By writ petition under Art. 32 of the Constitution ho challenged his detention as being maia fide, making certain specific allegations against respondent No. 2, a police official.\n\nIn particular, it was urged on his behalf that after the coming into operation of the Kerala Keroaene Control Order, 1965 which permitted kerosene trade to be carried on only under a licence, Ibero was no justification for bis detention. On\n\nbehalf of the State an affidavit was filed by the Home Secretary generally denying the petitioner's allegations. The affidavit stated, Inter alia, that even after the passing of the Kerala Kerosene Control Order it was possi\n\nblc for the petitioner to obtain a licence and carry on the trade in a pre\n\njudicial manner.\n\nHELD : (i) The Proclamation of Emergency and the notification subsequently issued by the President constitute a bar against judicial scrutiny in respect of the alleged violation of the fundamental right\\ of a detenu.\n\nNevertheless a detenu can urge in his support such statutory safeguards as are pcrmis.ible under the Rules, and when this Court is satisfied that the impugned orders suffer from serious infirmities on grounds which it is permissible for the detenu to urge, the aaid orders would be set aide. (595 D, E]\n\n(ii) The detention of a citizen under the Defence of India Rules is the result of the subjective satisfaction of the appropriate authority; and so if a prime facie case is made out by the petitioner that hi• dctontion ii either ma/a fide, or is the result of a casual approach adopted by the appropriate authority, the appropriate authority should place before the court sufficient material in the form of proper affidavit made by a duly authorised person to show that the allegations made by the petitioner about the casual character of the decision or it> ma/a fules, are not well-founded. (598\n\nIn the present case no such material had been placed before the court.\n\nRespondent No. 2, though implcaded, had not come forward to deny the specific lllcgations made against him. The Home Secretary had taken it upon himself to deny the allegations against respondent No. 2, but hia denials were at best based on hearsay evidence. The Home Secretary\"• affidavit suffred from the formal defect that it did not distinguiYI ~\n\nstatements based on personal knowledge and those made on the basis of information received.\n\nIt moreover gave no sufficient )ustification for the\n\n-A ... • '\n\n( :B\n\nI -' r\n\n'<=\n\nD •\n\n_..\n\nlilADANANDAN V. KERALA (Gajendragadkar, C.l.) 591\n\ncontinuance of the petitioner's detention after the passing of the Kerala Kerosene Control Order. {596 E, FJ\n\nUnder the circumstances there was no escape from the conclusion that the impugned order was clearly and plainly ma/a {idt.\n\n(iii) It is the paramouut requirement of the Constitution that even during Emergency, the freedom of Indian citizens cannot be taken away without the existence of the justifying necessity specified in the Rules themselves.\n\nThe tendency to treat these matters in a somewhat casual and cavalier manner which may conceivably result from the continuous use of such unfettered powers, may ultimately pose a seiious threat to the basic values on which the democratic way of life in this couutry is founded.\n\nCases of this kind may be rare; but even the presence of such rare case& constitutes a warning deserving the attention of the authorities. [599 B, CJ\n\nORIGINAL JURISDICTION : Writ Petition No. 136 of 1965.\n\nPetition under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights.\n\nM. K. Ramamurthi, S. C. Agarwal, R. K. Garg and D. P. Singh, for the petitioner.\n\nNiren De, Solicitor-General, A. G. Pudissery and M. R. Krishna Pillai, for the respondents .\n\nThe Judgment of the Court was delivered by\n\nGajendragadkar, C.J. This petition was heard on the 11th February, 1966; and at the close of the hearing, we allowed the petition and directed that the petitioner should be released forthwith and indicated that our reasons would be pronounced later.\n\nAccordingly, our present judgment gives our reasons for the order which has already been passed by us.\n\nThe petitioner, G. Sadanandan, has been detained by respondent No. I, the State ofKerala, under Rule 30(1) (b) of the Defence of India Rules, 1962 (hereinafter called \"the Rules\") by an order passed by it on the 20th October, 1965. The said order recites that from the materials placed before respondent No. I, it was satisfied that with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of supplies and services essential to the life of the community it was necessary to detain him. The said order further shows that under Rule 30(4) of the Rules, respondent No. I had decided that the petitioner be detained in the Central Prison, Trivandrum, under conditions as to maintenance, discipline and punishment of offences and breaches of discipline as provided in the Travancore-Cochin Security Prisoners Order, 1950: The petitioner challenges the validity of this order by his present petition filed under Art. 32 of the Constitution.\n\n_ The petitioner is a businessman who carries on wholesale business in kerosene oil as ESSO dealer and in provisions in his places of business at Trivandrum. In connection with his whole-\n\n\\ ...__\n\n592 SUPlll!Mll COUil T llEPOR TS\n\n[1966] 3 S.C.R.\n\nsale business of selling kerosene oil, the petitioner receives kero- 1ene oil either in bulk or in sealed tins from the ESSO company.\n\nWhen the kerosene oil is thus received by him, the petitioner transfers the kerosene oil from barrels into empty tins purchased from the market and sells them to his customers. Until the Kerala Kerosene Control Order, 1965 was promulgated, and brought into force on the 24th October, 1965, the petitioner was not required to take a licence for carrying on his business in kerosene oil. As from the 24th October, 1965 the said trade could not be carried on in Kerala without obtaining a licence. It is common ground that the petitioner has not been granted a licence in that behalf. To his present petition, the petitioner has joined respondent No. l and N. Paramasivan Nair, Deputy Superintendent of Police (Civil) Supplies Cell, Crime Branch, Trivandrum, as respondent No. 2.\n\nThe petitioner alleges that respondent No. 2 caused to be initiated criminal proceedings against him in Criminal Case No. 70 of 1965 in the Court of the District Magistrate, Trivandrum.\n\nThese proceedings were commenced on the 20th May, 1965. The charge against the petitioner set out in the First Information Report was that the petitioner had exhibited a board showing stock \"nil\" on the 20th May, 1965, at about 7 00 p.m. in his wholesale shop at Chalai, Trivandrum when, in fact, there was stock available in his shop. The Police searched the shop that day in the presence of respondent No. 2, though in the relevant papers prepared in regard to the said search, no reference was made to his presence. According to the petitioner, the board indicating 'nil' stock had been exhibited in his shop, because 7 tins out of the available stock had been sold to one D. N. Siktar in regard to which a sale memo was being prepared when the raid took place, whereas the two remaining tins were in a damaged condition and could not have been sold. Even so, the raid was carried out and F.1.R. was lodged against the petitioner alleging that he had committed an offence by violating Rule 125(2) and (3) of the Rules read with clause 4 of the Kerosene (Price Control) Order, 1963.\n\nThe petitioner appeared before the District Magistrate before whom the F.l.R. had been filed, and was released by him on bail.\n\nIn this case, all the witnesses for the prosecution had been examined, except the officer who had submitted the charge-sheet. Except the Sub-Inspector of Police (P.W.l.), and the Head Constable (P.W. 2), no other witnesses supported the prosecution case, though in all five witnesses were examined for the prosecution.\n\nPending the trial of this case, the Inspector of Police, Crime Branch (Food), Trivandrum, who is a subordinate of respondent No. 2, initiated another case at his instance, being case No. 332 of t 965 before the District Magistrate, Trivandrum, on the 29th September, 1965. In this case, it was alleged that the petitioner bad\n\n- .,\n\n, •\n\n. . ..\n\nl..\n\n.. •\n\n~ ~\n\n...\n\nB . l\n\n' D\n\nSADANANDAN v. KBRALA (Gajendragadkar, C.J.) 593\n\nviolated R. 125(A) of the Rules read with Rules 3 and 4 of the Kerosene (Price Control) Order, 1963, as well as had committed. an offence under section 420, I.P.C. The F.l.R. in regard to this case was made by Narayan Pillai Sivasankaran Nair of Tampanoor, Trivandrum. This Nair is a salesman in his elder brother's provision store at Trivandrum, and both these brothers are close relatives of respondent No. 2. This case was initiated after the search of the petitioner's shop at Chalai. The petitioner was then arrested and brought before the District Magistrate on the 30th September, 1965. On this occasion also, when the petitioner's shop was searched, respondent No. 2 was present. During the course of the search, the police seized one tin weighing 16 200 kgs. None of the other 899 tins which were stored in the two rooms of the place of sale of the petitioner, were seized. The police party also 11earched the godown of the petitioner and took into custody 632 tins of kerosene oil. Six barrels of oil were likewise seized. According to the petitioner, all this was done at the instance of N. Sivasankaran Nair who is a close relative of respondent No. 2 and who had purchased two tins of kerosene oil from the petitioner which were produced before the police officers for the purpose of showing that the tins were short of contents.\n\nThe petitioner was granted interim bail on the 30th September, 1965 by the District Magistrate, and finally released on bail on the execution of a bail bond on the 21st October, 1965. When the order of bail was made absolute by the District Magistrate, the Assistant Public Prosecutor did not oppose the release of the petitioner on bail. The petitioner contends that though the case Wai posted several times for the submission of the final report by the prosecution, respondent No. 2 has so managed that the said final report has not been submitted till the date of the present petition.\n\nAfter the petitioner was released by the District Magistrate on the 21s! October, 1965, he reached home at 4 o'clock in the evening.\n\nImmediately thereafter, respondent No. 2 came in a jeep to the\n\netitioner's residence and took him into custody. When the petitioner asked respondent No. 2 as to why he was being arrested he refused to disclose the grounds. Respondent No. 2 took 'the petitioner into custody by force and carried him to jail.\n\nThe petitioner's wife thereafter instructed a lawyer to contact the petitioner who in turn tried to get in touch with the petitioner at Wanchiyoor Police Station, but did not succeed. Under these circumstances, the petitioner's wife instructed her advocate to file a writ petition in the Kerala High Court for the production of the petitioner. Accordingly, a writ petition was filed on the 22nd October, 1965.\n\nLater, the advocate engaged by the petitioner's wife was able to get in tonch with the petitioner with the permission of the Home\n\nSecretary in the Central Jail at Trivandrum. At this interview, the A advocate was given the detention order which had been served on .. the petitioner, and instructed to take suitable action to challenge the said order. In view of the fact that the petition filed by the Advocate in the Kerala High Court under the vague instructions of the petitioner's wife contained a very limited prayer, the petitioner's advocate withdrew the said petition on the 27th October, 1965.\n\nB Ultimately, the present petition has been filed in this Court on behalf of the petitioner on the 20th November, 1965. That, in brief is the background of the present writ petition.\n\nThe petitioner challenges the validity of the impugned order of detention mainly on the ground that it is ma/a fide, and has been c passed as a result of the malicious and false reports which have been prepared at the instance of respondent No. 2.\n\nThe whole object of respondent No. 2, according to the petitioner, in securing the preparation of these false reports is to eliminate the petitioner from the field of wholesale business in kerosene oil in Trivandrum, so that his relatives may benefit and obtain the dealership of the ESSO Com , pany. The petitioner further alleges that the order of detention D has been passed solely with the purpose of denying him the benefit of the order of bail which was passed in his favour by the District Magistrate on the 21st October, 1965. In support of the plea that his detention is malafide, the petitioner strongly relies on the fact that on the 24th October, 1965, the Kerala Kerosene Control Order, 1965 has come into force and in consequence unless the petitioner E gets a licence, it would be impossible for him to carry on his business of kerosene oil; and yet, the detention order ostensibly passed against him as a result of his activities alleged to be prejudicial in respect of his business in kerosene oil, continues to be enforced against him even after the Control Order has been brought into operation. It is mainly on these grounds that the petitioner chal- F lenges the validity of the impugned order of his detention.\n\nThe allegations made in the petition have been controverted by Mr. Devassy who is the Secretary in the Home Department of respondent No. I. In his counter-affidavit_. the Home. Secretary. as, in a general way, denied all the allegations made m the pet1tton.\n\nThe purport of the counter-affidavit filed by the Home Secretary G is that the impugned order of detention has been passed by respon-\n\n~ J dent No. I bona fide and after full consideration of the merits oft~~ case. Respondent No. I was satisfied, says the counter-affida\"'.1t,. that the activity of the petitioner was likely to prejudice supplies essential to the life of the community as a whole; and so, the pell •, tioner's contention that the impugned order is ma/a fide is contro- H verted.\n\nIn dealing with writ petitions by whkh orders of detention passed by the appropriate authorities under r. 30(1) (b) of the Rules are\n\nr •.\n\n~ .\n\n-f •\n\nSADANANDAN V. KBRALA (Gajendragadkar, C.J.) 595\n\nchallenged, this Court has consistently recognised the limited scope of the enquiry which is judicially permissible. Whether or not the detention of a detenu is justified on the merits, is not open to judicial scrutiny; that is a matter left by the Rules to the subjective satisfaction of the appropriate authorities empowered to pass orders under the relevant Rule. This Court, no doubt, realises in dealing with pleas for habeas corpus in such proceedings that citiz:ens are detained under the Rules without a trial, and that clearly is inconsistent with the normal concept of the Rule of Law in a democratic State. But having regard to the fact that an Emergency has been proclaimed under Art. 352 of the Constitution, certain consequences follow; and one of these consequences is that the citizens detained under the Rules are precluded from challenging the validity of the Rules on the ground that their detention contravenes their fundamental rights guaranteed by Articles 19, 20 and 21.\n\nThe presence of the Proclamation of Emergency and the notification subsequently issued by the President constitute a bar against judicial scrutiny in respect of the alleged violation of the fundamental rights of the detenu. This position has always been recognised by this Court in dealing with such writ petitions.\n\nNevertheless, this Court naturally examines the detention orders carefully and allows full scope to the detenus to urge such statutory safeguards as are permissible under the Rules, and it has been repeatedly observed by this Court that in cases where this Court is satisfied that the impugned orders suffer from serious infirmities on grounds which it is permissible for the detenus to urge, the said orders would be set aside. Subject to this position, the merits of the orders of detention are not open to judicial scrutiny. That is why pleas made by the detenus that the impugned orders have been passed by the appropriate authorities without applying their minds properly to the allegations on which the impugned orders purport to be based, or that they have been passed malafide, do not usually 1ucceed, because this Court finds that the allegations made by the detenus are either not well-founded, or have been made in a casual and light-hearted manner. But cases do come before this Court, though not frequently, where this Court comes to the conclusion that the impugned order of detention is passed without the appropriate authority applying its mind to the problem, or that it can well be regarded as an order passed malafide. Having heard Mr. Ramamurthi for the petitioner and the learned Additional Solicitor- General for respondent No. 1, we have come to the conclusion that the impugned order in the present case must be characterised as. having been passed mala fide.\n\nThe first consideration which has weighed in our minds in dealing with Mr. Ramamurthi's contentions in the present proceedings is that respondent No. 2 has not chosen to make a counter-affidavit denying the several specific allegations made against him by the\n\npetitioner. Broadly stated, the petition alleges that respondent No. 2 is responsible for the criminal complaints made against the petitioner, that respondent No. 2 was present when his premises were searched, and that respondent No. 2 actually went to the house of the petitioner when the petitioner was forcibly taken into custody and removed to the j:1il. The petition further alleges that the second criminal complaint filed against the petitioner was the direct result of the F.l.R. by Narayan Pillai Sivasankaran Nair who and his brothers are the trade rivals of the petitioner and are closely related to respondent No. 2. The petition likewise specifically alleges that the reports on which the impugned order of detention has been pass- cd, were the result of the instigation of respondent No. 2.\n\nWhether or not these allegations, if proved, would necessarily make the impugned order ma/a fide, is another matter; but, for the present, we are dealing with the point that respondent No. 2 who has been impleaded to the present proceedings and against whom specific and clear allegations have heen made in the petition, has not chosen to deny them on oath. In our opinion, the failure of respondent No. 2 to deny these serious allegations constitutes a serious infirmity in the case of respondent No. I.\n\nThe significance of this infirmity is heightened when we look at the counter-affidavit filed by the Home Secretary. This affidavit has not been made in a proper form. The deponent does not say which of the statements made by him in his affidavit are based on his personal knowledge and which are the result of the information received by him from documents or otherwise. The form in which the affidavit has been made is so irregular that the learned Additional Solicitor-General fairly conceded that the affidavit could be ignored on that ground alone. That, however, is not the only infirmity in this allidavit.\n\nIt is surprising that the Home Secretary should have taken upon himself to deny the allegations made by the petition against respondent No. 2 when it is plain that his denial is based on hearsay evidence at the best. It is not easy for us to appreciate why the Home Secretary should have undertaken the task of refuting serious allegations made by the petition against respondent No. 2 instead of requiring respondent No. 2 to make a specific denial on his own. Whether or not Narayan Pillai Sivasankaran Nair and his brother are close relatives of respondent No. 2 and whether or not they are the trade rivals of the petitioner and expect to receive benefit from his detention, are matters on which the Home Secretary &hould have wisely refrained from making any statement in his affidavit. He should have left it to respondent No. 2 to make the necessary averments. Besides, it is impossible to understand why the specific allegation.s made by the petition against respondent No. 2 in regard to the part played by him either in searching the petitioner's shop or in arresting him should not have been definitely\n\nG ...\n\n' -f\n\nSADANANDAN v. KERALA (Gajendragadkar, C.J.) 597\n\ndenied by respondent No. 2 himself. The statements made by the Home Secretary in his affidavit in that behalf are very vague and •nsatisfactory. We have carefully considered the affidavit made by the Home Secretary and we are satisfied that apart from the formal defect from which it plainly suffers, even otherwise the statements made in the affidavit do not appear to us to have been made by the deponent after due deliberation.\n\nTake, for instance, the statements made by the Home Secretary in regard to the petitioner's contention that the continuance of bis detention after the Kerala Kerosene Control Order, 1965 came into operation on the 24th October, 1965, is wholly unjustified.\n\nThe petitioner's grievance is clear and unambiguous. He says that unless a licence is granted to him, he would no longer be able to trade in kerosene oil; and since admittedly, no licence has been granted to him, his continued detention on the ostensible ground that his dealings in kerosene oil amount to a prejudicial activity, is entirely unjustified. Now, what does the Home Secretary 5AY in respect of this contention? On the date of the detention of the petitioner, says the Home Secretary's affidavit, the Control Order had not come into force, and that, no doubt, is true. But the question is : is the continuance of the petitioner's detention justified after the said Order came into force? The affidavit says that the petitioner is not a licensee under the Kerala Kerosene Control Order, 1965, and cannot legally carry on the business as a dealer in kerosene at present; but there is nothing under the law preventing him from applying for such licence to carry on the same business.\n\nIt is difficult to understand the logic or the reasonableness of this averment. Indeed, we ought to add that the learned Additional Solicitor-General fairly, and we think rightly and wisely, conceded that this part of the Home Secretary's affidavit could not be supported and that he saw no justification for the continuance of the petitioner's detention after the Kerala Kerosene Control Order came into operation on the 24th October, 1965. It is remarkable that in the whole of his affidavit, the Home Secretary does not say how he came to know all the facts to which he has purported to depose in his affidavit. We have, however, assumed that as Home Secretary, the file relating to the detention of the petitioner must have been handled by him, though the Home Secretary should have realised that he should himself have made a statement to that effect in his affidavit. We have had occasion to criticise affidavits made by appropriate authorities in support of the detention orders in writ proceedings, but we have not come across an affidavit which shows such an amount of casualness as in the present case. We have carefully examined all the material and relevant facts to which our attention has been drawn in the present proceedings and we see no escape from the conclusion that the impugned order of detention passed against the petitioner on the 20th October, 1965, and more\n\nparticularly, the petitioner's continued detention after the 24th October, 1965, must be characterised as clearly and plainly ma/a fide.\n\nThis is a case in which the powers conferred on the appropriate authority have, in our opinion, been abused.\n\nWe are conscious that even if a subordinate officer makes a malicious report against a citizen suggesting that he should be detained, the malice inspiring the report may not necessarily or always make the ultimate order of detention passed by the appropriate authority invalid. Even a malicious report may be true in the sense that the facts alleged may be true, but the person making the report was determined to report those facts out of malice against the party concerned. But a malicious report may also be false. In either case, the malice attributable to the reporting authority cannot, in law, be attributed to the detaining authority; but in such cases, it must appear that the detaining authority carefully examined the report and considered all the relevant material available in the case before passing the order of detention. Unfortunately, in the present case, the affidavit made by the Home Secretary is so defective and in many places so vague and ambiguous that we do not know which authority acting for respondent No. I in fact examined the case against the petitioner and what was the nature of the material placed before such authority; and the affidavit docs not contain any avermcnt that after the material was examined by the appropriate authority, the appropriate authority reached the conclusion that it was satisfied that the petitioner should he detained with a view to prevent him from acting in a manner prejudicial to the maintenance of supplies and services essential to the life of the community.\n\nAfter all, the detention of a citizen in every case is the result of the subjective satisfaction of the appropriate authority; and so, if a prima facie case is made by the petitioner that his detention is either ma/a fide, or is the result of the casual approach adopted by the appropriate authority, the appropriate authority should place before the Court sufficient material in the form of proper affidavit made by a duly authorised person to show that the allegations made by the petitioner about the casual character of the decision or its ma/a jides, arc not well-founded. The failure of respondent No. 1 to place any such material before us in the present proceedings leaves us no alternative but to accept the pica made by the petitioner that the order of detention passed against him on the 20th October, 1965, and more particularly, his continued detention after the 24th October, 1965, arc totally invalid and unjustified.\n\nIn conclusion, we wish to add that when we come across orders of this kind by which citizens arc deprived of their fundamental right of liberty without a trial on the ground that the Emergency proclaimed by the President in 1962 still continues and the powers\n\n....\n\n' . ....\n\nSADANANDAN v. KERALA (Gajendragadkar, C.I.) 599\n\nconferred on the appropriate authorities by the Defence of India Rules justify the deprivation of such liberty, we feel rudely disturbed by the thought that continuous exercise of the very wide powers conferred by the Rules on the several authorities is likely to make the conscience of the said authorities insensitive, if not blunt, to the paramount requirement of the Constitution that even during Emergency, the freedom of Indian citizens cannot be taken away without the existence of the justifying necessity specified by the Rules themselves. The tendency to treat these matters in a somewhat casual and cavalier manner which may concievably result from the continuous use of such unfettered powers, may ultimately pose a serious threat to the basic values on which the democratic way of life in this country is founded. It is true that cases of this kind are rare; but even the presence of such rare cases constitutes a warning to which we think it is our duty to invite the attention of the appropriate authorities. In the circumstances of this case we direct that respondent No. I will pay the costs of the petitioner quantified at Rs. 500.\n\nPetition allowed.", "total_entities": 49, "entities": [{"text": "G.SADANANDAN", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "G. Sadanandan", "offset_not_found": false}}, {"text": "STATE OF KERALA & ANR", "label": "RESPONDENT", "start_char": 17, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "STATE OF KERALA & ANR", "offset_not_found": false}}, {"text": "February 11, 1966", "label": "DATE", "start_char": 41, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "February 11, 1966\n\n[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO,\n\nM. HIDYATULLAH, J.C. SHAH AND\n\nS. M. S!KRI, JJ.)"}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 61, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "P. B. GAJENDRAGADKAR", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 90, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 124, "end_char": 131, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Defence of India Rules, 1962", "label": "STATUTE", "start_char": 156, "end_char": 184, "source": "regex", "metadata": {}}, {"text": "Defence of India Rules, 1962", "label": "STATUTE", "start_char": 609, "end_char": 637, "source": "regex", "metadata": {}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 817, "end_char": 824, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Rules, 1962", "statute": "the Defence of India Rules, 1962"}}, {"text": "lilADANANDAN V. KERALA", "label": "JUDGE", "start_char": 3269, "end_char": 3291, "source": "ner", "metadata": {"in_sentence": "It moreover gave no sufficient )ustification for the\nA ... • '\n\n( :B\n\nI -' r\n\n'<=\n\nD •\n\n_..\n\nlilADANANDAN V. KERALA (Gajendragadkar, C.l.)", "canonical_name": "lilADANANDAN V. KERALA"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 4279, "end_char": 4286, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 4294, "end_char": 4315, "source": "regex", "metadata": {}}, {"text": "M. K. Ramamurthi", "label": "LAWYER", "start_char": 4360, "end_char": 4376, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, S. C. Agarwal, R. K. Garg and D. P. Singh, for the petitioner."}}, {"text": "S. C. Agarwal", "label": "LAWYER", "start_char": 4378, "end_char": 4391, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, S. C. Agarwal, R. K. Garg and D. P. Singh, for the petitioner."}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 4393, "end_char": 4403, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, S. C. Agarwal, R. K. Garg and D. P. Singh, for the petitioner."}}, {"text": "D. P. Singh", "label": "LAWYER", "start_char": 4408, "end_char": 4419, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, S. C. Agarwal, R. K. Garg and D. P. Singh, for the petitioner."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 4442, "end_char": 4450, "source": "ner", "metadata": {"in_sentence": "Niren De, Solicitor-General, A. G. Pudissery and M. R. Krishna Pillai, for the respondents ."}}, {"text": "A. G. Pudissery", "label": "LAWYER", "start_char": 4471, "end_char": 4486, "source": "ner", "metadata": {"in_sentence": "Niren De, Solicitor-General, A. G. Pudissery and M. R. Krishna Pillai, for the respondents ."}}, {"text": "M. R. Krishna Pillai", "label": "LAWYER", "start_char": 4491, "end_char": 4511, "source": "ner", "metadata": {"in_sentence": "Niren De, Solicitor-General, A. G. Pudissery and M. R. Krishna Pillai, for the respondents ."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 4580, "end_char": 4594, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGajendragadkar, C.J. This petition was heard on the 11th February, 1966; and at the close of the hearing, we allowed the petition and directed that the petitioner should be released forthwith and indicated that our reasons would be pronounced later.", "canonical_name": "P. B. GAJENDRAGADKAR"}}, {"text": "G. Sadanandan", "label": "PETITIONER", "start_char": 4951, "end_char": 4964, "source": "ner", "metadata": {"in_sentence": "The petitioner, G. Sadanandan, has been detained by respondent No.", "canonical_name": "G. Sadanandan"}}, {"text": "Defence of India Rules, 1962", "label": "STATUTE", "start_char": 5053, "end_char": 5081, "source": "regex", "metadata": {}}, {"text": "20th October, 1965", "label": "DATE", "start_char": 5147, "end_char": 5165, "source": "ner", "metadata": {"in_sentence": "I, the State ofKerala, under Rule 30(1) (b) of the Defence of India Rules, 1962 (hereinafter called \"the Rules\") by an order passed by it on the 20th October, 1965."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 5877, "end_char": 5884, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Rules, 1962", "statute": "the Defence of India Rules, 1962"}}, {"text": "Trivandrum", "label": "GPE", "start_char": 6053, "end_char": 6063, "source": "ner", "metadata": {"in_sentence": "_ The petitioner is a businessman who carries on wholesale business in kerosene oil as ESSO dealer and in provisions in his places of business at Trivandrum."}}, {"text": "24th October, 1965", "label": "DATE", "start_char": 6561, "end_char": 6579, "source": "ner", "metadata": {"in_sentence": "Until the Kerala Kerosene Control Order, 1965 was promulgated, and brought into force on the 24th October, 1965, the petitioner was not required to take a licence for carrying on his business in kerosene oil."}}, {"text": "Kerala", "label": "GPE", "start_char": 6750, "end_char": 6756, "source": "ner", "metadata": {"in_sentence": "As from the 24th October, 1965 the said trade could not be carried on in Kerala without obtaining a licence."}}, {"text": "N. Paramasivan Nair", "label": "RESPONDENT", "start_char": 6945, "end_char": 6964, "source": "ner", "metadata": {"in_sentence": "l and N. Paramasivan Nair, Deputy Superintendent of Police (Civil) Supplies Cell, Crime Branch, Trivandrum, as respondent No."}}, {"text": "D. N. Siktar", "label": "OTHER_PERSON", "start_char": 7932, "end_char": 7944, "source": "ner", "metadata": {"in_sentence": "According to the petitioner, the board indicating 'nil' stock had been exhibited in his shop, because 7 tins out of the available stock had been sold to one D. N. Siktar in regard to which a sale memo was being prepared when the raid took place, whereas the two remaining tins were in a damaged condition and could not have been sold."}}, {"text": "clause 4", "label": "PROVISION", "start_char": 8287, "end_char": 8295, "source": "regex", "metadata": {"statute": null}}, {"text": "District Magistrate, Trivandrum", "label": "COURT", "start_char": 9001, "end_char": 9032, "source": "ner", "metadata": {"in_sentence": "332 of t 965 before the District Magistrate, Trivandrum, on the 29th September, 1965."}}, {"text": "section 420", "label": "PROVISION", "start_char": 9362, "end_char": 9373, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 9375, "end_char": 9380, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Narayan Pillai Sivasankaran Nair", "label": "OTHER_PERSON", "start_char": 9428, "end_char": 9460, "source": "ner", "metadata": {"in_sentence": "R. in regard to this case was made by Narayan Pillai Sivasankaran Nair of Tampanoor, Trivandrum."}}, {"text": "Chalai", "label": "GPE", "start_char": 9699, "end_char": 9705, "source": "ner", "metadata": {"in_sentence": "This case was initiated after the search of the petitioner's shop at Chalai."}}, {"text": "30th September, 1965", "label": "DATE", "start_char": 9790, "end_char": 9810, "source": "ner", "metadata": {"in_sentence": "The petitioner was then arrested and brought before the District Magistrate on the 30th September, 1965."}}, {"text": "N. Sivasankaran Nair", "label": "OTHER_PERSON", "start_char": 10317, "end_char": 10337, "source": "ner", "metadata": {"in_sentence": "According to the petitioner, all this was done at the instance of N. Sivasankaran Nair who is a close relative of respondent No."}}, {"text": "21st October, 1965", "label": "DATE", "start_char": 10726, "end_char": 10744, "source": "ner", "metadata": {"in_sentence": "The petitioner was granted interim bail on the 30th September, 1965 by the District Magistrate, and finally released on bail on the execution of a bail bond on the 21st October, 1965."}}, {"text": "21s! October, 1965", "label": "DATE", "start_char": 11220, "end_char": 11238, "source": "ner", "metadata": {"in_sentence": "After the petitioner was released by the District Magistrate on the 21s!"}}, {"text": "Wanchiyoor Police Station", "label": "ORG", "start_char": 11732, "end_char": 11757, "source": "ner", "metadata": {"in_sentence": "The petitioner's wife thereafter instructed a lawyer to contact the petitioner who in turn tried to get in touch with the petitioner at Wanchiyoor Police Station, but did not succeed."}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 11884, "end_char": 11901, "source": "ner", "metadata": {"in_sentence": "Under these circumstances, the petitioner's wife instructed her advocate to file a writ petition in the Kerala High Court for the production of the petitioner."}}, {"text": "22nd October, 1965", "label": "DATE", "start_char": 11986, "end_char": 12004, "source": "ner", "metadata": {"in_sentence": "Accordingly, a writ petition was filed on the 22nd October, 1965."}}, {"text": "27th October, 1965", "label": "DATE", "start_char": 12591, "end_char": 12609, "source": "ner", "metadata": {"in_sentence": "In view of the fact that the petition filed by the Advocate in the Kerala High Court under the vague instructions of the petitioner's wife contained a very limited prayer, the petitioner's advocate withdrew the said petition on the 27th October, 1965."}}, {"text": "20th November, 1965", "label": "DATE", "start_char": 12711, "end_char": 12730, "source": "ner", "metadata": {"in_sentence": "B Ultimately, the present petition has been filed in this Court on behalf of the petitioner on the 20th November, 1965."}}, {"text": "Devassy", "label": "OTHER_PERSON", "start_char": 14346, "end_char": 14353, "source": "ner", "metadata": {"in_sentence": "The allegations made in the petition have been controverted by Mr. Devassy who is the Secretary in the Home Department of respondent No."}}, {"text": "SADANANDAN V. KBRALA", "label": "JUDGE", "start_char": 15186, "end_char": 15206, "source": "ner", "metadata": {"in_sentence": "f •\n\nSADANANDAN V. KBRALA (Gajendragadkar, C.J.) 595\n\nchallenged, this Court has consistently recognised the limited scope of the enquiry which is judicially permissible.", "canonical_name": "lilADANANDAN V. KERALA"}}, {"text": "Art. 352", "label": "PROVISION", "start_char": 15927, "end_char": 15935, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Articles 19, 20 and 21", "label": "PROVISION", "start_char": 16205, "end_char": 16227, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Ramamurthi", "label": "OTHER_PERSON", "start_char": 17802, "end_char": 17812, "source": "ner", "metadata": {"in_sentence": "Having heard Mr. Ramamurthi for the petitioner and the learned Additional Solicitor- General for respondent No."}}]}
{"document_id": "1966_3_600_607_EN", "year": 1966, "text": "~00\n\nMERVYN COUTillo'DO & ORS.\n\n' COllECTOR OF CUSTOMS, BOMBAY It. ORS.\n\nFebruary 14, 1966.\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J.C. SHAH, s. M.Sll.Rl and v. RAMASWAMI, JJ.j\n\nConstitut/Qn a/ India, Afls. 16(1), )~'Rotational rystem' applied in fl/ling vacancia in the cadres o/ Appraisers and Principal Apprtliler• Ifs\n\nCustoms Department-Fixation of Seniority-validily.\n\nTue petition= who were Appraisers in the Custom. Department ftled\n\na wnt petition under An. 32, cballengmg the validity of the 'rotational system as applied in fixing the seniority of Appraisers and Principal ap- C praisers. Tue system, as laid down in the relC\\ant departmental circulars\n\nwas that vacancies occurring in the cadre of Appraisers were w go alternatively to \"promotecs' and 'direct recruits'.\n\nAccording to the petitioners this resulted in inequality, especially in view of the fact that the number of direct recruits over the years was very low.\n\nPromotion to the grade of Principal Appraisers was from the cadre of Appraisers; only thooc who had scrvocl as Appraisers for five years were entitled to he promoted .to the higher grade.\n\nSince the direct recruits bad to wait for five yeara D Wore they could bec-Ome Principal Appraiser the promotecs below thcm\n\nwho had put in five years as Appriasers became Principal Appraisers.\n\nIn order to ...,., tore the seniority of the direct rei:nW thus loot, the rotallooal\n\nsystem wu applied to the cadre of Principal Appraisers also l.1. ooo vacancy was to go to a promotee and the other to a direct recruit. The pl~ of inequality in violation of Art. 16(1) of the Constitution was raised by the petitioners in respect of this al!10.\n\nHELD : (i) There is no inhent vice in the principle of fixing seniority by rotation in a case wheo a service is composed in fixed proportion of direct recruits and promotees.\n\nAny anomalies that may have resulted .. ac.oount of insufficient recruitment of direct recruits in the pa~ could DOC be a ground for striking down the system itself. [605 B.C, G]\n\nT. Devada:ran v. Union of Ind/a and Ors. (1964} 4 S.C.R. 680 • diluinguisbed.\n\n(ii) The same however, cannot be said when the rotational system i& applied to the recruitment of Principal Appraisers. The source of recruitment for these is one only, namely, the grade of Appraisers. There ia\n\nno question of any quota being reserved from two sources in their case.\n\nIn so far therefore as the Government was doing what it called restor-.. lion of oeoiority of direct recruits in Appraisers grade on their promoliOll to the higher grade it was clearly denying equality of opportunity. [605 C-G]\n\nORIGINAL JURISDICTION : Writ Pclilion No. 97 of 1964.\n\nPetition under Art. 32 of the Conslitution of India for the enforcement of fundamental righls.\n\nVed Vyasa, J. R. Gagrat, B. R. Agarwala and N. K. Puri, for the petitioners.\n\nC. K. Dhtary, Attorney-General, R. Ganapathy lytr and .It N. Sachthey, for respondent no. I.\n\n,. ., :1~ -,\n\nA B. R. L. Iyengar and S. K. Mehta, for respondents Nos. 6 to\n\n\"\"'\"\n\n23.\n\nI. M. Lal, S. K. Mehta and K. L. Mehta, for respondents Nos. , 25 and 27 to 34.\n\nRespondent No. 24 appeared in person.\n\nB The Judgment of the Court was delivered by ' .\n\nWanchoo, J, This petition under Art. 32 of the Constitution by i certain Appraisers in the Customs Department of the Government oflndia is directed against the seniority list prepared in 1963 under the order of the Central Board of Revenue (hereinafter referred to c as the Board). The petitioners contend that the list in question denies them equality of opportunity in matters relating to employment under the State enshrined in Art. 16(1) of the Constitution.\n\nThe system that prevails for recruitment to the post of Appraisers is that 50 per cent is reserved for direct recruits while the remaining 50• per cent is filled up by promotion from subordinates in the Customs\n\n\" D Department. It further appears that seniority is determined in the cadre by the system of rotation, i.e.; the list is arranged in such a way that there is one person from the direct recruits and one from the promotees alternately. The contention of the petitioners is that this sytem bas resulted in discriminatory treatment against them with the consequence that promotees of much longer service in the ' cadre of Appraisers are put in the seniority list below direct recruits E with much shorter service. This, according to the petitioners, offends against equality of opportunity guaranteed under Art. 16(1)' of the Constitution. That is one grievance of the petitioners.\n\nThe other grievance of the petitioners is that in the cadre of Principal Appraisers who are all promoted from Appraisers, there is _,. again discrimination and violation of equality of opportunity ' inasmuch as the same method is followed in the matter of fixation • of seniority of Principal Appraisers, though in this case there is only one source of recruitment i.e., by promotion from the cadre of Appraisers. The petitioners therefore pray that the seniority list prepared in 1963 should be struck down as violative of Art. 16(1) and directions be issued to prepare a fresh seniority list for the cadr•\n\nG of Appraisers. They further pray that in the matter of appointmeni of Principal Appraisers, the system at present being followed in the matter of seniority should be struck down. -\n\nThe petition has been opposed on behalf of the Union. It is ' contended that in a service where recruitment is partly by promotion\n\n~,./ and partly by direct recruitment, the system of fixing seniority by\n\nH rotation is followed and that this is being done in a number of serr vices under the Union. It is urged that there is nothing discrimi-\n\n---; .,\n\nnatory in such a system and there is no denial of equality of opportunity by following the rotational system for determining seniority\n\n602 SUPRBMB COUllT REPORTS\n\n(1966) 3 S.C.R.\n\nin such circumstances. As to the Principal Appraisers, tho case of the Union is that these posts are selection posts and selection is made from the cadre of Appraisers. For this purpose Appraisers with a minimum service of five years are eligible for promotion and there is a probation of two years before they are confirmed. The Union further contends that by the system of rotation which is being followed in the cadre of Principal Appraisers also what happens is that the seniority of a direct recruit in the cadre of Appraisers is restored as on account of five years qualification, adirect recruit cannot be promoted to the post of Principal Appraiser while his junior promo tee in the post of Appraiser gets such promotion.\n\nAccording to the Union, therefore, this system which is given effect to in the cadre of Principal Appraisers merely restores the seniority which a direct recruit had in the cadre of Appraisers. This is the only justification for the system in the matter of seniority in the cadre of Principal Appraisers.\n\nWe shall first consider the question of Appraisers. As far back as 1936, an order was passed by the Board which laid down that recruitment to the Customs Appraisers' Service would be from two sources, i.e. 50 per cent by promotion, 25 per cent directly from experts and 25 per cent by means of a competitive examination or selection by the Public Service Commission. It was also said in the said order that those percentages would be the maximum and the Collectors of Customs would not be bound to recruit upto the maximum particularly in the case of recruitment by promotion.\n\nIn actual practice however this order has been acted upon as if it provides 50 per cent for promotees and 50 per cent for direct recruits, whether they arc experts or come by competitive examination or selection by the Public Service Commission. In 1940, the Government of India issued a circular for the detennination of relative seniority of candidates appointed by direct recruitment and by promotion. In that circular it was stated that \"where in a department two pennanent or quasi permanent vacancies occur, even simultaneously, and the first vacancy is in accordance with the rota tion meant for a direct recruit, the direct recruit will rank in seniority above the promotee el'en though he joined his post after the promotee had been promoted and confinned\". Reliance ha• been placed on behalf of the Union on this circular in the matter of fixation of seniority between direct recruits and promotees in a cadre in which rotational system prevails. The petitioners however rely in reply on a circular issued in June 1949. That circular dealt with the seniority of displaced government servants who had been absorbed temporarily in service under the Central Government. The occasion for that circular was the division of India, and the creation of Pakistan resulting in displacement of a large number of public servants from the area which went to Pakistan.\n\nThat circular provided for a change in the system due to displaced\n\n...._ - • ,\n\n.. i\n\n' 1\n\n~:.\n\n~~· / .j ..\n\ngovernment servants having in most cases lost all their property and having to migrate in difficult circumstances. It was therefore thought fit to give some weightage in the matter of seniority to such persons on compassionate grounds. It was therefore decided that the seniority of persons appointed on permanent or quasi permanent basis before January l, 1944 should not be disturbed, but thereafter displaced persons should be given consideration and their seniority counted on the basis of length of service in the particular grade as well as service in an equivalent grade. \"Service in an equivalent grade\" was defined as service on a rate of pay higher than the minimum of the time scale of the grade concerned. The principle of this circular was also applied to ex-Government servants of Burma appointed under the Central Government and employees of the former Part B States taken over by the Centre as a result of federal financial integration. Naturally as this change could not be applied only to displaced persons etc., it was applied to the existing government servants of the Government of India also from January l, 1944. But there is nothing in the circular to show that the seniority of the existing government servants inter se was to be disturbed on the basis of this circular. The real purpose of this circular appears to be to fix seniority for displaced persons etc., in accordance with it and for that purpose it applied the same principle to the existing central government servants from January 1, 1944.\n\nIt appears that by 1959, the circular of 1949 for absorption of displaced government servants etc., had worked itself out. Therefore, on December 12, 1959, the Government of India issued another circular containing general principles for determining seniority of various categories of persons employed in central services. By this circular, the circular of 1949 and certain other circulars issued to deal with special types of recruitment like war service candidates were cancelled, and thereafter seniority was to be determined by the circular of 1959, which states that instructions contained in the said circulars had achieved their object and there was no longer any reason to apply those instructions in preference to the normal principles for determining seniority in future. For the future certain general principles were laid down for fixing the seniority in the circular of 1959. These principles were not to apply retrospectively but were given effect to from the date of their issue, subject to certain reservations with which we are not concerned.\n\nOne of the principles in this circular of 1959 is with respect to relative seniority of direct recruits and promotees. It provides that relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of reservation for direct recruitment and promotion respectively in the recruitment rules.\n\nIt was further explained that a roster should be maintained based on the reservation for direct recruitment and promotion in the recruitment rules. Where, for example, the reservation for each method i5 50 per cent, the roster will run as follows-(1) promotion, (2) direct recruitment, (3) promotion, (4) direct recruitment, and so on.\n\nAppointments should be made in accordance with this roster and seniority determined accordingly. A question has been raised whether the circular of 1940 to which we have already referred survived after this circular of 1959; but in our opinion it is unnecessary to decide that question, for the circular of 1959 itself lays down that seniority shall be determined accordingly, i.e. in accordance with the rotational system, depending upon the quota reserved for direct recruitment and promotion respectively. It is this circular which according to the respondent has been followed in determining the seniority of Appraisers in 1963.\n\nBefore we come to what has been done in 1963 in the matter of fixing seniority of Appraisers, we may refer to two other circulars.\n\nThe first is a circular of the Board issued in 1953. That circular in our opinion has nothing to do with the question of fixing of seniority as between direct recruits and promotees. Its main value is that it emphasises that the proportion fixed for direct recruits and promotees should be rigidly maintained. It also directs that promotion to higher grades should be made on the basis of a combined seniority list of both direct recruits and promotees. Then there is another circular of 1955. That circular again emphasises the rotational system and says that it has been decided that \"inter se seniority of direct recruits and promotecs in the grade of Appraisers should be determined in the order in which the vacancy in that grade is filled by a direct recruit or by a promotee according to the quota fixed for such appointments\". Stress has been laid on behalf of the petitioners on the words \"is filled\" in this circular, and it is urged that this means that until the direct recruit is actually recruited and fills the vacancy meant for a direct recruit he cannot get seniority from before the date he fills the vacancy merely on the ground of rotational system of fixing seniority. We do not think that this is the meaning of the words \"is filled\" used in this circular. We have already said that this circular also emphasises the rotational system in the matter of fixing of seniority and all that it means is that vacancies should be filled either by direct recruits or by promotees according to the quota fixed for such appointments.\n\nThis brings us back to the circular of 1959, and the main question in that connection is the meaning to be assigned to the words \"seniority determined accordingly\", in the e:tplanation to principle 6 relating to relative seniority of direct recruit~ and promotees. As we read these words, their plain meaning is that seniority as between direct recruits and promotees should be determined in accordance with the roster, which has also been specified, namely, one promotee followed by one direct recruit and so on.\n\nWhere therefore recruitment to a cadre is from two sources, namely,\n\nfrom year to year. This is very different from a case where a service A is divided into two parts and there are two sources of recruitment, one of promotion and the other by direct recruitment. In such a case, the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the matter of annual intake. The basis on which the carry-forward rule was struck down by this Court does not therefore B apply to a case where the whole cadre of a service is divided in certain fixed proportions between promotees and direct recruits. The petitioners therefore can get no assistance from Devdasa11's cau.(I) The petition must therefore fail so far as seniority of Appraisers is concerned.\n\nThis brings us to the question of Principal Appraisers. We are of opinion that the petitioners have a legitimate grievance in this respect. The source of recniitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is therefore no question of any quota being reserved from two sources in their cases. The rotational system cannot therefore apply when there is only one source of recruitment and not two sources of recruitment.\n\nIn a case therefore where thcrcis only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed In the higher grade after the period of probation is over. In such a case it is continuous appointmcntin the higher grade which determines seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade.\n\nIn so far therefore as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers' grade when they are promoted to the Principal Appraisers' grade, it is clearly denying equality of opportunity to Appraisers which is the only source of recruitment to the Principal Appraisers' grade. There is only one source from which the Principal Appraisers are drawn, namely, Appraisers, the promotion being by selection and five years' experience as Appraiser is the minimum qualification. Subject to the above all Appraisers selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers' grade subject of course to the right of government to revert any of them who have not been found fit during the period of probation.\n\nBut if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they arc promotees or direct recruits. The present method by which the respondent puts a direct recruit from the grade of Appraiser, though he is promoted later, above a promotee\n\n(I) (1964) 4 S.C.R. 680.\n\nwho is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely, from the grade of Appraisers. In such a case the seniority in th!:\" grade of Principal Appraisers must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers' grade is a direct recruit or a promotee. This will as we have already said be subject to the government's right to revert any one promoted as a Principal Appraiser if he is not found fit for the post during the period of probation. The petition therefore will have to be allowed with respect to the method by which seniority is fixed in the grade of Principal Appraisers. That method denies equality of opportunity of employment to the Appraisers who are the only source or recruitment to the grade of Principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions arc made, and that cannot be done when the source of promotion is one.\n\nWe therefore dismiss the petition so far as the seniority of Appraisers is concerned but allow it so far as the seniority of Principal Appraisers is concerned and the method used by the respondent in that connection must be struck down, and we further direct the determination of their seniority in the manner we have stated above. In the circumstances we pass no order as to costs.\n\nPetition allowed in part •.", "total_entities": 33, "entities": [{"text": "COllECTOR OF CUSTOMS, BOMBAY It", "label": "RESPONDENT", "start_char": 34, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "COLLECTOR OF CUSTOMS, BOMBAY & ORS", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 94, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO, J", "label": "JUDGE", "start_char": 122, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 139, "end_char": 146, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "v. RAMASWAMI, JJ", "label": "JUDGE", "start_char": 164, "end_char": 180, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Art. 16(1)", "label": "PROVISION", "start_char": 1588, "end_char": 1598, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 2695, "end_char": 2702, "source": "regex", "metadata": {"statute": null}}, {"text": "Ved Vyasa", "label": "JUDGE", "start_char": 2776, "end_char": 2785, "source": "ner", "metadata": {"in_sentence": "Ved Vyasa, J. R. Gagrat, B. R. Agarwala and N. K. Puri, for the petitioners."}}, {"text": "J. R. Gagrat", "label": "LAWYER", "start_char": 2787, "end_char": 2799, "source": "ner", "metadata": {"in_sentence": "Ved Vyasa, J. R. Gagrat, B. R. Agarwala and N. K. Puri, for the petitioners."}}, {"text": "B. R. Agarwala", "label": "LAWYER", "start_char": 2801, "end_char": 2815, "source": "ner", "metadata": {"in_sentence": "Ved Vyasa, J. R. Gagrat, B. R. Agarwala and N. K. Puri, for the petitioners."}}, {"text": "N. K. Puri", "label": "LAWYER", "start_char": 2820, "end_char": 2830, "source": "ner", "metadata": {"in_sentence": "Ved Vyasa, J. R. Gagrat, B. R. Agarwala and N. K. Puri, for the petitioners."}}, {"text": "C. K. Dhtary", "label": "LAWYER", "start_char": 2854, "end_char": 2866, "source": "ner", "metadata": {"in_sentence": "C. K. Dhtary, Attorney-General, R. Ganapathy lytr and .It N. Sachthey, for respondent no."}}, {"text": "N. Sachthey", "label": "LAWYER", "start_char": 2912, "end_char": 2923, "source": "ner", "metadata": {"in_sentence": "C. K. Dhtary, Attorney-General, R. Ganapathy lytr and .It N. Sachthey, for respondent no."}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 2964, "end_char": 2980, "source": "ner", "metadata": {"in_sentence": "1~ -,\n\nA B. R. L. Iyengar and S. K. Mehta, for respondents Nos."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 2985, "end_char": 2996, "source": "ner", "metadata": {"in_sentence": "1~ -,\n\nA B. R. L. Iyengar and S. K. Mehta, for respondents Nos."}}, {"text": "I. M. Lal", "label": "RESPONDENT", "start_char": 3036, "end_char": 3045, "source": "ner", "metadata": {"in_sentence": "I. M. Lal, S. K. Mehta and K. L. Mehta, for respondents Nos. ,"}}, {"text": "K. L. Mehta", "label": "LAWYER", "start_char": 3063, "end_char": 3074, "source": "ner", "metadata": {"in_sentence": "I. M. Lal, S. K. Mehta and K. L. Mehta, for respondents Nos. ,"}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 3206, "end_char": 3213, "source": "ner", "metadata": {"in_sentence": "Wanchoo, J, This petition under Art."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 3238, "end_char": 3245, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 16(1)", "label": "PROVISION", "start_char": 3637, "end_char": 3647, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 16(1)", "label": "PROVISION", "start_char": 4486, "end_char": 4496, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 16(1)", "label": "PROVISION", "start_char": 5086, "end_char": 5096, "source": "regex", "metadata": {"statute": null}}, {"text": "Public Service Commission", "label": "ORG", "start_char": 7267, "end_char": 7292, "source": "ner", "metadata": {"in_sentence": "As far back as 1936, an order was passed by the Board which laid down that recruitment to the Customs Appraisers' Service would be from two sources, i.e. 50 per cent by promotion, 25 per cent directly from experts and 25 per cent by means of a competitive examination or selection by the Public Service Commission."}}, {"text": "Government of India", "label": "ORG", "start_char": 7764, "end_char": 7783, "source": "ner", "metadata": {"in_sentence": "In 1940, the Government of India issued a circular for the detennination of relative seniority of candidates appointed by direct recruitment and by promotion."}}, {"text": "Central Government", "label": "ORG", "start_char": 8662, "end_char": 8680, "source": "ner", "metadata": {"in_sentence": "That circular dealt with the seniority of displaced government servants who had been absorbed temporarily in service under the Central Government."}}, {"text": "India", "label": "GPE", "start_char": 8733, "end_char": 8738, "source": "ner", "metadata": {"in_sentence": "The occasion for that circular was the division of India, and the creation of Pakistan resulting in displacement of a large number of public servants from the area which went to Pakistan."}}, {"text": "Pakistan", "label": "GPE", "start_char": 8760, "end_char": 8768, "source": "ner", "metadata": {"in_sentence": "The occasion for that circular was the division of India, and the creation of Pakistan resulting in displacement of a large number of public servants from the area which went to Pakistan."}}, {"text": "January l, 1944", "label": "DATE", "start_char": 9327, "end_char": 9342, "source": "ner", "metadata": {"in_sentence": "It was therefore decided that the seniority of persons appointed on permanent or quasi permanent basis before January l, 1944 should not be disturbed, but thereafter displaced persons should be given consideration and their seniority counted on the basis of length of service in the particular grade as well as service in an equivalent grade. \""}}, {"text": "Burma", "label": "GPE", "start_char": 9776, "end_char": 9781, "source": "ner", "metadata": {"in_sentence": "The principle of this circular was also applied to ex-Government servants of Burma appointed under the Central Government and employees of the former Part B States taken over by the Centre as a result of federal financial integration."}}, {"text": "January 1, 1944", "label": "DATE", "start_char": 10492, "end_char": 10507, "source": "ner", "metadata": {"in_sentence": "in accordance with it and for that purpose it applied the same principle to the existing central government servants from January 1, 1944."}}, {"text": "December 12, 1959", "label": "DATE", "start_char": 10647, "end_char": 10664, "source": "ner", "metadata": {"in_sentence": "Therefore, on December 12, 1959, the Government of India issued another circular containing general principles for determining seniority of various categories of persons employed in central services."}}, {"text": "Devdasa11", "label": "OTHER_PERSON", "start_char": 15871, "end_char": 15880, "source": "ner", "metadata": {"in_sentence": "The petitioners therefore can get no assistance from Devdasa11's cau.(I) The petition must therefore fail so far as seniority of Appraisers is concerned."}}, {"text": "(1964) 4 S.C.R. 680", "label": "CASE_CITATION", "start_char": 18236, "end_char": 18255, "source": "regex", "metadata": {}}]}
{"document_id": "1966_3_608_612_EN", "year": 1966, "text": "V. M. RV. MR. RAMASWAMI CHEITIAR AND ANR.\n\nl'.\n\nR. MUTIIUKRISHNA IYER AND OTHERS .\n\nFebruary 16, 1966\n\n[K. SUBBA RAO AND V. RAMASWAMI JJ.]\n\nIndemnity and guarantee-Sale of land by one having a voidable till• ancl puuing purchaser in posession-Agreenient to indemniry purcha.ser-\n\nSale sec aside al the instance of person, entitled to avold-Nt> disposjeS slon of purcharer-Enforceabiliry of indemnity bond.\n\nThe second defendant sold property belonging to himself and his minor .on the third defendant. and also executed an indemnity bond in favour\n\nof the vendee agreeing to indemnify him for any loss that might be caused C to him in case the sale of the third defendant's half share should later on be set aside. The vendee sold the property to the plaintiffs and assianed the indemnity bond in their favour and the plaintiffs took possession of tho propeny.\n\nThe third defendant, after attaining majority, sued for settinJ1 aside the sale in respect of his half share and for partition. The plaintiffs contested the suit but the third defendant's suit was decreed.\n\nHe, however, did not dispossess the plaintifis.\n\nMeanwhile, a creditor of the third defendant obtained a money decree against him and in execution D tllereof attached and brought to sale the third defendant's half share, and, the brother-in-law of the plaintiffs purchased the property, hut the plaintiffs continued in possession of the property.\n\nThe plaintiffs, thereafter, filed the suit for recovery of half the consideration paid by them, on the allegation that they sustained damage by the lo~•\n\nof one half of the prop<>rty bought by them, and that they were entitled to recover damages from the second defendant. The suit was conte>ted on the ground that the court sale in favour of the brothers-in-law of the E plaintiffs was benami for the plaintiffs, and that as the plaintiffs never lost\n\nownership or possession of the halfshare. they did not sustain any loss. lbe trial court decreed the suit.\n\nThe High Court, on appeal, confined the de<:ree to the actual loss sustained, namely, tho amount for the court •ale and the amount spent for the defence of the third defendant's suit.\n\nIn appeal to the Court, on the question of the quantum of damages to which the plainti1fs were entitled, r HELD : High Court was right in granting a decree to the plaintiffs only for the rum whiah was the actual loss sustained by them.\n\nThe sale of the half share of the third defendant was not void ab initio but was only voidable. In such a caoe the indemnity bond becomes enforceable only if the vendee is disposscsed from the properties, hccausc, a broach of the covenant can only occur on the diaturbancc or the vendee\"s pQISea.<ion.\n\nSo long as tho vendee remains in on. he suffers no G loss and no suit can be brought for damage. either on the basis of the indemnity bond or for the broach of a convcnant of the warranty of title.\n\n[610 H-611 BJ\n\nSubbaroya Reddiar v. Ra; agopala Reddiar, (1915) IL R. 38 Mad. 887 Muhammad Siddiq v. Muhammad Nuh, J.L.R. 52 All. 604 ond Gulabchand Daularram v. Suryaji Rao Ganpatrao, A.l.R. 1950 Born. 401, approved.\n\nCIVIL APPELLATE JURISDICTJO'S: Civil Appeal No. 7 of 1964.\n\nH Anneal from the judgment and decree dated January 7, I 955 of the Madras High Court in Appeal Suit No. 371 of 1959.\n\n. i\n\n\"\"'Ji.\n\nCHETTIAR v. IYER (Ramaswami, /.) 609\n\nR. Ganapathy Iyer and R. Thiagarajan, for appellants.\n\nM. S. K. Sastri and M. S. Narasimhan, for respondent No. 2\n\nThe Judgment of the Court was delivered by\n\nRamaswami. J. In the suit which is thesubject-matter of this appeal the plaintiffs alleged that Plaint 'A' Schedule properties belonged to the second defendant and his son, the third defendan~.\n\nThe second defendant sold the village for Rs. 28,000/· to one Swanunatha Sarma by a sale deed Ex. A dated December 12, 1912 which he executed for himself and as guardian of the third defendant who was then a minor. The second defendant also agreed to indemnify any loss that might be caused to his vendee in case the sale of his minor son's half share should later on be set aside. Accordingly the second defendant executed the Indemnity Bond-Ex.\n\nB in favour of Swaminatha Sarma. The sons of Swaminatha Sarma sold Plaint 'A' Schedule village to the father of the Plaintiffs for a sum of Rs. 53,000/-. On the same date they assigned the Indemnity Bond-Ex. B to the father of the plaintiffs under an Assignment Deed-Ex. D. The third defendant after attaining majority filed O.S. no. 640 of 1923 in the Chief Court of Pudukottai for setting aside the sale deed_::._Ex. A in respect of his share and for partition of joint family properties. The plaintiffs were impleaded as defendants 108 and 109 in that suit. The suit was decreed in favour of the third defendant and the sale of his share was set aside on condition of his paying a sum of Rs. 7,000/· to defendants\n\n108 and 109, and a preliminary decree for partition was also granted. In further proceedings, the village was divided by metes and bounds and a final decree-Ex. F was passed on October 6, 1936.\n\nMeanwhile, a creditor of the third defendant obtained a money decree and in execution thereof, attached and brought to sale the third defendant's half-share in the 'A' Schedule village. In the auction-sale Subbaiah Chettiar, the plaintiff's brother-in-law purchased the property for a sum of Rs. 736/- subject to the liability for payment of Rs. 7,000/- under the decree in O.S. no. 640 of\n\n1923. Thereafter, the plaintiffs have brought the present suit on the allegation that they have sustained damage by the loss of one half of the 'A' Schedule village and are entitled to recover the same from the second defendant personally and out of the 'B' Schedule properties. The plaintiffs have claimed damages to the extent of half of the consideration for the sale deed-Ex. C. minus Rs. 7,000/-withdrawn by them. The plaintiffs claimed a further sum of Rs. 500/- as Court expenses making a total of Rs. 20,000. The suit was contested on the ground that the Court sale in favour of Subbaiah Chettiar was benami for the plaintiffs and the latter never lost ownership or possession of a half-share of the 'A' Schedule village and consequently the plaintiffs did not sustain any loss. The trial court held that Subbaiah Chettiar-P.W. I was benamidar of\n\nthe plaintiffs who continued to remain in possession of the whole village. The trial court was, however, of the opinion that though the plaintiffs had, in fact, purchased the third defendant's halfshare in the Court sale, they were not bound to do so and they could claim damages on the assumption that third parties had purchased the same. The trial court accordingly gave a decree to the plaintiffs for the entire amount claimed and made the payment of the amount as charge on 'B' Schedule properties. The second defendant took the matter in appeal to the Madras High Court which found that the only loss actually sustained by the plaintiffs was the sum of Rs. 736/- paid for the Court sale and the sum of Rs. 500/- spent for the defence of O.S. no. 640 of 1923. The High Court accordingly modified the decree of the trial court and limited the quantum of damages to a sum of Rs. 1236/- and interest at 6 per cent p.a. from the date of the suit.\n\nThe question presented for determination in this appeal iswhat is the quantum of damages to which the plaintiffs arc entitled for a breach of warranty of title under the Indemnity Bond-Ex. B dated Decemher 19, 1912.\n\nIt was contended hy Mr. Ganapathy Iyer on behalf of the appellants that in O.S. no. 640 of 1923, defendant no. 3 obtained a partition decree and a declaration that defendant no. 2 was not entitled to alienate his share in the 'A' Schedule properties. It was submitted that on account of this decree the appellants lost title to half-share of 'A' Schedule properties and accordingly the appellants were entitled to get hack half the amount of consideration under the Indemnity Bond-Ex. B. The arugment was stressed on behalf of the appellants that the circumstance that the plaintiffs had a title of benamidar to the half-share of the third defendant in Court auction, was not a relevant factor so far as the claim for damages was concerned. It was suggested that the purchase in court auction was an independent transaction and the defendants wuld not take the benefit of that transaction. We are unable to accept the contention of the appellants as correct. In the present case it should he observed, in the first place, that the Indemnity Bond--Ex. B states that defendant no. 2 shall be liable to pay the amount of loss \"in case the sale of the share of the said minor son- Chidambaram-· is sci aside and you arc made to sustain any loss\".\n\nIn the second place, it is important to notice that the sale deed-Ex.\n\nA executed by the second defendant in favour of Swaminatha Sarma was only voidahle with regard to the share of the third defendant and the family properties. The sale of the half-share of defendant no. 3 was not void ab initio but it was only voidable if defendant no. 3 chose to avoid it and proved in Court that the alienation was not for legal necessity. In a case of this description the Indemnity Bond becomes enforceable only if the vendee is dispossessed from the properties in dispute. A breach of the\n\nD '\n\nG ,\n\nCHETTJAR v. IYER (Ramaswami, !.) 611\n\nconvenant can only occur on the disturbance of the vendee's possession and so long as the vendee remains in possession, he suffers no loss and no suit can be brought for damages either on the basis of the Indemnity Bond or for the breach of a convenant of the warranty of title. The view that we have expressed is borne out by the decision of the Madras High Court in Subbaroya Reddiar v. Rajagopala Reddiar (') in which A who had a title to certain immovable property, voidable at the option of C, sold it to Band put Bin possession thereof. C then brought a suit against A and B, got a decree and obtained possession thereof in execution. In this state of facts it was held by Seshagiri Ayyar, J, that B's cause of action for the return of the purchase money arose not on the date of the sale but on the date of his dispossession when alone there was a failure of consideration and the article applicable was article 97 of the Limitation Act. At page 889 of the Report Seshagiri Ayyar, J. states:\n\n\"These cases can roughly speaking be classified under three heads: (a) where from the inception the vendor had no title to convey and the vendee has not been put in possession of the property; (b) where the sale is only voidable on the objection of third parties and possession is taken under the voidable sale; and (c) where though the title is known to be imperfect, the contract is in part carrried out by giving possession of the properties. In the first class of cases, the starting point of limitation will be the .date of the sale. That is Mr. Justice Bakewell's view in [Ramanatha Iyer v. Ozhapoor Pathiriseri Raman Namburdripad (1913) 14 M.L.T. 524]; and I do not think Mr. Justice Miller dissents from it. However, the present case is quite different. In the second class of cases the cause of action can arise only when it is found that there is no good title.\n\nThe party is in possession and that is what at the outset under a contract of sale a purchaser is entitled to, and so long as his possession is not disturbed, he is not damnified.\n\nThe cause of action will therefore arise when his right to continue in possession is disturbed. The decisions of the Judicial Committee of the Privy Council in Hanuman Kamat v. HanumanMandur (1892) I.L.R. 19 Cal. 123 (P.C.) and in Bassu Kuar v. Dhum Singh (1889) I.L.R. 11 All. 47 (P.C.) are authorities for this position.\" A similar view has been expressed by the Allahabad High Court in .Muhammad Siddiq v. .Muhammad Nuh (2) and the Bombay High Court in Gulabchand Daulatram v. Survajirao Ganpatrao.(') In the present case it has been found by the High Court that P.W.\n\n1, the auction-purchaser was the brother-in-law of the plaintiffs\n\n(I) I.LR. 38 Mad. 887.\n\n(2) I.LR. 52 All. 604.\n\n(3) A.l.R. 1950 Born. 401.\n\nand that he was managing the estate of the plaintiffs and defending 0.S. 640 of 1923 on their behalf. It has also been found that P. W. I did not take possession at any time and plaintiffs have been cultivating and enjoying the whole village all along and at no time were the plaintiffs dispossessed of the property. The only loss sustained by the plaintiffs was a sum of Rs. 736/- paid at the Court sale and a sum of Rs. 500/- spent for the defence of 0.S. no. 640 of 1923 which the plaintiffs had to incur for protecting the continuance of their possession over the disputed share of land.\n\nAccordingly the High Court was right in granting a decree to the plaintiffs only for a sum of Rs. 1236/- which was the actual loss sustained by them and they are not entitled to any further amount.\n\nFor these reasons we hold that there is no merit in this appeal which is dismissed with costs.\n\nAppeal dismissed.", "total_entities": 27, "entities": [{"text": "V. M. RV. MR. RAMASWAMI CHEITIAR AND ANR", "label": "PETITIONER", "start_char": 0, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "V. M. RV. MR. RAMASWAMI CHEITIAR AND ANR", "offset_not_found": false}}, {"text": "R. MUTIIUKRISHNA IYER AND OTHERS", "label": "RESPONDENT", "start_char": 48, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "R. MUTHUKRISHNA IYER AND OTHERS", "offset_not_found": false}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 104, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "CIVIL APPELLATE JURISDICTJO", "label": "PETITIONER", "start_char": 3121, "end_char": 3148, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTJO'S: Civil Appeal No."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 3351, "end_char": 3368, "source": "ner", "metadata": {"in_sentence": "CHETTIAR v. IYER (Ramaswami, /.) 609\n\nR. Ganapathy Iyer and R. Thiagarajan, for appellants."}}, {"text": "R. Thiagarajan", "label": "LAWYER", "start_char": 3373, "end_char": 3387, "source": "ner", "metadata": {"in_sentence": "CHETTIAR v. IYER (Ramaswami, /.) 609\n\nR. Ganapathy Iyer and R. Thiagarajan, for appellants."}}, {"text": "M. S. K. Sastri", "label": "LAWYER", "start_char": 3406, "end_char": 3421, "source": "ner", "metadata": {"in_sentence": "M. S. K. Sastri and M. S. Narasimhan, for respondent No."}}, {"text": "M. S. Narasimhan", "label": "LAWYER", "start_char": 3426, "end_char": 3442, "source": "ner", "metadata": {"in_sentence": "M. S. K. Sastri and M. S. Narasimhan, for respondent No."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 3510, "end_char": 3519, "source": "ner", "metadata": {"in_sentence": "2\n\nThe Judgment of the Court was delivered by\n\nRamaswami."}}, {"text": "Swanunatha Sarma", "label": "OTHER_PERSON", "start_char": 3767, "end_char": 3783, "source": "ner", "metadata": {"in_sentence": "28,000/· to one Swanunatha Sarma by a sale deed Ex.", "canonical_name": "Swanunatha Sarma"}}, {"text": "Swaminatha Sarma", "label": "OTHER_PERSON", "start_char": 4168, "end_char": 4184, "source": "ner", "metadata": {"in_sentence": "B in favour of Swaminatha Sarma.", "canonical_name": "Swanunatha Sarma"}}, {"text": "Chief Court of Pudukottai", "label": "COURT", "start_char": 4506, "end_char": 4531, "source": "ner", "metadata": {"in_sentence": "640 of 1923 in the Chief Court of Pudukottai for setting aside the sale deed::.Ex."}}, {"text": "October 6, 1936", "label": "DATE", "start_char": 5048, "end_char": 5063, "source": "ner", "metadata": {"in_sentence": "F was passed on October 6, 1936."}}, {"text": "Subbaiah Chettiar", "label": "OTHER_PERSON", "start_char": 5272, "end_char": 5289, "source": "ner", "metadata": {"in_sentence": "In the auction-sale Subbaiah Chettiar, the plaintiff's brother-in-law purchased the property for a sum of Rs."}}, {"text": "Subbaiah Chettiar", "label": "WITNESS", "start_char": 6270, "end_char": 6287, "source": "ner", "metadata": {"in_sentence": "The trial court held that Subbaiah Chettiar-P.W. I was benamidar of\n\nthe plaintiffs who continued to remain in possession of the whole village."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 6871, "end_char": 6888, "source": "ner", "metadata": {"in_sentence": "The second defendant took the matter in appeal to the Madras High Court which found that the only loss actually sustained by the plaintiffs was the sum of Rs."}}, {"text": "Decemher 19, 1912", "label": "DATE", "start_char": 7459, "end_char": 7476, "source": "ner", "metadata": {"in_sentence": "B dated Decemher 19, 1912."}}, {"text": "Ganapathy Iyer", "label": "OTHER_PERSON", "start_char": 7503, "end_char": 7517, "source": "ner", "metadata": {"in_sentence": "It was contended hy Mr. Ganapathy Iyer on behalf of the appellants that in O.S. no."}}, {"text": "Chidambaram-", "label": "OTHER_PERSON", "start_char": 8656, "end_char": 8668, "source": "ner", "metadata": {"in_sentence": "2 shall be liable to pay the amount of loss \"in case the sale of the share of the said minor son- Chidambaram-· is sci aside and you arc made to sustain any loss\"."}}, {"text": "Seshagiri Ayyar", "label": "JUDGE", "start_char": 10032, "end_char": 10047, "source": "ner", "metadata": {"in_sentence": "In this state of facts it was held by Seshagiri Ayyar, J, that B's cause of action for the return of the purchase money arose not on the date of the sale but on the date of his dispossession when alone there was a failure of consideration and the article applicable was article 97 of the Limitation Act."}}, {"text": "article 97", "label": "PROVISION", "start_char": 10264, "end_char": 10274, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 10282, "end_char": 10296, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bakewell", "label": "JUDGE", "start_char": 10912, "end_char": 10920, "source": "ner", "metadata": {"in_sentence": "That is Mr. Justice Bakewell's view in [Ramanatha Iyer v. Ozhapoor Pathiriseri Raman Namburdripad (1913) 14 M.L.T. 524]; and I do not think Mr. Justice Miller dissents from it."}}, {"text": "Miller", "label": "JUDGE", "start_char": 11044, "end_char": 11050, "source": "ner", "metadata": {"in_sentence": "That is Mr. Justice Bakewell's view in [Ramanatha Iyer v. Ozhapoor Pathiriseri Raman Namburdripad (1913) 14 M.L.T. 524]; and I do not think Mr. Justice Miller dissents from it."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 11772, "end_char": 11792, "source": "ner", "metadata": {"in_sentence": "A similar view has been expressed by the Allahabad High Court in .Muhammad Siddiq v. .Muhammad Nuh (2) and the Bombay High Court in Gulabchand Daulatram v. Survajirao Ganpatrao.(')"}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 11842, "end_char": 11859, "source": "ner", "metadata": {"in_sentence": "A similar view has been expressed by the Allahabad High Court in .Muhammad Siddiq v. .Muhammad Nuh (2) and the Bombay High Court in Gulabchand Daulatram v. Survajirao Ganpatrao.(')"}}, {"text": "S. 640", "label": "PROVISION", "start_char": 12192, "end_char": 12198, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_613_616_EN", "year": 1966, "text": "G ,\n\nSTATE OF GUJARAT\n\nJAGANBHAIBHAGWANBHAI\n\nFebruary 16, 1966.\n\n[K. SUBBA RAO AND V. RAMASWAMI, JJ.]\n\nBombay Prevention of Gambling Act, 1887 (Born. 4 of 1887), ss. 3 & 7-N ecessity of expert to prove articles seized whether ''instruments of ganiing\"-Evidence of officer to whom warrant issued-Corroboration ii necessary.\n\nThe respondent was charged under ss. 4 and 5 of the Bombay Prevention of Gambling Act, on the allegation that ha was found accepting bets on American futures, and on being searched currency notes and two slips, on which American Futures were recorded, were found. The trial Magistrate acquitted the respondent, which was confirmed, on appeal, by the High Court. In appeal to this Court the appellant-State contended that it was not necessary to examine an expert to corroborate the evidence of the prosecuting sub-Inspector that the articles seized were \"instruments\n\nof gaming\" and that the ll\\idence of the Police Inspector to whom the warrant was issued under s. 6 of the Act did not require corroboration in each and every case.\n\nHELD : The contentions are well founded and must be accepted as correct.\n\nThere is nothing in the Act to suggest that in order to prove that the articles seized are \"instruments of gaming\" it is the duty of the prosecution to examine an expert in every case.\n\nIt is open to the prosecution to prove that the articles seized are instruments of gaming by proper evi~ dence and it is not necessary to examine an expert for the purpose in each and every case.\n\nIt is also not proper to make a distinction be.tween the evidence of -an officer who makes a complaint under the proviso to s. 6 of the Act and to whom a wanrant issued for search and the evidence of a person to whom a warrant is issued but who makes no such complaint under the proviso.\n\nThe question as to whether the .,,-idence of the person who executes the warrant requires corroboration depends on the facts and circumstances of each case and no legal distinction can be made merely because the pern who executes the warrant happens to be the person who make• the complaint under the proviso to s. 6 of the Act to the Commissioner of Police or to the Magistrate. [616 A-CJ\n\nCRIMINAL\n\nAPPELLATE\n\nJURISDICTION: Criminal Appeal No. 167 of 1964.\n\nAppeal from the judgment and order November 4, 1963 of the Gujarat High Court in Criminal Appeal No. 734 of 1962.\n\nG. S. Patwardhan, R. N. Sachthey and B.R.G.K. Achar, for the appellant.\n\nThe respondent did not appear.\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. ll1is appeal is brought by the State of Gujarat against the judgment of the High Court of Gujarat at Ahmeda- .bad dated November 4, 1963 in Criminal Appeal No. 734 of 1962.\n\nThe respondent was charged in the Court of the Judicial Magistrate First Class, Bulsar under ss. 4 and 5 of the Bombay Preven- B lion of Gambling Act, 1887 (Bombay Act IV of 1887), hereinafter called the 'Act'. The case of the prosecution was that on January 31, 1962 at about 9 p.m. the respondent was found accepting bets on American futures.\n\nOn being searched in the presence of panchas currency notes of Rs. 119/- and two slips on which American futures were recorded were found.\n\nThe trying Magistrate, C however, held that slips \\Vere not \"instruments of gaming\" within the meaning of s. 7 of the Act. The Magistrate was also not satisfied that the police officer who carried out the search and seized the articles had reasonable grounds to believe that the slips and other articles recovered from the respondent were instruments of gaming. The Magistrate held that the presumption under s. 7 of the Act could not be raised. The respondent was, D therefore, acquitted <>f the charge. Against the onkr of acquittal the State of Gujarat preferred an appeal to the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 734 of 1962. The appeal was dismissed hy Raju, J. on November 4, 1963.\n\nIn support of this appeal '-'Ir. Patwardhan submitted that the High Court was in error in holding that it is necessary to examine an expert to corroborate the evidence of the prosecuting Sub- Inspector that the articles seized were \"instruments of gaming\".\n\nIt was also contended by Counsel that the High Court was not right in taking the view that the evidence of the Police Inspector to whom the warrant was issued under s. 6 of the Act required corrob\"ration in each and e\\ery case.\n\nIn our opinion, both the contentions of Mr. Patwardhan arc well-founded am! must he\n\naccepted as correct.\n\nSection 3 of the Act defines the expression \"instruments of gaming\" as including any article used or intended to be used as a subject or means of gaming, any document used or intended to be used as a register or rcc\"rd or evidence of any gaming, the proceeds of any gaming, and any winnings or prizes in money or -otherwise distributed or intended to he distributed in respect of any gaming. Section 6 provides for entry and search by 1wlicc <ifficers in gaming houses.\n\nSection 6( I) states:\n\n\"6. (I) It shall be lawful for a Police Ofliccr-\n\n(i) in :my area for which a Commissioner of Police has heen appointed not below the rank of a Sub-Inspector and either empowered by general order in writing or\n\nG • H\n\nGUJARAT v. BHAGWANBHAI (Ramaswami, J.) '615\n\nauthorized in each case by special warrant issued by the Commissioner of Police, and\n\n. (ii). elsewhe}'e not i)elow the rank of a Sub-Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub-Divisional Magistrate or by a Taluka Magistrate specially empowered by the State Government in this behalf or by a Superintendent of Police or by an Assistant or Deputy Superintendent of Police especially empowered by the State Government in this behalf, and\n\n(iii) without prejudice to the provision in clause (ii) above, in such other area as the State Government may, by notification in the Official Gazette, specify in this behalf, not below the rank of a Sub-Inspector and empowered by general order in writing issued by the District Magistrate.\n\n(a) to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, any house, room or place which he has reason to suspect is used as a common gaming-house.\n\n(b) to search all parts of the house, room, or place which he shall have so entered, when he shall have reason to suspect that any instuments of gaming are concealed therein, and also the persons whom he shall find therein whether such persons are then actually gaming or not,\n\n(c) to take into custody and bring before a Magistrate all such persons,\n\n( d) to seize all things which are reasonably suspected to have been used or intended to be used for the purpose of gaming, and which are found therein:\n\nSection 7 of the Act relates to presumptive proof of keeping or gaming in common gaming-house. Section 7 provides as follows:\n\n\"7. When any instrument of gaming has been seized in any house, room or place entered under section 6 or about the person of any one found therein, and in the case of any other thing so seized if the court is satisfied that the Police officer who entered such house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming-house and the persons found therein were then present for the purpose of gaming, although no gaming was actually seen\n\nby the Magistrate or the Police officer or by any person act- A ing under the authority of either of them:\n\n• There is nothing in the Act to suggest that in order to prove that the articles seized are \"instruments of gaming\" it is the duty of the prosecution to examine an expert in every case. It is open to the prosecution to prove that the articles seized are instruments of gaming by proper evidence and it is not necessary to examine an expert for the purpose in each and every case. It is also not proper to make a distinction between the evidence of an officer .who makes a complaint under the proviso to s. 6 of the Act and to whom a warrant is issued for search and the evidence of a person to whom a warrant is issued but who makes no such complaint under the proviso. The question as to whether the evidence of the person who executes the warrant requires corroboration depends on the facts and circumstances of each case and no legal distinction can be made merely because the person who executes the warrant happens to be the person who makes the complaint under the proviso to s. 6 of the Act to the Commissioner , of Police or to the Magistrate.\n\nWe do not, however, propose to interfere with the order of acquittal in this case, because the offence is petty and the offence was committed several years back. We accordingly dismiss the appeal.\n\nAppeal dismissed.\n\n. '", "total_entities": 36, "entities": [{"text": "OF GUJARAT\n\nJAGANBHAIBHAGWANBHAI", "label": "RESPONDENT", "start_char": 11, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "JAGANBHAI BHAGWANBHAI", "offset_not_found": false}}, {"text": "February 16, 1966", "label": "DATE", "start_char": 45, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "G ,\n\nSTATE OF GUJARAT\n\nJAGANBHAIBHAGWANBHAI\n\nFebruary 16, 1966."}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 66, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 83, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "V. 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S. Patwardhan", "label": "OTHER_PERSON", "start_char": 2379, "end_char": 2395, "source": "ner", "metadata": {"in_sentence": "G. S. Patwardhan, R. N. Sachthey and B.R.G.K. Achar, for the appellant."}}, {"text": "R. N. Sachthey", "label": "OTHER_PERSON", "start_char": 2397, "end_char": 2411, "source": "ner", "metadata": {"in_sentence": "G. S. Patwardhan, R. N. Sachthey and B.R.G.K. Achar, for the appellant."}}, {"text": "B.R.G.K. Achar", "label": "OTHER_PERSON", "start_char": 2416, "end_char": 2430, "source": "ner", "metadata": {"in_sentence": "G. S. Patwardhan, R. N. Sachthey and B.R.G.K. Achar, for the appellant."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 2528, "end_char": 2537, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. ll1is appeal is brought by the State of Gujarat against the judgment of the High Court of Gujarat at Ahmeda- .bad dated November 4, 1963 in Criminal Appeal No."}}, {"text": "State of Gujarat", "label": "ORG", "start_char": 2573, "end_char": 2589, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. ll1is appeal is brought by the State of Gujarat against the judgment of the High Court of Gujarat at Ahmeda- .bad dated November 4, 1963 in Criminal Appeal No."}}, {"text": "High Court of Gujarat at Ahmeda-", "label": "COURT", "start_char": 2618, "end_char": 2650, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. ll1is appeal is brought by the State of Gujarat against the judgment of the High Court of Gujarat at Ahmeda- .bad dated November 4, 1963 in Criminal Appeal No."}}, {"text": "November 4, 1963", "label": "DATE", "start_char": 2662, "end_char": 2678, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. ll1is appeal is brought by the State of Gujarat against the judgment of the High Court of Gujarat at Ahmeda- .bad dated November 4, 1963 in Criminal Appeal No."}}, {"text": "Judicial Magistrate First Class, Bulsar", "label": "COURT", "start_char": 2763, "end_char": 2802, "source": "ner", "metadata": {"in_sentence": "The respondent was charged in the Court of the Judicial Magistrate First Class, Bulsar under ss."}}, {"text": "ss. 4 and 5", "label": "PROVISION", "start_char": 2809, "end_char": 2820, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Preven- B lion of Gambling Act, 1887", "label": "STATUTE", "start_char": 2828, "end_char": 2871, "source": "regex", "metadata": {}}, {"text": "Bombay Act IV of 1887", "label": "STATUTE", "start_char": 2873, "end_char": 2894, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 3308, "end_char": 3312, "source": "regex", "metadata": {"linked_statute_text": "Bombay Act IV of 1887", "statute": "Bombay Act IV of 1887"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 3611, "end_char": 3615, "source": "regex", "metadata": {"linked_statute_text": "Bombay Act IV of 1887", "statute": "Bombay Act IV of 1887"}}, {"text": "High Court of Gujarat at Ahmedabad", "label": "COURT", "start_char": 3785, "end_char": 3819, "source": "ner", "metadata": {"in_sentence": "Against the onkr of acquittal the State of Gujarat preferred an appeal to the High Court of Gujarat at Ahmedabad in Criminal Appeal No."}}, {"text": "Raju", "label": "JUDGE", "start_char": 3884, "end_char": 3888, "source": "ner", "metadata": {"in_sentence": "The appeal was dismissed hy Raju, J. on November 4, 1963."}}, {"text": "Patwardhan", "label": "OTHER_PERSON", "start_char": 3948, "end_char": 3958, "source": "ner", "metadata": {"in_sentence": "Patwardhan submitted that the High Court was in error in holding that it is necessary to examine an expert to corroborate the evidence of the prosecuting Sub- Inspector that the articles seized were \"instruments of gaming\"."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 4338, "end_char": 4342, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 4509, "end_char": 4518, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 4901, "end_char": 4910, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6( I)", "label": "PROVISION", "start_char": 4980, "end_char": 4993, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 6776, "end_char": 6785, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 6871, "end_char": 6880, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 6995, "end_char": 7004, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 8154, "end_char": 8158, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 8633, "end_char": 8637, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_617_622_EN", "year": 1966, "text": "G ..\n\n• H\n\nABDUL W AHEED KHAN v.\n\nBHA W ANI AND ORS.\n\nFebruary 21, 1966\n\n[K. SUBBA RAO AND V. RAMASWAMI, JJ.]\n\nBhopal State Land Revenue Act (4 of 1932), ss. 71, 89, 93, 95 and 200(1)-Suit based on title-If barred by decision of revenue officer.\n\nThe suit of the appellant as khatedar of the land in dispute, for eject ment of the respondents on the ground that they were shikmi tenants, wM decreed by the Tahsildar under s. 71 of the Bhopal Stato Land Revenue Act 1932.\n\nWithin 12 years of the date of their dispossession the respoi{dents filed the suit against the appellant in the civil court, claiming to be the khatedars and for possession. The lower courts and the High Court held that the decision of the revenue court did not bar the jurisdiction of the civil court on the question of title to the suit land and decreed the suit.\n\nIn appeal to this Court,\n\nHELD: Section 200(1) of the Act, read with ss. 71, 89, 93 and 95, does not exclude the jurisdiction of the civil court to entertain a suit based on title.\n\n[ 621 E-FJ\n\nSection 200(1) bars the civil court from entertaining a suit with respect to any matter which a revenue officer is empowered by the Act to determine. But the question of title is a matter foreign to the scope of s. 71. The Tahsildar is no doubt empowered under s. 93 to decide on any dispute about any entry to be made in the Record of rights showing the persons who are holders of land, but, under s. 95, the effect of such an entry is only to make it a presumptive piece O!f evidllllce in a collateral proceeding such as a suit based on title.\n\nTherefore, it is assumed that such a suit could be filed in spite of a decision under s. 93. The suit was within time under Art. 142, Limitation Act, 1908, and since the High Court and tho lower courts held that the presumption raised by the entry was rebutted by the oral and documentary evidence adduced by the respondent>, tho correctness of the concurrent findings of fact could not be canvassed in the appeal under Art. 136.\n\n(621 B, C; 622 B, CJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1039 of 1963.\n\nAppeal by special leave from the judgment and order dated June 24, 1959 of the Madhya Pradesh High Court iu Civil Second Appeal No. 8 of 1957 .\n\nN. N. Keswani and Urmilla Kapur, for the appellant.\n\nB. Sen, C. L. Sanghi and A. G. Ratnaparkhi, for the respondents.\n\nThe Judgment of the Court as delivered by:\n\nSobba Rao, J. This appeal by special leave raises mainly the question whether a civil court had jurisdiction to entertain the\n\nsui~ filed by the respondents for the recovery of possession of the A plamt-schedulc land and mesnc profits. ~\n\n. l)ie relevant facts may be briefly stated: The respondents, clrummg to be the khatedars of an extent of 57.07 acres of land in Mau.za Banpur, Tahsil Huzur, Western District Bhopal, filed a suit against the appellant on the ground that the latter was in illegal possession thereof.\n\nThe appellant contested the suit mainly S on the ground that he was the khatedar of the said land and that he w:is in possession thereof in that capacity. He also pleaded that his title to the property was declared by the Tahsildar in an application for ejectment filed by him against the respondents under the Bhopal State Land Revenue Act, 1932 (Act No. IV of 1932), hereinafter called the Act, and that the said decision would be a bar to C the maintainability of the suit in a civil court.\n\nThe learned Subordinate Judge, Bhopal, held that the respondents were the khatedars of the suit land and that they had been in possession thereof in that capacity.\n\nHe held that the suit was maintainable in a civil court.\n\nOn appeal, the Additional District Judge agreed with the findings arrived at by the trial court.\n\nOn second appeal to the Madhya Pradesh High Court, Shiv Dayal, J., of that Court, after admitting certain notifications as evidence, came to the same conclusion both on the question of title and on the question of jurisdiction. In the result he dismissed the second appeal.\n\nHence the present appeal by special leave.\n\nMr. Keswani, learned counsel for the appellant, raised before us a number of points; but his arguments may conveniently be crystallized into the following points: (I) whether the decision of the revenue court on the question of title to the suit land bars the jurisdiction of the civil court; (2) whether the concurrent finding given by the lower courts on the question of title was vitiated by an error of law by the courts wrongly throwing the burden of establishing title on the appellant notwithstanding the fact that in the Record of Rights the said land was entered in the name of the appellant; and (3) whether the suit was barred by limitation. The other questions mooted by him were pure questions of fact and, therefore, they need not be noticed.\n\nTo appreciate the first question it is necessary to notice a few facts.\n\nThe appellant as klwtedar of the land in dispute had filed a suit under s. 71 of the Act in the court of the Tahsildar, Tahsil Huzur, Bhopal for the ejcctment of the respondents on the ground that they were his shikmi tenants. The said court held that the appellant was the khatedar of the land in dispute and the respon-\n\n• H\n\ndents were his shikmi tenants. The present contention is that the said decree was given by a court of exclusive jurisdiction and, therefore, the respondents could not reagitate the same subjectmatter in a civil court.\n\nUnder s. 9 of the Code of Civil Procedure, a civil court can entertain a suit of a civil nature except a suit of which its cognizance is either expressly or impliedly barred. It is settled principle that it is for the party who seeks to oust the jurisdiction of a civil court to establish his contention. It is also equally well settled that a statute ousting the jurisdiction of a civil court must be strictly construed.\n\nThe question is whether a suit based on title of a khatedar and for possession is either expressly or by necessary implication barred by the provisions of the Act. The relevant provisions of the Act may now be read: Section 200 (i) Except as otherwise provided in this Act, or in any other enactment for the time being in force no civil court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the Government or any revenue officer is, by this Act, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no civil court shall exercise jurisdiction over any of the following matters : Cls. (a) to (u) No reliance is placed on the matters described in els. (a) to (u) of this section. But it is said that under the other provisions of the Act a revenue officer is empowered to determine, decide or dispose of a question of title of a person to a land as khatedar and, therefore, a suit in a civil court is barred in terms of s. 200(1). The first section relied upon in that context is s. 71, which reads:\n\n\"A shikmi may be ejected by order of the Tahsildar if he fails to vacate land on the termination of his lawful possession or does anything in contravention of his agreement, if any, provided that no ejectment shall take effect before the commencement of the next agricultural year.\" \"Shikmi\" is defined under the Act to mean a person who holds land from an occupant and is or but for a contract, would be liable to pay rent for such land to that occupant, but does not include a mortgagee or a person holding .land directly from Government. \"Occupant\" is defined to mean \"a person who holds land direct from Government or would do so but the right of collecting land revenue having been assigned or relinquished.\" Section 71, therefore, presupposes the existence of a legal relationship of landlord and tenant and enables the occupant to evict his shikmi if he does not comply with one or other of the conditions mentioned therein; it does not comprehend a decision on a question of\n\ntitle. The question of title is a matter foreign to the scope of A s. 71.\n\nIf so, a suit in a civil c0urt for a declarallon of title and possession by a khatadar against a trespasser falls outside the scope of s. 200( I) of the Act.\n\nThe second limb of the contention turns upon a fasciculus of provisions relating to the preparation of the Record of Rights.\n\nThe relevant provisions are as follows: D\n\nSection 89. The Record of rights in each village shall comprise\n\n(I)\n\n(2) a register, to be called the \"register of rights\", showing all persons who arc holders of land and the nature and extent of their interests and the conditions and liabilities, if any, attaching thereto.\n\nSection 92. No entry in the register of rights shall be contrary to the dec-ree or order of a civil court.\n\nSection 93. ([) If any dispute arises about any entry to be made in any document of the record of rights, the Tahsildar or other officer preparing the record shall inquire into it summarily and shall pass such order as he thinks fit.\n\n(2) Such order, if passed with reference to any entry in the register of rights, shall not be subject to appeal, but no such order shall debar any person from establishing any right to land in a civil court, and the civil court may\n\ndir~-ct that the entry relating to the land shall be altered in accordance with its decision.\n\n(3) Any such order, if passed with reference to a record other than the register of rights shall be subject to appeal but shall not be called in question in a civil court, except in so far as any private right, is infringed and then only by a suit instituted within one year from the date on which the contents of the record were announced under section 88.\n\nSection 95. Any entry in the register of rights shall be presumed to he correct until the contrary is proved, and all other entries in the record of rights, subject to any change which may be ordered in appeal, revision or review only or by a ivil court under sub-section (3) of section 93, shall be conclusive evidence of the facts to which they relate.\n\nOn the basis of the said provisions it is argued that under the said provisions the right of a person to hold land shall be entered in the register of rights under s. 89(2) of the Act and a dispute in respect thereof shall be decided by the Tahsildar under s. 93(1) thereof and\n\n' ,. •\n\n.;.•··-\"'-1'~\n\nthat thereafter such an entry shall be rectified only by filing a suit in a civil court in the manner prescribed in s. 93(2) of the Act and that, therefore, the Tahsildar, subject to the statutory suit, has the exclusive jurisdiction to determine or decide the question in regard to the said matter within the meaning of s. 200 of the Act.\n\nThis argument appears to be plausible, but a deeper scrutiny reveals a fallacy. The scope of an entry in regard to the right to hold a land under s. 89(2) of the Act and the decision under s. 93 thereof is disclosed by s. 95. When such an entry is made in the register of rights and is not corrected in the manner prescribed in\n\ni. 93, under s. 95 it shall be presumed to be correct until the contrary is proved. The effect of such an entry, therefore, is only to make it a presumptive piece of evidence in a collateral proceeding: that is to say, in a suit based on title when such an entry is relied upon by one or other of the parties, the court shall presume it to be correct unless the other party rebuts the presumption. Not only s. 95 does not by necessary implication bar a suit but also assumes that in such a suit the correctness of such an entry could be questioned subject to the said presumption.\n\nLearned counsel for the appellant, in support of his contention, relied upon Gokhul Sahu v. Jodu Nundun Roy(1), and Jatindra Nath Chowdhury v. Azizur Rahaman Shana(). Those decisions turned upon provisions which are not in pari materia with those with which we are now concerned. They do not, therefore, throw any light on the construction of the relevant provisions of the Act.\n\nIt is, therefore, clear that s. 200(1) of the Act, read with the said group of sections, does not exclude the jurisdiction of a civil court to entertain a suit based on title.\n\nLearned counsel for the appellant then contended that though the patta was granted in favour of the ancestors of the respondents in the year 1929 it was revoked later on, that under the new settlement of 1935 the appellant's name was recorded in the register of rights, that in subsequent khasras up to 1953 his name continued to be shown as the owner of the suit land and that, therefore, the courts below should have held that the presumption raised by the register of rights in his favour was not rebutted and the plaintiff had failed to prove his title. But a perusal of the judgments of the courts below shows that all the courts, after taking into consideration the entire oral and documentary evidence, came to the conclusion that the respondents had established their title. Indeed, though the High Court rightly pointed out that the finding of fact given by the lower appellate court was conclusive, in view of the insistence of the Advocate in the High Court, it considered the entire documentary and oral evidence over again and came\n\n(I) [1890] I.LR. 17 Cal. 721. (2} A.I.R. 1923 Cal. 433.\n\nMllSup. CI/66-8\n\nto the same conclusion. It also admitted the notifications in A rcapcct of the settlement as fresh evidence and, after considering them, held that they did not disclose that the patta issued in favour of the respondents' ancestors was cancelled. In our view, the High Court should have accepted the finding of the first appellate court and should not have reviewed the evidence over again. The courts in effect held that the said presumption was rebutted by the B oral and documentary evidence adduced by the respondents. We are not, therefore, justified in an appeal under Art. 136 of the Constitution to permit the appellant to canvass the correctness of the said concurrent findings of fact.\n\nThe last argument raises a question of limitation. If, as we haye held, the suit is outside the scope of the Act, the question of C limitation turns upon the provisions of the Indian Limitation Act.\n\nThe suit was originally filed by the respondents for a declaration -0f their title to the suit property, but as they were dispossessed\n\n-0f the land on March 5, 1953, subsequent to the filing of the suit, the plaint was amended on July 24, 1954, praying for delivery of possession. To such a suit Art. 142 of the Limitation Act applies.\n\nD The suit is, therefore, clearly not barred by limitation.\n\nln the result, the appeal fails and is dismissed witn costs.\n\nAppeal dismissed.\n\n- it . ,( .", "total_entities": 60, "entities": [{"text": "H\n\nABDUL W AHEED KHAN", "label": "PETITIONER", "start_char": 8, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "ABDUL WAHEED KHAN", "offset_not_found": false}}, {"text": "BHA W ANI AND ORS", "label": "RESPONDENT", "start_char": 34, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "BHAWANI AND ORS", "offset_not_found": false}}, {"text": "February 21, 1966", "label": "DATE", "start_char": 54, "end_char": 71, "source": "ner", "metadata": {"in_sentence": "February 21, 1966\n\n[K. SUBBA RAO AND V. RAMASWAMI, JJ.]"}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 74, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 91, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Bhopal State Land Revenue Act", "label": "STATUTE", "start_char": 111, "end_char": 140, "source": "regex", "metadata": {}}, {"text": "ss. 71, 89, 93, 95 and 200(1)", "label": "PROVISION", "start_char": 154, "end_char": 183, "source": "regex", "metadata": {"linked_statute_text": "Bhopal State Land Revenue Act", "statute": "Bhopal State Land Revenue Act"}}, {"text": "s. 71", "label": "PROVISION", "start_char": 422, "end_char": 427, "source": "regex", "metadata": {"linked_statute_text": "Bhopal State Land Revenue Act", "statute": "Bhopal State Land Revenue Act"}}, {"text": "Bhopal Stato Land Revenue Act 1932", "label": "STATUTE", "start_char": 435, "end_char": 469, "source": "regex", "metadata": {}}, {"text": "Section 200(1)", "label": "PROVISION", "start_char": 871, "end_char": 885, "source": "regex", "metadata": {"linked_statute_text": "the Bhopal Stato Land Revenue Act 1932", "statute": "the Bhopal Stato Land Revenue Act 1932"}}, {"text": "ss. 71, 89, 93 and 95", "label": "PROVISION", "start_char": 908, "end_char": 929, "source": "regex", "metadata": {"linked_statute_text": "the Bhopal Stato Land Revenue Act 1932", "statute": "the Bhopal Stato Land Revenue Act 1932"}}, {"text": "Section 200(1)", "label": "PROVISION", "start_char": 1033, "end_char": 1047, "source": "regex", "metadata": {"linked_statute_text": "the Bhopal Stato Land Revenue Act 1932", "statute": "the Bhopal Stato Land Revenue Act 1932"}}, {"text": "s. 71", "label": "PROVISION", "start_char": 1245, "end_char": 1250, "source": "regex", "metadata": {"linked_statute_text": "the Bhopal Stato Land Revenue Act 1932", "statute": "the Bhopal Stato Land Revenue Act 1932"}}, {"text": "s. 93", "label": "PROVISION", "start_char": 1294, "end_char": 1299, "source": "regex", "metadata": {"linked_statute_text": "the Bhopal Stato Land Revenue Act 1932", "statute": "the Bhopal Stato Land Revenue Act 1932"}}, {"text": "s. 95", "label": "PROVISION", "start_char": 1432, "end_char": 1437, "source": "regex", "metadata": {"linked_statute_text": "the Bhopal Stato Land Revenue Act 1932", "statute": "the Bhopal Stato Land Revenue Act 1932"}}, {"text": "s. 93", "label": "PROVISION", "start_char": 1666, "end_char": 1671, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 1704, "end_char": 1712, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act, 1908", "label": "STATUTE", "start_char": 1714, "end_char": 1734, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 2000, "end_char": 2008, "source": "regex", "metadata": {"linked_statute_text": "Limitation Act, 1908", "statute": "Limitation Act, 1908"}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 2174, "end_char": 2199, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated June 24, 1959 of the Madhya Pradesh High Court iu Civil Second Appeal No."}}, {"text": "N. N. Keswani", "label": "OTHER_PERSON", "start_char": 2240, "end_char": 2253, "source": "ner", "metadata": {"in_sentence": "N. N. Keswani and Urmilla Kapur, for the appellant."}}, {"text": "Urmilla Kapur", "label": "LAWYER", "start_char": 2258, "end_char": 2271, "source": "ner", "metadata": {"in_sentence": "N. N. Keswani and Urmilla Kapur, for the appellant."}}, {"text": "B. Sen", "label": "OTHER_PERSON", "start_char": 2293, "end_char": 2299, "source": "ner", "metadata": {"in_sentence": "B. Sen, C. L. Sanghi and A. G. Ratnaparkhi, for the respondents."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 2318, "end_char": 2335, "source": "ner", "metadata": {"in_sentence": "B. Sen, C. L. Sanghi and A. G. Ratnaparkhi, for the respondents."}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 2403, "end_char": 2412, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court as delivered by:\n\nSobba Rao, J. This appeal by special leave raises mainly the question whether a civil court had jurisdiction to entertain the\n\nsui~ filed by the respondents for the recovery of possession of the A plamt-schedulc land and mesnc profits."}}, {"text": "Bhopal", "label": "GPE", "start_char": 2817, "end_char": 2823, "source": "ner", "metadata": {"in_sentence": "l)ie relevant facts may be briefly stated: The respondents, clrummg to be the khatedars of an extent of 57.07 acres of land in Mau.za Banpur, Tahsil Huzur, Western District Bhopal, filed a suit against the appellant on the ground that the latter was in illegal possession thereof."}}, {"text": "Subordinate Judge, Bhopal", "label": "COURT", "start_char": 3433, "end_char": 3458, "source": "ner", "metadata": {"in_sentence": "The learned Subordinate Judge, Bhopal, held that the respondents were the khatedars of the suit land and that they had been in possession thereof in that capacity."}}, {"text": "Shiv Dayal", "label": "JUDGE", "start_char": 3793, "end_char": 3803, "source": "ner", "metadata": {"in_sentence": "On second appeal to the Madhya Pradesh High Court, Shiv Dayal, J., of that Court, after admitting certain notifications as evidence, came to the same conclusion both on the question of title and on the question of jurisdiction."}}, {"text": "Keswani", "label": "OTHER_PERSON", "start_char": 4065, "end_char": 4072, "source": "ner", "metadata": {"in_sentence": "Mr. Keswani, learned counsel for the appellant, raised before us a number of points; but his arguments may conveniently be crystallized into the following points: (I) whether the decision of the revenue court on the question of title to the suit land bars the jurisdiction of the civil court; (2) whether the concurrent finding given by the lower courts on the question of title was vitiated by an error of law by the courts wrongly throwing the burden of establishing title on the appellant notwithstanding the fact that in the Record of Rights the said land was entered in the name of the appellant; and (3) whether the suit was barred by limitation."}}, {"text": "s. 71", "label": "PROVISION", "start_char": 4964, "end_char": 4969, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 5445, "end_char": 5449, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 5453, "end_char": 5480, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 200", "label": "PROVISION", "start_char": 6078, "end_char": 6089, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 200(1)", "label": "PROVISION", "start_char": 6907, "end_char": 6916, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 71", "label": "PROVISION", "start_char": 6967, "end_char": 6972, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 71", "label": "PROVISION", "start_char": 7702, "end_char": 7712, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 71", "label": "PROVISION", "start_char": 8039, "end_char": 8044, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 200( I)", "label": "PROVISION", "start_char": 8182, "end_char": 8192, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 89", "label": "PROVISION", "start_char": 8375, "end_char": 8385, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 92", "label": "PROVISION", "start_char": 8653, "end_char": 8663, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 93", "label": "PROVISION", "start_char": 8761, "end_char": 8771, "source": "regex", "metadata": {"statute": null}}, {"text": "section 88", "label": "PROVISION", "start_char": 9670, "end_char": 9680, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 95", "label": "PROVISION", "start_char": 9683, "end_char": 9693, "source": "regex", "metadata": {"statute": 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10901, "end_char": 10906, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 95", "label": "PROVISION", "start_char": 11024, "end_char": 11029, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 95", "label": "PROVISION", "start_char": 11418, "end_char": 11423, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 200(1)", "label": "PROVISION", "start_char": 12002, "end_char": 12011, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 13844, "end_char": 13852, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 14149, "end_char": 14163, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "March 5, 1953", "label": "DATE", "start_char": 14318, "end_char": 14331, "source": "ner", "metadata": {"in_sentence": "The suit was originally filed by the respondents for a declaration -0f their title to the suit property, but as they were dispossessed\n0f the land on March 5, 1953, subsequent to the filing of the suit, the plaint was amended on July 24, 1954, praying for delivery of possession."}}, {"text": "July 24, 1954", "label": "DATE", "start_char": 14397, "end_char": 14410, "source": "ner", "metadata": {"in_sentence": "The suit was originally filed by the respondents for a declaration -0f their title to the suit property, but as they were dispossessed\n0f the land on March 5, 1953, subsequent to the filing of the suit, the plaint was amended on July 24, 1954, praying for delivery of possession."}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 14463, "end_char": 14471, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 14479, "end_char": 14493, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1966_3_623_630_EN", "year": 1966, "text": "....\n\n\" ,.\n\n' • '\n\n' ..\n\nSETH GULABCHAND\n\nSETH KUDILAL AND OTHERS\n\nFebruary 22, 1966\n\n[P. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO,\n\nM. HIDAYATULLAH, J.C. SHAH ANDS. M. S!KRI, JJ.]\n\nContract Act 1872, s. 23-Suit for specific performance of agre.ement- Finding that consideration for agreement was a bribe-Whether such finding required to be based on proof as In a criminal ca.re-Whether 1. 3 of Indian Evidence Act, 1872 applies same standard of proof in all civil cases.\n\nG was one of a number of partners in a firm which carried on the business of acting as Managing Agents and Selling Agents of a company owning a textile mill in Indore. Serious disputes arose between tho partners and soon thereafter the Directcmo of the managed company appointed a committee in November 1940, of which the appellant was a member, to inquire into certain allegations made against G and two other partners of the managing agency firm.\n\nIn February 1941, G entered into an agreement with the appellant to sell to him a share in the partnership wblch was to be transferred to G by virtue of an arbitration award on the disputes between the partners.\n\nIn April 1941, the committee gave its final report which was favourable to G although the interim report of December 1940 had not been 10\n\nfavourable.\n\nUpon G failing to transfer the share in the partnership as provided in the agreement of February 1941, the appellant filed a suit against the heirs and legal representatives of G for specific performance of the agreement. The High Court decreed the appellant's suit, but on appeal to the Division Bench of the High Court, the decree was set aside.\n\nA further appeal to the Full Bench of the High Court was dismissed. Both the Dhi- 1wn Bench and the Full Bench held that the agreement to sell a •hare in\n\nthe partnership was a bribe offered by G to the appellant to write a report favourable to him.\n\nIn the appeal to this Court, it was contended on behalf of the appellant, inter alia, that there was no evidence in support of the finding relati•g to l>ribery arrived at by the Full Bench and that the said finding WaJ based on mere surmises; that the Full Bench had misdirected itself in not adopt ing a strict standard of proof and that where bribery is alleged in a civil case, the same standard of proof should be required as in a criminal case; that in case of c'.rcumstantial evidence, the circumstances must be such so as to exclude any other reasonable possibility and that if this principle was applied to the present case, the finding of bribery must be reversed as the facts were equally consistent with the appellant having acted honestly; and that immorality witbln Section 23 of the Indian Contract Act is confined to sexual immorality.\n\nHELD : On the facts, the Full Bench did not rely on any surmiseo and its findings were not vitiated.\n\nIt is clear from Section 3 of the Indian Evidence Act that the •ame standard of proof applies in all civil cases. It makes no difference between cases in \\Vhich charges of a fraudulent or criminal character are made\n\nand cases in which such charges are not made.\n\nBut this is not to say A that the Coun will not, while striking the balance of probability, keep in mind the presumption of honesty or innocence or the nature of the crime or fraud charged. (629 0-H]\n\nWeston v. Peary Mohan Dass (1913), I.L.R. 40 Cal. 898 at 916: disapproved.\n\nJara/ Kumari Da.rsi v. Bissesur : l.L.R. 39 Cal. 245 and Prasannamayl Debya v. Baikuntlra Nath Chattoraj: I.L.R. 49 Cal. 132; referred to.\n\nIt cannot be said that rules applicable to circumstantial evidence in criminal cases would apply where a party, in a civil case, ; s alleged to have accepted a bribe. The ordinary rules governing civil cases will continue to apply. (630 E] Rafa Si11gh v. Chachoo Singh : A.I.R., 1940 Patna 210; referred to.\n\nIt was unn=ary to consider whether the consideration for the &ifCOment of February 1941 was immoral or not.\n\nThe ca.se ol bribery i.o covered otherwise by Section 23 of the Contract Act (630 OJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 795 of 1963.\n\nAppeal by special leave from the judgment and decree dated November 24, 1958, of the Madhya Pradesh High Court at D Indore in Civil Special Appeal No. 5 of 1949.\n\nC. B. Agamala, J. D. Patel, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the appellant.\n\nM. P. Amin, C. B. Sang/ii, V. M. Amin and l. N. Shroff, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nSikri, J, This appeal by special leave is directed against the judgment and decree of the Full Bench of the High Courl of Madhya Pradesh in Civil Special Appeal No. 5 of 1949, and arises out of a suit filed by the appellant, Seth Gulabchand, hereinafter referred to as the plaintiff, against heirs and legal representatives of Seth Govindram Seksaria, on the original side of the High Court of the former Indore State for specific performance of an agreement dated February 28, 1941, entered into between the plaintiff and the deceased Govindram. Sanghi, J., decreed the suit on June 11, 1948.\n\nAgainst this judgment and decree, the defendants filed an appeal to a Division Bench of the Madhya Bharat High Court and the plaintiff also preferred a cross appeal. The Division Bench accepted the defendants' appeal, reversed the judgment and decree of Sanghi, .I., and dismissed the plaintiff's suit as also his cross appeal.\n\nThereafter the plaintiff filed an appeal under s. 25 of the Madhya Bharat High Court of Judicature Act, 1949, as it stood before it was arr.ended by Madhya Bharat Act No. 3 of 1950. When this appeal came up for hearing before a Full Bench of the Madhya Pradesh High Court, a preliminary objection as to the competency cf the appeal was taken on behalf of the defendants-respon-\n\n- ,..\n\n. •\n\n• •\n\n• ...\n\ndents. The Full Bench held that the appeal was not competent, but this Court, on appeal, held that the appeal was competent and remitted the case to the High Court for decision on merits. On remand the Full Bench upheld the decision of the Division Bench and dismissed the appeal. The matter is now before us.\n\nIn view of the arguments urged before us by learned counsel for the appellant, Mr. C. B. Aggarwala, it is not necessary to give in detail the history of the disputes between the parties, or all the points that were debated before the High Court. To appreciate the arguments addressed to us it is only necessary to give the following facts.\n\nGovindram Seksaria, Brijlal Ramjidas, Bilasrai Joharmal and four other persons entered into a deed of partnership on July 17, 1935 for carrying on the business of acting as Managing Agents and Selling Agents of Indore Malwa United Mills Ltd., a company owning a textile mill in Indore. Serious disputes arose between the partners. The Board of Directors of the Company appointed a Committee in November 1940 to enquire into certain allegations made against Govindram Seksaria, Brijlal and Bilasrai. The Committee consisted of Mr. R. C. Jall as Chairman, and Seth Hiralal and the plaintiff as members. In the meantime, the partners referred their differences to the arbitration of Col. Dina Nath, the Prime Minister of the former Holkar State. On February 8, 1941, the Arbitrator gave an award, inter alia deciding that Govindram Seksaria should buy up the five-annas shares of Brijlal Ramjidas and Bilasrai Joharmal at par and that the latter should sell their respective shares of annas two and a half each in the rupee at par and also sell the debentures held by them to Govindram Seksaria at par. On February 12, 1941, Brijlal and Bilasrai instituted a suit in the Bombay High Court against Govindram and other partners of the Managing Agency contesting the validity of the award made by Col. Dina Nath. They failed before the Bombay High Court and ultimately before the Privy Council.\n\nOn November 5, 1947, a deed of assignment of the four-annas share of Brijlal and Bilasrai was executed in favour of the defendants as legal representatives of Govindram, who had died in the meantime in May 1946. On November 6, 1947, the plaintiff instituted the suit out of which this appeal arises.\n\nVarious issues were raised in this suit but it is only necessary to mention issue No. 4, which was as follows:\n\n\"Was the agreement to sell the two and a half annas share a bribe offered by the deceased Seth Govindram to the plaintiff to write a report favourable to him, the plaintiff being a member of the Committee of three persons appointed by the Directors of the Malwa Mills, Indore to\n\nenquire into and report on the management of the Mills by Seth Govindram ?\"\n\nBoth the Division Bench and the Full Bench on appeal have held this issue to be proved and it is common ground that if the decision of the Full Bench on this issue cannot be successfully assailed, no further point arises and the appeal must fail.\n\nWe may here state the primary facts and the findings of the Division Bench and the Full Bench. After the award was made Govindram addressed a letter to Mr. Jail as a member of the Enquiry Committee on February 13, 1941, intimating to him that the Prime Minister of the Holkar State had given an award on February 8, 1941, in his favour, and forwarding a copy of the award.\n\nOn the same date Govindram addressed a similar letter to the plaintiff. A day or two after the receipt of this letter by the plaintiff Govindram met him at his house and made him an offer of making him a partner of the managing agency firm by assigning two and half annas shares out of the share of Brijlal and Bilasrai which he was to get under the award. The next day the plaintiff accepted the offer and on February 28, 1941, the agreement was concluded between the parties. A day before the agreement was signed by the parties, Gulabchand, Plaintiff, addressed a Jetter to Mr. Jail, the Chairman of the Enquiry Committee, on February 27, 1941, for holding the meetings of the Committee daily so as to expedite its report. On February 8, 1941, Govindram met Mr. Jail, and offered to sell to him one anna share, which he rejected saying that \"as he was the member of the Enquiry Committee, it would look as if he was making the offer to please him.\" The Committee gave its final report on April 7, I 94 I, which was favourable to Govindram, although the interim report dated December I 6, I 940, was none too favourable to him. The plaintiff had no previous experience of the working of any Mill and had never been a managing agent of any textile mill.\n\nGovindram was a rich man and a millionaire. In 1942 Govindram suggested to the plaintiff that the share to be sold to him should be reduced to one and a half annas, hut the plaintiff did not accept the suggestion. Later, in 1942, when Mr. Jail questioned Govindram about the intended reduction in the share which was to be sold to the plaintiff, Govindram replied that he did not really intend to give any share to the plaintiff or anyone and that he proposed to give the entire four-annas share to the Holkar State by way of charity.\n\nFrom all these facts the Division Bench inferred and concluded that the offer of two and a half annas share by Govindram\n\nto the plaintiff, Gulabchand, was a bribe in order to induce him to H report in his favour and was accepted as such by Gulabchand.\n\nThis conclusion was challenged before the Full Bench on various grounds, but the Full Bench upheld the decision. The Full Bench\n\n. •\n\n. --\n\n• . -\n\nOULABCHAND v. KUDILAL (Sikri, /.) 621\n\nfound that in making the offer of the sale of two and a half annas share to the plaintiff Govindram did not care for the plaintiff's. money or his services in the management of the mill because \"Govindram continued to manage the Mill without the plaintiff, putting him off by saying that the contract would be fulfilled after the end of the litigation initiated by Bilasrai and Brijlal, and after the Enquiry Committee gave its final report Govindram actually suggested a reduction in the share and even told Mr. Jail that he was not going to sell it to the plaintiff or to anyone. The ostensible reason given for the intended partnership of Gulabchand is 'too thin to hide the real reason', and its recital in the agreement is odd in itself.\" The Full Bench found that the balance-sheets tendered in evidence in the case showed that Govindram had earned enough money by way of selling and managing agency commission and it was not necessary for him to find a financial partner in the plaintiff and that Govin dram was prepared to give the entire four annas share he had obtained under the award to the Holkar State in charity was in itself an indication that the offer of two and half annas share to Gulabchand was not made by Govindram on account of his own financial stringency. After considering various facts the Full Bench concluded that \"the share in the managing agency partnership of the mills was, therefore, not one which could be parted away easily by a partner or could be had by anyone for the mere asking and readiness to furnish the necessary proportionate capital and to purchase the debentures of the required amount, without any more. That \"any more\" in the present case, is, as the learned Judges of the Division Bench have suggested, nothing else than the anxiety of Govindram to get a favourable report from the Enquiry Committee and the willingness of the plaintiff to oblige him by making a favourable report. Taking into consideration the facts and circumstances narrated in the judgment of the Division Bench at pages 170 to 173 of the printed paper book, and those summarised above, the conclusion at which the learned Judges arrived that the transaction was in the nature of bribe to the plaintiff appears to us to have all the commendation which commonsense and the realities of the case can give it. It is one which legitimately can be drawn from the facts and circumstances proved in the case and in accordance with the probabilities of the case. It cannot, therefore, be maintained that the defendants have not discharged the burden of the proof that lay on them of establishing the plea of bribe. They were not required to prove that fact beyond reasonable doubt as in a criminal case.\"\n\nMr. C. B. Aggarwala, while admitting that concurrent findings of fact cannot ordinarily be assailed before this Court, contends that in this case there is no evidence in support of the findings arrived at by the Full Bench and that the findings are based on mere surmises.\n\nHe further says that the Full Bench has misdirected\n\n628 su_pllEME CQUllT R.l!POP.TS\n\n[1966) 3 S.C.R.\n\nitself in not adopting a strict standard of proof in this case. He urges that where bribery is alleged in a civil case the same standard of proof should be required as in a criminal matter. He further urges that the High Court should have held that Hiralal's evidence was not admissible. Another argument urged by him is that there was no proof at all that the plaintiff was a party to the intention of Govindram to bribe him.\n\nHe says that there is presumption that the plaintiff acted honestly and no material has been placed to displace that presumption.\n\nWe see no force in Mr. Aggarwala's first contention that there is no evidence in support of the findings of the Full Bench or that\n\nthe findings are based on mere surmises. It is true that there is <listincti<m between a probability and a mere surmise. But in this C case we are satisfied that the Full Bench did not rely on any surmises.\n\nThe real complaint of Mr. Aggarwala in this case seems to be that as bribery was alleged the Full Bench should have gone into the question of bribery as if it was a criminal case.\n\nJn this connection he relied on the following observations made by Woodroffe, J., in Weston v. Peary Mohan Dass(l).\n\n\"And speaking for myself where, whatever be the form of the proceeding, charges of a fraudulent or criminal character are made against a party thereto, it is right to insist that such charges be proved clearly and beyond reasonable doubt, though the nature and extent of such proof must necessarily vary according to the circumstances of each case. There is a presumption against crime and misconduct, and the more heinous and improbable a crime is, the greater of necessity is the force of the evidence required to overcome such presumption. I cannot myself imagine a Court saying to a party, who, as in this case, may be a person holding a high and responsible position, with a previous unblemished record : \"It is true that I have reasonable doubts whether you did the grossly criminal acts with which you are charged, but I find that you did so all the same.\" And this exclusion of reasonable doubt is all that the so-called \"criminal proof\" requires.\"\n\nFletcher, J., the Trial Judge, relying oh Jara/ K11mari Dassi v.\n\nBissemr(2) to which Woodroffe, J., was a party, had overruled the point that the standard of proof in a civil case, in which a charge of a criminal character is made, was the same as if the parties were being tried for a criminal offence.\n\nHe observed that in India, under the Indian Evidence Act, there is no rule that the standard 11 of proof in a case like the present must be the same as if the\n\n(1) (t913) I.LR. 40 Cal. 898 at 916.\n\n(2) J.L.R. 39 cal. 245 : 16 C.W.N. 265.\n\n,..\n\n, •\n\n• •\n\nA defendants were being tried on a criminal charge. This case (Jarat\n\n~ KJPnari Dassi v. Bissesur)(l) was followed in Prasannamayi Debya\n\nv. Baikuntha Nath Chattoraj(2). The Division Bench followed these observations of Jenkins, C. J., in Jara! Kumari Dassi's(1) \" case:\n\nB \"Demonstrations, or a conclusion at all points logical cannot be expected nor can a degree of certainty be demantled of which the matter under investigation is not re- , asonably capable. Accepting the external test which ex- ,\n\nperience commends, the Evidence Act in conformity with the general tendency of the day adopted the requirements of the prudent man as an appropriate concrete standard by c which to measure proof.\n\nThe Evidence Act is at the same time expressed in terms which allow full effect to be given to circumstances or conditions of probability or improbability, so that where, as in this case, forgery comes in question in a civil suit, the presumption against misconduct is not with- D out its due weight as a circumstance of improbability, • though the standard of proof to the exclusion of all rea- ' sonable doubt required in a criminal case may not be applicable.\" In s. 3 of the Indian Evidence Act, the words_\"proved'', \"disproved\" and \"not proved\" and defined as follows :.\n\nE \"Proved.-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so prol:.able that a\n\nprudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.\"\n\n\"Disproved.-A fact is said to be disproved when,\n\n~ after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.\"\n\n\"Not proved.-A fact is said not to be proved when it G is neither proved nor disproved.\" It is apparent from the above definitions that the Indian Evidence \"' Act applies the same standard of proof in all civil cases. It makes no difference between cases in which charges of a fraudulent or criminal character are made and cases in which such charges are not \" made. But this is not to say that the Court will not, while striking H the balance of probability, keep in mind the presumption of honesty • or innocence or the nature of the crime or fraud charged. In our\n\n(I) I.L.R. 39 Cal. 245 : 16 C.W.N. 265.\n\n(2) l.L.R 49 Cal. 132.\n\nopinion, Woodroffe, J., was v.Tong in insisting that such charges must be proved clearly and beyond reasonable doubt.\n\nHiralal's evidence was sought to be ruled out on the ground that what he had stated in his evidence had not been put to the plaintiff. Hiralal had deposed that after the award the plaintiff saw him and told him that there was some settlement between him and Govindram. It is not necessary to decide this point because the Full Bench did not base its findings on Hiralal's evidence.\n\nMr. Aggarwala, relying on Raja Singh v. Chairhoo Singh(') further urges that in case of circumstantial evidence the circumstances must be such so as to exclude any other reasonable possibility and he says that if this principle is applied to this case the c finding of bribery must be reversed as the facts are equally consistent with the plaintiff having acted honestly. Meredith, J., had observed as follows :\n\n\"Now it is well-settled that where fraud is to be inferred from the circumstances, and is not directly proved, those circumstances must be such as to exclude any other reasonable possibility.\n\nIn other words, the criterion is similar to that which ts applicable to circumstantial evidence in criminal cases.\"\n\nWe are unable to agree with these observations. As we have said before, the fact that the party is alleged to have accepted bribe\n\nin a civil case does not convert it into a criminal case, and the ordi- E nary rules applicable to civil cases apply. The learned counsel has not been able to cite any other authority to show that there is any such well-settled proposition, as stated by Meredith, J.\n\nComing to the next contention, the fact whether the plaintiff was a party to the intention of Govindram to bribe him has to be judged like any other fact on the balance of probability. We are F not satisfied that the Full Bench has misdirected itself in any manner in finding this fact.\n\nIn the end Mr. Aggarwala urges that immorality within s. 23 of the Indian Contract Act is confined to sexual immorality, but we are not concerned with the question whether the consideration is immoral or not. The case of bribery is clearly covered G otherwise by s. 23.\n\nIn the result we hold that the findings of the Full Bench are, not vitiated and must be accepted. The appeal, therefore, fails and is dismissed with costs.\n\nAppeal dismissed.\n\n(I) A.l.R. 194-0 Patna 210 at 203.", "total_entities": 82, "entities": [{"text": "SETH GULABCHAND", "label": "PETITIONER", "start_char": 25, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "SETH GULABCHAND", "offset_not_found": false}}, {"text": "SETH KUDILAL AND OTHERS", "label": "RESPONDENT", "start_char": 42, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "SETH KUDILAL AND OTHERS", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 87, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 116, "end_char": 129, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J", "label": "JUDGE", "start_char": 132, "end_char": 150, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 151, "end_char": 158, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Contract Act 1872", "label": "STATUTE", "start_char": 181, "end_char": 198, "source": "regex", "metadata": {}}, {"text": "s. 23", "label": "PROVISION", "start_char": 200, "end_char": 205, "source": "regex", "metadata": {"linked_statute_text": "Contract Act 1872", "statute": "Contract Act 1872"}}, {"text": "Indian Evidence Act, 1872", "label": "STATUTE", "start_char": 394, "end_char": 419, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indore", "label": "GPE", "start_char": 632, "end_char": 638, "source": "ner", "metadata": {"in_sentence": "G was one of a number of partners in a firm which carried on the business of acting as Managing Agents and Selling Agents of a company owning a textile mill in Indore."}}, {"text": "Section 23", "label": "PROVISION", "start_char": 2666, "end_char": 2676, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Contract Act", "label": "STATUTE", "start_char": 2684, "end_char": 2703, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 3", "label": "PROVISION", "start_char": 2858, "end_char": 2867, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 2875, "end_char": 2894, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 23", "label": "PROVISION", "start_char": 3986, "end_char": 3996, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 4026, "end_char": 4054, "source": "ner", "metadata": {"in_sentence": "The ca.se ol bribery i.o covered otherwise by Section 23 of the Contract Act (630 OJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "Madhya Pradesh High Court at D Indore", "label": "COURT", "start_char": 4172, "end_char": 4209, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and decree dated November 24, 1958, of the Madhya Pradesh High Court at D Indore in Civil Special Appeal No."}}, {"text": "B. Agamala", "label": "JUDGE", "start_char": 4253, "end_char": 4263, "source": "ner", "metadata": {"in_sentence": "C. B. Agamala, J. D. Patel, J. B. Dadachanji, 0."}}, {"text": "J. D. Patel", "label": "JUDGE", "start_char": 4265, "end_char": 4276, "source": "ner", "metadata": {"in_sentence": "C. B. Agamala, J. D. Patel, J. B. Dadachanji, 0."}}, {"text": "B. Dadachanji", "label": "LAWYER", "start_char": 4281, "end_char": 4294, "source": "ner", "metadata": {"in_sentence": "C. B. Agamala, J. D. Patel, J. B. Dadachanji, 0."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 4296, "end_char": 4308, "source": "ner", "metadata": {"in_sentence": "C. B. Agamala, J. D. Patel, J. B. Dadachanji, 0."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 4313, "end_char": 4328, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "M. P. Amin", "label": "LAWYER", "start_char": 4350, "end_char": 4360, "source": "ner", "metadata": {"in_sentence": "M. P. Amin, C. B. Sang/ii, V. M. Amin and l. N. Shroff, for the respondents."}}, {"text": "V. M. Amin", "label": "LAWYER", "start_char": 4377, "end_char": 4387, "source": "ner", "metadata": {"in_sentence": "M. P. Amin, C. B. Sang/ii, V. M. Amin and l. N. Shroff, for the respondents."}}, {"text": "l. N. Shroff", "label": "LAWYER", "start_char": 4392, "end_char": 4404, "source": "ner", "metadata": {"in_sentence": "M. P. Amin, C. B. Sang/ii, V. M. Amin and l. N. Shroff, for the respondents."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 4472, "end_char": 4477, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSikri, J, This appeal by special leave is directed against the judgment and decree of the Full Bench of the High Courl of Madhya Pradesh in Civil Special Appeal No."}}, {"text": "Seth Gulabchand", "label": "PETITIONER", "start_char": 4697, "end_char": 4712, "source": "ner", "metadata": {"in_sentence": "5 of 1949, and arises out of a suit filed by the appellant, Seth Gulabchand, hereinafter referred to as the plaintiff, against heirs and legal representatives of Seth Govindram Seksaria, on the original side of the High Court of the former Indore State for specific performance of an agreement dated February 28, 1941, entered into between the plaintiff and the deceased Govindram.", "canonical_name": "SETH GULABCHAND"}}, {"text": "Seth Govindram Seksaria", "label": "OTHER_PERSON", "start_char": 4799, "end_char": 4822, "source": "ner", "metadata": {"in_sentence": "5 of 1949, and arises out of a suit filed by the appellant, Seth Gulabchand, hereinafter referred to as the plaintiff, against heirs and legal representatives of Seth Govindram Seksaria, on the original side of the High Court of the former Indore State for specific performance of an agreement dated February 28, 1941, entered into between the plaintiff and the deceased Govindram.", "canonical_name": "Seth Govindram Seksaria"}}, {"text": "February 28, 1941", "label": "DATE", "start_char": 4937, "end_char": 4954, "source": "ner", "metadata": {"in_sentence": "5 of 1949, and arises out of a suit filed by the appellant, Seth Gulabchand, hereinafter referred to as the plaintiff, against heirs and legal representatives of Seth Govindram Seksaria, on the original side of the High Court of the former Indore State for specific performance of an agreement dated February 28, 1941, entered into between the plaintiff and the deceased Govindram."}}, {"text": "Govindram. Sanghi", "label": "JUDGE", "start_char": 5008, "end_char": 5025, "source": "ner", "metadata": {"in_sentence": "5 of 1949, and arises out of a suit filed by the appellant, Seth Gulabchand, hereinafter referred to as the plaintiff, against heirs and legal representatives of Seth Govindram Seksaria, on the original side of the High Court of the former Indore State for specific performance of an agreement dated February 28, 1941, entered into between the plaintiff and the deceased Govindram.", "canonical_name": "Govindram Seksaria"}}, {"text": "June 11, 1948", "label": "DATE", "start_char": 5051, "end_char": 5064, "source": "ner", "metadata": {"in_sentence": "Sanghi, J., decreed the suit on June 11, 1948."}}, {"text": "Madhya Bharat High Court", "label": "COURT", "start_char": 5159, "end_char": 5183, "source": "ner", "metadata": {"in_sentence": "Against this judgment and decree, the defendants filed an appeal to a Division Bench of the Madhya Bharat High Court and the plaintiff also preferred a cross appeal."}}, {"text": "Sanghi", "label": "JUDGE", "start_char": 5321, "end_char": 5327, "source": "ner", "metadata": {"in_sentence": "The Division Bench accepted the defendants' appeal, reversed the judgment and decree of Sanghi, .I., and dismissed the plaintiff's suit as also his cross appeal."}}, {"text": "s. 25", "label": "PROVISION", "start_char": 5443, "end_char": 5448, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Bharat High Court of Judicature Act, 1949", "label": "STATUTE", "start_char": 5456, "end_char": 5504, "source": "regex", "metadata": {}}, {"text": "Madhya Bharat Act", "label": "STATUTE", "start_char": 5545, "end_char": 5562, "source": "regex", "metadata": {}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 5642, "end_char": 5667, "source": "ner", "metadata": {"in_sentence": "When this appeal came up for hearing before a Full Bench of the Madhya Pradesh High Court, a preliminary objection as to the competency cf the appeal was taken on behalf of the defendants-respon-\n,..\n\n. •"}}, {"text": "C. B. Aggarwala", "label": "OTHER_PERSON", "start_char": 6193, "end_char": 6208, "source": "ner", "metadata": {"in_sentence": "In view of the arguments urged before us by learned counsel for the appellant, Mr. C. B. Aggarwala, it is not necessary to give in detail the history of the disputes between the parties, or all the points that were debated before the High Court."}}, {"text": "Govindram Seksaria", "label": "PETITIONER", "start_char": 6451, "end_char": 6469, "source": "ner", "metadata": {"in_sentence": "Govindram Seksaria, Brijlal Ramjidas, Bilasrai Joharmal and four other persons entered into a deed of partnership on July 17, 1935 for carrying on the business of acting as Managing Agents and Selling Agents of Indore Malwa United Mills Ltd., a company owning a textile mill in Indore.", "canonical_name": "Govindram Seksaria"}}, {"text": "Brijlal Ramjidas", "label": "OTHER_PERSON", "start_char": 6471, "end_char": 6487, "source": "ner", "metadata": {"in_sentence": "Govindram Seksaria, Brijlal Ramjidas, Bilasrai Joharmal and four other persons entered into a deed of partnership on July 17, 1935 for carrying on the business of acting as Managing Agents and Selling Agents of Indore Malwa United Mills Ltd., a company owning a textile mill in Indore."}}, {"text": "Bilasrai Joharmal", "label": "OTHER_PERSON", "start_char": 6489, "end_char": 6506, "source": "ner", "metadata": {"in_sentence": "Govindram Seksaria, Brijlal Ramjidas, Bilasrai Joharmal and four other persons entered into a deed of partnership on July 17, 1935 for carrying on the business of acting as Managing Agents and Selling Agents of Indore Malwa United Mills Ltd., a company owning a textile mill in Indore."}}, {"text": "July 17, 1935", "label": "DATE", "start_char": 6568, "end_char": 6581, "source": "ner", "metadata": {"in_sentence": "Govindram Seksaria, Brijlal Ramjidas, Bilasrai Joharmal and four other persons entered into a deed of partnership on July 17, 1935 for carrying on the business of acting as Managing Agents and Selling Agents of Indore Malwa United Mills Ltd., a company owning a textile mill in Indore."}}, {"text": "Indore Malwa United Mills Ltd.", "label": "ORG", "start_char": 6662, "end_char": 6692, "source": "ner", "metadata": {"in_sentence": "Govindram Seksaria, Brijlal Ramjidas, Bilasrai Joharmal and four other persons entered into a deed of partnership on July 17, 1935 for carrying on the business of acting as Managing Agents and Selling Agents of Indore Malwa United Mills Ltd., a company owning a textile mill in Indore."}}, {"text": "Govindram Seksaria", "label": "JUDGE", "start_char": 6908, "end_char": 6926, "source": "ner", "metadata": {"in_sentence": "The Board of Directors of the Company appointed a Committee in November 1940 to enquire into certain allegations made against Govindram Seksaria, Brijlal and Bilasrai.", "canonical_name": "Govindram Seksaria"}}, {"text": "Brijlal", "label": "OTHER_PERSON", "start_char": 6928, "end_char": 6935, "source": "ner", "metadata": {"in_sentence": "The Board of Directors of the Company appointed a Committee in November 1940 to enquire into certain allegations made against Govindram Seksaria, Brijlal and Bilasrai."}}, {"text": "Bilasrai", "label": "OTHER_PERSON", "start_char": 6940, "end_char": 6948, "source": "ner", "metadata": {"in_sentence": "The Board of Directors of the Company appointed a Committee in November 1940 to enquire into certain allegations made against Govindram Seksaria, Brijlal and Bilasrai."}}, {"text": "R. C. Jall", "label": "OTHER_PERSON", "start_char": 6981, "end_char": 6991, "source": "ner", "metadata": {"in_sentence": "The Committee consisted of Mr. R. C. Jall as Chairman, and Seth Hiralal and the plaintiff as members."}}, {"text": "Seth Hiralal", "label": "OTHER_PERSON", "start_char": 7009, "end_char": 7021, "source": "ner", "metadata": {"in_sentence": "The Committee consisted of Mr. R. C. Jall as Chairman, and Seth Hiralal and the plaintiff as members."}}, {"text": "Dina Nath", "label": "OTHER_PERSON", "start_char": 7136, "end_char": 7145, "source": "ner", "metadata": {"in_sentence": "Dina Nath, the Prime Minister of the former Holkar State."}}, {"text": "Holkar", "label": "GPE", "start_char": 7180, "end_char": 7186, "source": "ner", "metadata": {"in_sentence": "Dina Nath, the Prime Minister of the former Holkar State."}}, {"text": "February 8, 1941", "label": "DATE", "start_char": 7197, "end_char": 7213, "source": "ner", "metadata": {"in_sentence": "On February 8, 1941, the Arbitrator gave an award, inter alia deciding that Govindram Seksaria should buy up the five-annas shares of Brijlal Ramjidas and Bilasrai Joharmal at par and that the latter should sell their respective shares of annas two and a half each in the rupee at par and also sell the debentures held by them to Govindram Seksaria at par."}}, {"text": "February 12, 1941", "label": "DATE", "start_char": 7554, "end_char": 7571, "source": "ner", "metadata": {"in_sentence": "On February 12, 1941, Brijlal and Bilasrai instituted a suit in the Bombay High Court against Govindram and other partners of the Managing Agency contesting the validity of the award made by Col."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 7619, "end_char": 7636, "source": "ner", "metadata": {"in_sentence": "On February 12, 1941, Brijlal and Bilasrai instituted a suit in the Bombay High Court against Govindram and other partners of the Managing Agency contesting the validity of the award made by Col."}}, {"text": "Govindram", "label": "PETITIONER", "start_char": 7645, "end_char": 7654, "source": "ner", "metadata": {"in_sentence": "On February 12, 1941, Brijlal and Bilasrai instituted a suit in the Bombay High Court against Govindram and other partners of the Managing Agency contesting the validity of the award made by Col.", "canonical_name": "Govindram Seksaria"}}, {"text": "November 5, 1947", "label": "DATE", "start_char": 7844, "end_char": 7860, "source": "ner", "metadata": {"in_sentence": "On November 5, 1947, a deed of assignment of the four-annas share of Brijlal and Bilasrai was executed in favour of the defendants as legal representatives of Govindram, who had died in the meantime in May 1946."}}, {"text": "Govindram", "label": "JUDGE", "start_char": 8000, "end_char": 8009, "source": "ner", "metadata": {"in_sentence": "On November 5, 1947, a deed of assignment of the four-annas share of Brijlal and Bilasrai was executed in favour of the defendants as legal representatives of Govindram, who had died in the meantime in May 1946.", "canonical_name": "Govindram Seksaria"}}, {"text": "November 6, 1947", "label": "DATE", "start_char": 8056, "end_char": 8072, "source": "ner", "metadata": {"in_sentence": "On November 6, 1947, the plaintiff instituted the suit out of which this appeal arises."}}, {"text": "Seth Govindram", "label": "OTHER_PERSON", "start_char": 8344, "end_char": 8358, "source": "ner", "metadata": {"in_sentence": "4, which was as follows:\n\n\"Was the agreement to sell the two and a half annas share a bribe offered by the deceased Seth Govindram to the plaintiff to write a report favourable to him, the plaintiff being a member of the Committee of three persons appointed by the Directors of the Malwa Mills, Indore to\n\nenquire into and report on the management of the Mills by Seth Govindram ?\"", "canonical_name": "Seth Govindram Seksaria"}}, {"text": "Malwa Mills, Indore", "label": "ORG", "start_char": 8510, "end_char": 8529, "source": "ner", "metadata": {"in_sentence": "4, which was as follows:\n\n\"Was the agreement to sell the two and a half annas share a bribe offered by the deceased Seth Govindram to the plaintiff to write a report favourable to him, the plaintiff being a member of the Committee of three persons appointed by the Directors of the Malwa Mills, Indore to\n\nenquire into and report on the management of the Mills by Seth Govindram ?\""}}, {"text": "Jail", "label": "OTHER_PERSON", "start_char": 9015, "end_char": 9019, "source": "ner", "metadata": {"in_sentence": "After the award was made Govindram addressed a letter to Mr. Jail as a member of the Enquiry Committee on February 13, 1941, intimating to him that the Prime Minister of the Holkar State had given an award on February 8, 1941, in his favour, and forwarding a copy of the award."}}, {"text": "February 13, 1941", "label": "DATE", "start_char": 9060, "end_char": 9077, "source": "ner", "metadata": {"in_sentence": "After the award was made Govindram addressed a letter to Mr. Jail as a member of the Enquiry Committee on February 13, 1941, intimating to him that the Prime Minister of the Holkar State had given an award on February 8, 1941, in his favour, and forwarding a copy of the award."}}, {"text": "Holkar State", "label": "GPE", "start_char": 9128, "end_char": 9140, "source": "ner", "metadata": {"in_sentence": "After the award was made Govindram addressed a letter to Mr. Jail as a member of the Enquiry Committee on February 13, 1941, intimating to him that the Prime Minister of the Holkar State had given an award on February 8, 1941, in his favour, and forwarding a copy of the award."}}, {"text": "28, 1941", "label": "DATE", "start_char": 9652, "end_char": 9660, "source": "ner", "metadata": {"in_sentence": "The next day the plaintiff accepted the offer and on February 28, 1941, the agreement was concluded between the parties."}}, {"text": "Gulabchand", "label": "OTHER_PERSON", "start_char": 9765, "end_char": 9775, "source": "ner", "metadata": {"in_sentence": "A day before the agreement was signed by the parties, Gulabchand, Plaintiff, addressed a Jetter to Mr. Jail, the Chairman of the Enquiry Committee, on February 27, 1941, for holding the meetings of the Committee daily so as to expedite its report."}}, {"text": "February 27, 1941", "label": "DATE", "start_char": 9862, "end_char": 9879, "source": "ner", "metadata": {"in_sentence": "A day before the agreement was signed by the parties, Gulabchand, Plaintiff, addressed a Jetter to Mr. Jail, the Chairman of the Enquiry Committee, on February 27, 1941, for holding the meetings of the Committee daily so as to expedite its report."}}, {"text": "April 7, I 94 I", "label": "DATE", "start_char": 10224, "end_char": 10239, "source": "ner", "metadata": {"in_sentence": "The Committee gave its final report on April 7, I 94 I, which was favourable to Govindram, although the interim report dated December I 6, I 940, was none too favourable to him."}}, {"text": "Holkar State", "label": "ORG", "start_char": 12568, "end_char": 12580, "source": "ner", "metadata": {"in_sentence": "The Full Bench found that the balance-sheets tendered in evidence in the case showed that Govindram had earned enough money by way of selling and managing agency commission and it was not necessary for him to find a financial partner in the plaintiff and that Govin dram was prepared to give the entire four annas share he had obtained under the award to the Holkar State in charity was in itself an indication that the offer of two and half annas share to Gulabchand was not made by Govindram on account of his own financial stringency."}}, {"text": "Hiralal", "label": "OTHER_PERSON", "start_char": 14812, "end_char": 14819, "source": "ner", "metadata": {"in_sentence": "He further urges that the High Court should have held that Hiralal's evidence was not admissible."}}, {"text": "Aggarwala", "label": "OTHER_PERSON", "start_char": 15145, "end_char": 15154, "source": "ner", "metadata": {"in_sentence": "We see no force in Mr. Aggarwala's first contention that there is no evidence in support of the findings of the Full Bench or that\n\nthe findings are based on mere surmises."}}, {"text": "Woodroffe", "label": "JUDGE", "start_char": 15710, "end_char": 15719, "source": "ner", "metadata": {"in_sentence": "Jn this connection he relied on the following observations made by Woodroffe, J., in Weston v. Peary Mohan Dass(l)."}}, {"text": "Fletcher", "label": "JUDGE", "start_char": 16718, "end_char": 16726, "source": "ner", "metadata": {"in_sentence": "Fletcher, J., the Trial Judge, relying oh Jara/ K11mari Dassi v.\n\nBissemr(2) to which Woodroffe, J., was a party, had overruled the point that the standard of proof in a civil case, in which a charge of a criminal character is made, was the same as if the parties were being tried for a criminal offence."}}, {"text": "India", "label": "GPE", "start_char": 17044, "end_char": 17049, "source": "ner", "metadata": {"in_sentence": "He observed that in India, under the Indian Evidence Act, there is no rule that the standard 11 of proof in a case like the present must be the same as if the\n\n(1) (t913) I.LR."}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 17061, "end_char": 17080, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Jenkins", "label": "JUDGE", "start_char": 17498, "end_char": 17505, "source": "ner", "metadata": {"in_sentence": "The Division Bench followed these observations of Jenkins, C. J., in Jara!"}}, {"text": "Jara! Kumari Dassi's(1", "label": "OTHER_PERSON", "start_char": 17517, "end_char": 17539, "source": "ner", "metadata": {"in_sentence": "The Division Bench followed these observations of Jenkins, C. J., in Jara!"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 18445, "end_char": 18449, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 18457, "end_char": 18476, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Tong", "label": "RESPONDENT", "start_char": 19819, "end_char": 19823, "source": "ner", "metadata": {"in_sentence": "opinion, Woodroffe, J., was v.Tong in insisting that such charges must be proved clearly and beyond reasonable doubt."}}, {"text": "Meredith", "label": "JUDGE", "start_char": 20663, "end_char": 20671, "source": "ner", "metadata": {"in_sentence": "Meredith, J., had observed as follows :\n\n\"Now it is well-settled that where fraud is to be inferred from the circumstances, and is not directly proved, those circumstances must be such as to exclude any other reasonable possibility."}}, {"text": "s. 23", "label": "PROVISION", "start_char": 21755, "end_char": 21760, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Contract Act", "label": "STATUTE", "start_char": 21768, "end_char": 21787, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 23", "label": "PROVISION", "start_char": 21964, "end_char": 21969, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_631_635_EN", "year": 1966, "text": "• • '\n\n63 l\n\nCALTEX INDIA LIMITED v.\n\nPRESIDING OFF1CER, LABOUR COURT, AND ORS.\n\nFebruary 23, 1966\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYATULLAH,\n\nJ. C. SHAH AND S. M. S1KRI, JJ.}\n\nBihar Shops and Estaulishment Act (B of 1954), s. 26(1) provloo- Power of States Government to prescrlue what kinds of misconduct could be punished by dismissal/ discharge without notice under s. 26(1 )- Provl90 whether ultra vires.\n\nThe appellant company held an enquiry into the misconduct of two of its permanent employees and dismissed one of them while discharging the other.\n\nThey made applications to the Labour Court under •· 26 of the Bihar Shops and Establishments Act 8 of 1954. The said court issued a notice to the appellant asking it to show cause why the di,.. missal/ discharge should not be set aside.\n\nThe appellant went to the High Coon under Art. 226 of the Constitution and, Inter alia challenged the validity of s. 26. The High Court having held that the section was valid the appellant came to this Court by special leave. It was contended that the proviso to s. 26(1) was ultra vires because it rolfcred from the vice of excessive delegation in as much as it gave unguided power to the State Government to prescribe what kinds of misconduct were punishable with clischarge or dismissal without notice under s. 26(1).\n\nHELD : It is well known that in industrial law there are two kinds of misconduct, namely, (i) major misconducts which justify punishment of d!smi,.al I discharge and (ii) minor misconducts which do not jmtify punishment of dismissal/ discharge but may call for lesser punishments.\n\nTherefore when the legislature gave power to the State Government under cl. ( c) of s. 40 to specify which kinds of misconduct could be punished without notice under s. 26(1) it clearly indicated to the State Government to include in its list of isconducts such of them as are generally understood as major misconducts which justify the dismissal/ discharge of an employee.\n\nThis was sufficient guidance to the State Government and it is difficult to see what other guidance the legislature could have given to the rule-making authority in this behalf. [633 H-\n\n634 CJ Looking at the list of the several items of misconduct which were prescribed by the State Government under r. 20( I) it was clear that the State Government properly understood the guidance.\n\nIn the circumstances it could not be said that the proviso to s. 26(1) was ultra vires because of the vice of excessive delegation.\n\n[634 HJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1006 of 1964.\n\nAppeal by special leave from the judgment and order dated August 7, 1963 of the Patna High Court in Misc. Judi. Case No. 343 of 1961.\n\nNiren De, Additional Solicitor-General, A. N. Sinha and D.\n\nN. Gupta, for the appellants.\n\nN. S. Bi11dra and R. N. Sachthey, for respondent No. 4.\n\nThe Judgment of the Court was delivered by\n\nWancboo, J. The main question raised in this appeal y special leave against the judgment of the Patna High Court is the constitutionality of s. 26 of the Bihar Shops and Establishments Act, No. 8 of 1954, (hereinafter referred to as the Act).\n\nThe question arises in this way. The appellant is carrying on business in petroleum products in the Patna district.\n\nHabibur Rahman was serving as a watchman and Abdul Rahim as a driver in the permanent employ of the appellant at the Dinapore depot.\n\nThey were charged with gross misconduct and an enquiry was held by the appellant in that connection. Habibur Rahman was discharged on May 5, 1960 and one month's pay in lieu of notice was offered to him. Abdul Rahim was dismissed on April 22, 1960.\n\nThese two employees made applications under s. 26 of the Act in December 1960 before the labour court. l11ese applications were obviously barred by time. The labour court condoned the delay without giving any notice to the appellant on the question and issued notice to show cause why the dismissal/discharge be not set aside.\n\nOn receipt of this notice, the appellant learnt that delay in making the applications had been condoned without hearing it.\n\nConsequently the appellant moved the High Court at Patna under Art. 226 of the Constitution for quashing the order of the labour court condoning the delay on the ground that it had been passed without hearing the appellant.\n\nThereafter in March 1961 the appellant moved the labour court for recalling the ex parte order of condonation. The labour court heard the appellant on March 27, 1961 and decided on April 4, 1961 to condone the delay and confirm the ex parte order already passed. Thereupon the appellant filed another writ petition in the High Court out of which the present appeal has arisen. In this petition the order dated April 4, 1961 was attacked on various grounds. Besides the appellant also attacked the validity of s. 26 of the Act.\n\nIt may be mentioned that a number of other petitions had also been filed before the High Court attacking the validity of ~- 26 of the Act. AU these petitions were heard together and the High Court held tt s. 26 was constitutionally valid. It also held that the order of April 4, 1961 showed that delay had been condoned after hearing the appellant and therefore there was no cause for interference. with that order. The appellant moved the High Court for a cettficatc\n\nto appeal to this Court, which was refused. It then applied for special leave, which was granted and that is how the matter has come before us.\n\nThe attack of the appellant is on the proviso to s. 26 (I) ?f .the Act, and the only ground that has been urged before us on its behalf is •hat that proviso suffers from the vice of excessive delega-\n\n. •\n\n. .\n\n' • !\n\n--\"\"\n\nCALTEX v. LABOUll. COURT (Wanchoo, /.) 633\n\nA tion and should therefore be struck down. The relevant part of s. 26 is in these terms :\n\n\"26. Notice of dismissal or discharge-(!) No employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less than six months except for a reasonable cause and without giving such employee at least one month's notice or one month's wages in lieu of such notice :\n\nProvided that such notice shall not be necessary where the services of such employee are dispensed with on a charge of such misconduct as may be prescribed by the\n\nState Government, supported by satisfactory evidence recorded at an inquiry held for the purpose.\" It is not necessary to set out the rest of s. 26 for that is not under attack.\n\nThe contention on behalf of the appellant is that when the proviso lays down that no such notice would be necessary as is mentioned in the main part of s. 26(1) where services are dispensed with on the charge of misconduct and the State Government is. given full power to specify the nature of the mis-conduct which would eliminate the necessity of a notice, there is excessive delegation of its authority by the legislature in the matter of specifying the nature of such misconduct. It is urged that as the proviso stands it gives arbitrary and naked power to the State Government to specify any misconduct on proof of which notice could be dispensed with.\n\nWe are of opinion that there is no substance in this contention. Under s. 40 of the Act, the State Government has been given the power to make rules to carry out the purposes of the Act. Clause (c) of s. 40 (2) specifically empowers the State Government to frame rules to provide for the nature of misconduct of an employee for which his services may be dispensed with without notice. By virtue of that power, the State Government framed r. 20(1) which specifies as many as 11 acts which are to be treated as misconduct on proof of which no notice as required by s. 26 (I) would be necessary.\n\nWe are of opinion that there is guidance in the words of the section itself in the matter of specifying misconduct on proof of which no notice would be necessary. It is well known that in industrial law there are two kinds of misconduct, namely, (i) major misconducts which justify punishment of dismissal/discharge, and\n\n(ii) minor misconducts which do not justify punishment of dismissal/discharge but may call for lesser punishments. Therefore •\n\nwhen the legislature indicated that the State Government will prescribe the kinds of misconduct on proof of which no notice will be required and services of an employe4 can be dispensed with it was clearly indicating to the State Government to include in its list of misconducts such of them as are generally understood as major misconducts which justify the dismissal/discharge of an employee. This in our opinion is sufficient guidance to the State Government to specify in the rule it was expected to make such misconduct as is generally understood in industrial law to call for the punishment of discharge/dismissal. It is difficult to sec what other guidance the legislature could have given to the rule making authority in this behalf. The only other way in which the legislature could have acted would be to indicate the list of several items of misconduct in the section itself; but apparently the legislature thought that by delegating authority to the State Government the matter of what misconduct should be sufficient to dispense with notice would remain flexible and the State Government would from time to time look into the matter and see what misconduct should be prescribed for this purpose. The authority was being delegated to the State Government and that is also a consideration which the legislature might have kept in its mind when it gave this flexible power to the State Government. The legislature must have known that in industrial law misconduct is generally of two kinds (namely, (i) major misconduct justifying punishment of discharge/dismissal, and (ii) minor misconduct justifying lesser punishment), and that appears to have been thought by the legislature to be sufficient guidance t , the State Government to prescribe by rule such misconduct as is major in nature and deserves punishment of discharge or dismissal. Looking at the list of several items of misconduct which have been prescribed by the State Government under. r. 20(1), we are of the opinion that the State Government also properly understood the guidance which was ;:ontaincd in the words of s. 26( I) and its proviso and has prescribed a list of what are clearly major misconducts for the purpose and has also included therein by the last clause \"breach of the provisions of the Standing Orders applicable to the establishment and certified under the Industrial Employment (Standing Orders) Act,\n\n1946\". The last clause would thus include all other major misconducts which would justify an order of dismissal/discharge.\n\nTherefore as we read th~ words of s. 26(1) and its proviso, we have no doubt that there is sufficient guidance there for the State Government to define misconduct on proof of which no notice would be necessary. Further if we look at what the State Government has done by r. 20 (I), it is clear that the State Government also rightly understood the guidance contained in the words of the section and has acted accordingly. In the circumstances we are of opinion that the proviso to s. 26(1) is not ultra vires because of the vice of excessive delegation.\n\n• .\n\n--.._\n\n' • I\n\nl ' -\n\nCAI.TEX v. LABOUR COURT (Wanchoo, /.) 635\n\nLearned counsel for the appellant also wanted to urge that the order of the labour court condoning delay was bad. We have not allowed him to pursue this point. It is true that t)\" first order condoning delay made in December 1950 was ex parte; but after the writ petition was filed against that order by the appellant in the High Court, the labour court gave an opportunity to the appellant and heard it on March 27, 1961. After hearing both partiei, the labour court confirmed the order condoning delay which it had already made. It cannot therefore be said now that the order was made without hearing both the parties. The High Court hai not thought fit to interfere with the order condoning delay after hearing both parties made on April 4, 1961. We cannot see how the appellant can ask us to interfere in the matter in an appeal by special leave.\n\nThe appeal therefore fails and is hereby dismissed with coi; tl; to reipondent No. 4, namely, the State of Bihar.\n\nAppeal dismissed.", "total_entities": 51, "entities": [{"text": "l\n\nCALTEX INDIA LIMITED", "label": "PETITIONER", "start_char": 10, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "CALTEX INDIA LIMITED", "offset_not_found": false}}, {"text": "PRESIDING OFF1CER, LABOUR COURT, AND ORS", "label": "RESPONDENT", "start_char": 38, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "PRESIDING OFF1CER, LABOUR COURT, AND ORS", "offset_not_found": false}}, {"text": "February 23, 1966", "label": "DATE", "start_char": 81, "end_char": 98, "source": "ner", "metadata": {"in_sentence": "February 23, 1966\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYATULLAH,\n\nJ. C. SHAH AND S. M. S1KRI, JJ.}"}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 101, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 129, "end_char": 142, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH,\n\nJ.", "label": "JUDGE", "start_char": 144, "end_char": 164, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 165, "end_char": 172, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S1K", "label": "PROVISION", "start_char": 183, "end_char": 186, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar Shops and Estaulishment Act", "label": "STATUTE", "start_char": 196, "end_char": 229, "source": "regex", "metadata": {}}, {"text": "s. 26(1)", "label": "PROVISION", "start_char": 243, "end_char": 251, "source": "regex", "metadata": {"linked_statute_text": "Bihar Shops and Estaulishment Act", "statute": "Bihar Shops and Estaulishment Act"}}, {"text": "s. 26(1 )", "label": "PROVISION", "start_char": 389, "end_char": 398, "source": "regex", "metadata": {"linked_statute_text": "Bihar Shops and Estaulishment Act", "statute": "Bihar Shops and Estaulishment Act"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 858, "end_char": 866, "source": "regex", "metadata": {"linked_statute_text": "Bihar Shops and Estaulishment Act", "statute": "Bihar Shops and Estaulishment Act"}}, {"text": "s. 26", "label": "PROVISION", "start_char": 930, "end_char": 935, "source": "regex", "metadata": {"linked_statute_text": "Bihar Shops and Estaulishment Act", "statute": "Bihar Shops and Estaulishment Act"}}, {"text": "s. 26(1)", "label": "PROVISION", "start_char": 1079, "end_char": 1087, "source": "regex", "metadata": {"linked_statute_text": "Bihar Shops and Estaulishment Act", "statute": "Bihar Shops and Estaulishment Act"}}, {"text": "s. 26(1)", "label": "PROVISION", "start_char": 1327, "end_char": 1335, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 1704, "end_char": 1709, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26(1)", "label": "PROVISION", "start_char": 1786, "end_char": 1794, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26(1)", "label": "PROVISION", "start_char": 2442, "end_char": 2450, "source": "regex", "metadata": {"statute": null}}, {"text": "Niren De", "label": "PETITIONER", "start_char": 2720, "end_char": 2728, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General, A. N. Sinha and D.\n\nN. Gupta, for the appellants."}}, {"text": "A. N. Sinha", "label": "LAWYER", "start_char": 2760, "end_char": 2771, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General, A. N. Sinha and D.\n\nN. Gupta, for the appellants."}}, {"text": "D.\n\nN. Gupta", "label": "LAWYER", "start_char": 2776, "end_char": 2788, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General, A. N. Sinha and D.\n\nN. Gupta, for the appellants."}}, {"text": "N. S. Bi11dra", "label": "LAWYER", "start_char": 2811, "end_char": 2824, "source": "ner", "metadata": {"in_sentence": "N. S. Bi11dra and R. N. Sachthey, for respondent No."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 2829, "end_char": 2843, "source": "ner", "metadata": {"in_sentence": "N. S. Bi11dra and R. N. Sachthey, for respondent No."}}, {"text": "Wancboo", "label": "JUDGE", "start_char": 2912, "end_char": 2919, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nWancboo, J. The main question raised in this appeal y special leave against the judgment of the Patna High Court is the constitutionality of s. 26 of the Bihar Shops and Establishments Act, No."}}, {"text": "Patna High Court", "label": "COURT", "start_char": 3008, "end_char": 3024, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nWancboo, J. The main question raised in this appeal y special leave against the judgment of the Patna High Court is the constitutionality of s. 26 of the Bihar Shops and Establishments Act, No."}}, {"text": "s. 26", "label": "PROVISION", "start_char": 3053, "end_char": 3058, "source": "regex", "metadata": {"statute": null}}, {"text": "Patna", "label": "GPE", "start_char": 3256, "end_char": 3261, "source": "ner", "metadata": {"in_sentence": "The appellant is carrying on business in petroleum products in the Patna district."}}, {"text": "Habibur Rahman", "label": "OTHER_PERSON", "start_char": 3273, "end_char": 3287, "source": "ner", "metadata": {"in_sentence": "Habibur Rahman was serving as a watchman and Abdul Rahim as a driver in the permanent employ of the appellant at the Dinapore depot."}}, {"text": "Abdul Rahim", "label": "OTHER_PERSON", "start_char": 3318, "end_char": 3329, "source": "ner", "metadata": {"in_sentence": "Habibur Rahman was serving as a watchman and Abdul Rahim as a driver in the permanent employ of the appellant at the Dinapore depot."}}, {"text": "Dinapore", "label": "GPE", "start_char": 3390, "end_char": 3398, "source": "ner", "metadata": {"in_sentence": "Habibur Rahman was serving as a watchman and Abdul Rahim as a driver in the permanent employ of the appellant at the Dinapore depot."}}, {"text": "May 5, 1960", "label": "DATE", "start_char": 3541, "end_char": 3552, "source": "ner", "metadata": {"in_sentence": "Habibur Rahman was discharged on May 5, 1960 and one month's pay in lieu of notice was offered to him."}}, {"text": "April 22, 1960", "label": "DATE", "start_char": 3640, "end_char": 3654, "source": "ner", "metadata": {"in_sentence": "Abdul Rahim was dismissed on April 22, 1960."}}, {"text": "s. 26", "label": "PROVISION", "start_char": 3701, "end_char": 3706, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court at Patna", "label": "COURT", "start_char": 4147, "end_char": 4166, "source": "ner", "metadata": {"in_sentence": "Consequently the appellant moved the High Court at Patna under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 4173, "end_char": 4181, "source": "regex", "metadata": {"statute": null}}, {"text": "March 27, 1961", "label": "DATE", "start_char": 4486, "end_char": 4500, "source": "ner", "metadata": {"in_sentence": "The labour court heard the appellant on March 27, 1961 and decided on April 4, 1961 to condone the delay and confirm the ex parte order already passed."}}, {"text": "April 4, 1961", "label": "DATE", "start_char": 4516, "end_char": 4529, "source": "ner", "metadata": {"in_sentence": "The labour court heard the appellant on March 27, 1961 and decided on April 4, 1961 to condone the delay and confirm the ex parte order already passed."}}, {"text": "s. 26", "label": "PROVISION", "start_char": 4844, "end_char": 4849, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26", "label": "PROVISION", "start_char": 5068, "end_char": 5073, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26", "label": "PROVISION", "start_char": 5526, "end_char": 5531, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26", "label": "PROVISION", "start_char": 5810, "end_char": 5815, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26", "label": "PROVISION", "start_char": 6481, "end_char": 6486, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26(1)", "label": "PROVISION", "start_char": 6670, "end_char": 6678, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 7248, "end_char": 7253, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 40", "label": "PROVISION", "start_char": 7378, "end_char": 7383, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26", "label": "PROVISION", "start_char": 7740, "end_char": 7745, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26( I)", "label": "PROVISION", "start_char": 10314, "end_char": 10323, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Employment (Standing Orders) Act", "label": "STATUTE", "start_char": 10574, "end_char": 10617, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 26(1)", "label": "PROVISION", "start_char": 10778, "end_char": 10786, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26(1)", "label": "PROVISION", "start_char": 11225, "end_char": 11233, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Bihar", "label": "ORG", "start_char": 12318, "end_char": 12332, "source": "ner", "metadata": {"in_sentence": "4, namely, the State of Bihar."}}]}
{"document_id": "1966_3_636_642_EN", "year": 1966, "text": "DURGACHARAN NAIK AND ORS.\n\nSTATE OF ORISSA\n\nFebruary 23, 1966.\n\n[K. SUBBA RAO Al'D V. RAMASWAMI, JJ.j\n\nCod• of Criminal Procedure (Act 5 of 1898), s. 195-Facts clisc/D1ing offences under ss. 186 and 353, Indian Penal Cod..-Pro\"cution for off•nce under .r. 353 without written complaUit of public urvant- Maintainabi/ity.\n\nThe appellanls were charged with offences untrer s. 143/402, 186 and 353, Indian Penal Code for having obstructed and assaulted two public \"'1\"Vants in the discharge of their 11ublic duty of executing the decree of a Civil Court. They were acqmtted by the trial Court, but on appeal, the High Court convicted them under s. 353, acquitted them urder ss. 143/ 402 and held that the prosecution under s. 186 wu barred by s. 195, Criminal Procedure Code, which requires a complaint in writing by the public servant before a court could take cognizance of the offence.\n\nlo appeal to this Court, it was contended that the prosecution under s. 353, Indian Penal Code, was also barred by s. 195 Criminal Procedure Code.\n\nHELD: Sections 186 and 353, Indian Penal Code. relate to two distinct offences and s. 353 is not referred to in s. 195 Cr.P.C. Section\n\n195, Criminal Procedure Code, does not bar the trial of an accused\n\nI!: pe11on for a distinct offence disclosed by the same set of facts, but which is not within tho ambit of that section, when there is no camouflage or evasion to circumvent the Section. Therefore tbe trial of the appellants\n\nfor the distinct offence under s. 353 was not barred though it was based practically on the same facts as for the prosecution under s. 186, and the High Court wa. justified, on the evidence, in interfering with tho order of acquittal pa.sect by the trial Court in regard to that charge.\n\n[640 E, G; 641 EJ JI\n\nSanwat Singh v. State of Rajasthan [1961] 3. S.C.R. 120 and Agarwal and Kulkarni v. Stat, of Maharashtra, A.I.R. 1963 S.C. 200, followed.\n\nBasir.ul-Huk v. State of West Bengal [1953], S.C.R. 836 and Hori Ram Singh v. Th• Crown, (1939] F.C.R. 159, referred to.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 67 of 1964.\n\nAppeal by special leave from the judgment and order dated March 2, 1964 of the Orissa High Court in Government Appeal No. 49 of 1963.\n\nR. K. Garg, S. C. Agarua/a, M. K. Ramamur1hy and D. P.\n\nSingh, for the appellanls.\n\nII. R. Khanna and R. N. Sachthey, for the respondent ..\n\n• .\n\n' ;\n\nThe Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgment of the Orissa High Court dated March 2, 1964 in Government Appeal No. 49 of 1963 by which the High Court set aside the order of acquittal passed by the Assistant Sessions Judge of Puri and convicted the appellants under s. 353 of the Indian Penal Code and sentenced them to 4 months' rigorous imprisonment.\n\nThe decree-holders Panu Sahu and Naba Sahu levied execution of the decree (Ex. Case No. 125/62) in the Court of the Munsif, Puri against the appellants and a writ of attachment of the moveables of the judgment-debtor was issued for execution through P.W. 2, Sadhu Charan Mohanty, a peon of the Civil Court, Puri, returnable by August 10, 1962. P.W. 2 reached the village of the judgment-debtors on August 10, 1962 at 10 a.m. with the warrant of attachment and asked the judgment-debtors to pay the decretal dues of Rs. 952·10 nP, and when he was going to seize some of the moveables, the appellants came there with lathis and resisted him. P.W. 2 sent a report-Ex. 4-to the Court through Nabaghan requesting the Court to give necessary police help. Accordingly on the same day the Munsif wrote a letter, Ex. 2, requesting the Superintendent of Police, Puri to direct the Officer-in-charge, Sadar Police Station, to give immediate police help to the process server. In pursuance of this letter, P.W. 1, the Assistant Sub- Inspector, Sadar Police Station, Puri was deputed along with two constables including P. W. 3, Constable no. 613. They went to the village Sanua where the writ of attachment was to be executed.\n\nP.W. 6 the Naib Sarpanch and P.W. 8 the Chowkidar of the village Chhaitna also accompanied them. On reaching the spot, they found P.W. 2 sitting in front of the house of Durga Charan Naik-One of the judgment-debtors. The A.S.I. then called out Fakir. Charan Naik, father of Durga Charan Naik one of the judgment-debtors, who opened the door and paid Rs. 952 10 nP to the process server, Sadhu Charan Mohanty and obtained a receipt from him. After the money was paid, all of them left the village and at about 7 p.m. while they were crossing a river nearby in a boat, P.W. I saw the appellant Dnrga Charan with 10 or 12 persons coming from the opposite direction. On seeing them, P.W. I apprehended some trouble and directed P.W. 2 to hand over the money to the chowkidar, P.W. 8. When all of them got down from the boat, appellant Durga Charan forcibly dragged the A.S.I.\n\nA number of other persons including the other appellants assembled at the spot. Durga Charan threatened to assault tlle A.S.I if he did not return the money. Durga Charan also searched hi pockets and Netrananda threatened the A.S.I. by saying that he would not leave the place until the money was returned. When P.W. I wanted to write a report to his police station, Netrananda MllSup.Cl/66-9\n\nobstructed him by holding his right hand.\n\nBipra and Jugal caught A hold of the hands of P. W. 2 and took him to the river bank and ,,,,... demanded return of the money. Then at the intervention of some outsiders the appellants left the spot.\n\nP.W. I lodged the first \"' information report at the police station next morning and after investigation the appellants were chargeshected and committed to the court of Sessions. e\n\nThe appellants were charged under ss. 143/402, Indian Penal Code on the allegation that they formed an unlawful assembly with the common object of committing dacoity. Durga Charan, Jugal, Bipra along with three others were further charged under s. 186, Indian Penal Code for having voluntarily obstructed P.Ws l and 2 in the discharge of their public duty.\n\nDurga Charan and Netrananda were also charged under s. 353, Indian Penal Code for having used criminal force against P.W. I and Bipra Charan and Jugal were similarly charged under s. 353, Indian Penal Code for having used criminal force against P. W. 2 while both of them were discharging their duty as public servants. The Additional Sessions Judge acquitted the appellants of all the charges. The State Government took the matter in appeal to the Orisia High Court which set aaide the order of acquittal with regard to the 4 appellants and conYicted them under s. 353, Indian Penal Code. The High Court, however, held that there was no satisfactory evidence to convict tile appellants under ss. 143/402, Indian Penal Code. As regards the charge under s. 186, Indian Penal Code, the High Court expressed the view that the prosecution was barred under the provisions of s. 195, Criminal Procedure Code.\n\nIn iupport of this appeal Mr. Garg submitted, in the first place, that the High Court had no justification for interfering with the order of acquittal passed by the Additional Sessio•s Judge and that it has not applied the correct principle in a matter of this description. Learned Counsel took us through the judgments of the High Court and of the trial court and stressed the argument that there was no evidence upon which the High Court reached the finding that the appellants used criminal force against P.Ws I and 2. We arc unable to accept the argument of Mr. Garg as correct. The High Court has mainly relied upon the evidence of P.Ws I, 2 and 3 and P.Ws 9 to 13 for holding that the appellants used criminal force against P.Ws I and 2.\n\nThe High Court has also observed that P.W. 2 was entrusted with the execution of the writ of attachment. He was also entrusted with the official cheque book (Ex. 5) to give the receipt in token of payment of the dccretal dues.\n\nIn the co11rse of his official business P.W. 2 was carrying the money realised from the judgment-debtors for necessary deposit in Court.\n\nSo far as P.W. I was concerned, he was deputed to render assistance to P.W. 2 in executing the writ of attachment. ll is manifest that both P.Ws. I and 2 were assaulted by the appellants when they\n\nB ' t\n\n• D\n\nwere discharging their duties as public servants. The High Court has also accepted the evidence of P.W. I that Durga Charan caught hold of his hands and demanded money on the threat of assault.\n\nP.W. 2, the process server stated that Bipra Charan and Jugal caught hold of his hands and Durga Charan told him that he would not let anybody go unless the money was returned. P.W. 2 added that Bipra and Jugal also snatched away his bag. The High Court analysed the evidence of P.Ws 9 to 13 and reached the conclusion that the appellants used criminal force against P.Ws I and 2 in the course of the performance of their duties. Ille Hii:h Court Juu; also dealt with the reasoning of the trial court and has pointed out that the order of acquittal of the appellants with regard to s. 353, Indian Penal Code was not justified. In Sanwat Singh &\n\nOthers v. State of Rajasthan(1) it was pointed out by this Court that an appellate court has full power to review the evidence upofl which the order of acquittal is founded and that the principles laid down by the Judicial Committee in Sheo Swarup's case (2) afford a correct guide for the appellate court's apJilroach to a case disposing of such an appeal. It was further observed that different phraseology\n\nullCd in the judgments of this Court, such as \"substantial and compelling reasons\", \"good and sufficiently cogent reasons\" and \"strong reasons\" are not intended to curtail the undoubted power of an appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of its order of acquittal in arriving at a conclusion on those facts, but should express the reasons in its judgment, which led it to hold that the acquittal was not justified. The same opinion has been expressed by this Court in a later decision in M. G. Agarwal and M. K. Kulkarni v. State of Maharashtra (3). It was pointed out in that case that there is no doubt that the power conferred by\n\ncl. (a) of s. 423(1) which deals with an appeal against an order of acquittal is as wide as the power conferred by cl. (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court's powers in dealing with criminal appeals are equally wide whethertheappeal in question is one against acquittal or against conviction. It was observed that the test suggested by the expression \"substantial and compelling reasons\" for reversing a judgment of acquittal, should not be construed as a formula whicJI.\n\nhas to be rigidly applied in every case, and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse. Tested in the light of these principles laid down by these authorities, we are satisfied that the High Court was justified, in the present case, in interfering with the order of acquittal passed by\n\n(!) [1961] 3 S.C.R. 120.\n\n(2) 61 I.A. 398.\n\n(3) A.l.R. 1963 S.C. 2'JO.\n\nthe Additional Sessions Judge with regard to the charge under s. 353, Indian Penal Code and the judgment of the High Court is not vitiated by any error of law. We accordingly hold that Mr. Garg is unable to make good his argument on this aspect of the case.\n\nWe pass on to consider the next contention of the appellants that the conviction of the appellants under s. 353, Indian Penal Code is illegal because there is a contravention of s. 195(1) of the Criminal Procedure Code which requires a complaint in writing by the process server or the A.SJ. It was submitted that the charge under s. 353, Indian Penal Code is based upon the same facts as the charge under s. 186, Indian Penal Code and no cognizance could be taken of the offence under s. 186, Indian Penal Code unless there was a complaint in writing as required by s. 195(1) of the Criminal Procedure Code. It was argued that the conviction under s. 353, Indian Penal Code is tantamount, in the circum- 'tances of this case, to a circumvention of the requirement of s. 195(1) of the Criminal Procedure Code and the conviction of the appellants under s. 353, Indian Penal Code by the High Court was, therefore, vitiated in law. We axe unable to accept this argument as correct. It is true that most of the allegations in this case upon which the charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that ss. 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences arc also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under s. 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with Contempts of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well-established that s. 195 of the Criminal Procedure Code docs not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section. In Satis\n\nChandra Chakravarti v. Ram Dayal De(1) it was held by Full Bench of the Calcutta High Court that where the maker of a single statement is guilty of two distinct offences, one under s. 211, Indian Penal Code, which is an offence against public justice, and the other an offence under s. 499, wherein the personal element largely predominates, the offence under the latter section can be taken cognizance of without the sanction of the court concerned, as the Criminal Procedure Code has not provided for sanction of court\n\n(I) 24 C.W.N. 982.\n\n\\ '\n\nfor taking cognizance of that offence. It was said that the two offences being fundamentally distinct in nature, could be separately taken cognizance of. That they are distinct in character is patent from the fact that the former is made non-compoundable, while the latter remains compoundable; in one for the initiation of the proceedings the legislature requires the sanction of the court under s. 195, Criminal Procedure Code, while in the other, cognizance can be taken of the offence on the complaint of the person defamed.\n\nIt is pointed out in the Full Bench case that where upon the facts the commission of several offences is disclosed some of which require sanction and others do not, it is open to the complainant to proceed in respect of those orily which do not require sanction; because to hold otherwise would amount to legislating and adding very materially to the provisions of ss. 195 to 199 of the Code of Criminal Procedure. The decision of the Calcutta case has been quoted with approval by this Court in Basir-ul-Huq and Others v. The State\n\nof West Bengal (1) in which it was held that if the allegations made in a false report disclose two distinct offences, one against a public servant and the other against a private individual, the latter is not debarred by the provisions of s. 195, Criminal Procedure Code, from seeking redress for the offence committed against him.\n\nIn the present case, therefore, we are of the opinion that s. 195, Criminal Procedure Code does not bar the trial of the appellants for the distinct offence under s. 353 of the Indian Penal Code, though it is practically based on the same facts as for the prosecution under s. 186, Indian Penal Code.\n\nReference may be made, in this connection, to the decision of the Federal Court in Hori Ram Singh v. The Crown (2). The appellant in that case was charged with offences under ss. 409 and 477-A, Indian Penal Code. The offence under s. 477-A could not be taken cognizance of without the previous consent of the Governor under s. 270(1) of the Constitution Act, while the consent of the Governor was not required for the institution of the proceedings under s. 409, Inidan Penal Code. The charge was that the accused dishonestly misappropriated or converted to his own use certain medicines entrusted to him in his official capacity as a sub-assistant surgeon in the Punjab Provincial Subordinate Medical Service. He was further charged that being a public servant, he wilfully and with intent to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession. The proceedings under s. 477-A were quashed by the Federal Court for want of jurisdiction, the consent of the Governor not having been obtained, but the case was sent back to the sessions judge for hearing on the merits as regards the charge under s. 409, Indian Penal\n\n(1) [1953] S.C.R. 836.\n\n(2) [1939] F.C.R. 159 .\n\nSUPRBMB COURT REPORTS\n\n(1966] 3 S.C.R.\n\nCode, and the order of acquittal passed by the sessions judge under that charge was set aside. Two distinct offences having been committed in the same transaction, one an offence of misappropriation under s. 409 and the other an offence under s. 477-A which required the sanction of the Governor, the circumstance that cognizance could not be taken of the latter offence without such consent was not considered by the Federal Court as a bar to the trial of the appellant with respect to the offence under s. 409.\n\nWe have expressed the view that s. 195, Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of facts and which is not included within the ambit of the section, but we must point out that the provisions of s. 195 cannot be evaded by resorting to devices or camouflage. For instance, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned ins. 195, Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of s. I 95 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it. On behalf of the appellants Mr. Garg suggested that the prosecution of the appellants under s. 353, Indian Penal Code was by way of evasion of the requirements of s. 195, Criminal Procedure Code. But we are satisfied that there is no substance in this argument and there is no camouflage or evasion in the present case.\n\nFor these reasons we hold that the judgment of the High Court dated March 2, 1964 must be affirmed and this appeal must be dismissed.\n\nAppeal dismissed.", "total_entities": 161, "entities": [{"text": "DURGACHARAN NAIK AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "DURGACHARAN NAIK AND ORS", "offset_not_found": false}}, {"text": "STATE OF ORISSA", "label": "RESPONDENT", "start_char": 27, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "STATE OF ORISSA", "offset_not_found": false}}, {"text": "February 23, 1966", "label": "DATE", "start_char": 44, "end_char": 61, "source": "ner", "metadata": {"in_sentence": "STATE OF ORISSA\n\nFebruary 23, 1966."}}, {"text": "K. SUBBA RAO Al'D V. RAMASWAMI, JJ", "label": "JUDGE", "start_char": 65, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "V. 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Khanna", "label": "OTHER_PERSON", "start_char": 2326, "end_char": 2335, "source": "ner", "metadata": {"in_sentence": "R. Khanna and R. N. Sachthey, for the respondent ..\n\n• ."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 2340, "end_char": 2354, "source": "ner", "metadata": {"in_sentence": "R. Khanna and R. N. Sachthey, for the respondent ..\n\n• ."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 2432, "end_char": 2441, "source": "ner", "metadata": {"in_sentence": "' ;\n\nThe Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgment of the Orissa High Court dated March 2, 1964 in Government Appeal No."}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 2513, "end_char": 2530, "source": "ner", "metadata": {"in_sentence": "' ;\n\nThe Judgment of the Court was delivered by Ramaswami, J. 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{"confirmed_by_gazetteer": true}}, {"text": "s. 195(1)", "label": "PROVISION", "start_char": 12463, "end_char": 12472, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 353", "label": "PROVISION", "start_char": 12547, "end_char": 12553, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 12555, "end_char": 12572, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 353", "label": "PROVISION", "start_char": 12755, "end_char": 12761, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 12763, "end_char": 12780, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 186", "label": "PROVISION", "start_char": 12842, "end_char": 12848, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 12850, "end_char": 12867, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 186 and 353", "label": "PROVISION", "start_char": 12898, "end_char": 12913, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 12915, "end_char": 12932, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 186", "label": "PROVISION", "start_char": 13136, "end_char": 13147, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 13149, "end_char": 13166, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 353", "label": "PROVISION", "start_char": 13299, "end_char": 13305, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 13307, "end_char": 13324, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 186", "label": "PROVISION", "start_char": 13492, "end_char": 13503, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 13527, "end_char": 13544, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 353", "label": "PROVISION", "start_char": 13618, "end_char": 13624, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 195", "label": "PROVISION", "start_char": 13720, "end_char": 13726, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 13993, "end_char": 14012, "source": "ner", "metadata": {"in_sentence": "In Satis\n\nChandra Chakravarti v. Ram Dayal De(1) it was held by Full Bench of the Calcutta High Court that where the maker of a single statement is guilty of two distinct offences, one under s. 211, Indian Penal Code, which is an offence against public justice, and the other an offence under s. 499, wherein the personal element largely predominates, the offence under the latter section can be taken cognizance of without the sanction of the court concerned, as the Criminal Procedure Code has not provided for sanction of court\n\n(I) 24 C.W.N. 982."}}, {"text": "s. 211", "label": "PROVISION", "start_char": 14102, "end_char": 14108, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 14110, "end_char": 14127, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 499", "label": "PROVISION", "start_char": 14204, "end_char": 14210, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 195", "label": "PROVISION", "start_char": 14865, "end_char": 14871, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 14873, "end_char": 14896, "source": "regex", "metadata": {}}, {"text": "ss. 195 to 199", "label": "PROVISION", "start_char": 15363, "end_char": 15377, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 15385, "end_char": 15411, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Calcutta", "label": "GPE", "start_char": 15433, "end_char": 15441, "source": "ner", "metadata": {"in_sentence": "The decision of the Calcutta case has been quoted with approval by this Court in Basir-ul-Huq and Others v. The State\n\nof West Bengal (1) in which it was held that if the allegations made in a false report disclose two distinct offences, one against a public servant and the other against a private individual, the latter is not debarred by the provisions of s. 195, Criminal Procedure Code, from seeking redress for the offence committed against him."}}, {"text": "s. 195", "label": "PROVISION", "start_char": 15772, "end_char": 15778, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 15780, "end_char": 15803, "source": "regex", "metadata": {}}, {"text": "s. 195", "label": "PROVISION", "start_char": 15925, "end_char": 15931, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 15933, "end_char": 15956, "source": "regex", "metadata": {}}, {"text": "s. 353", "label": "PROVISION", "start_char": 16029, "end_char": 16035, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 16043, "end_char": 16060, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 186", "label": "PROVISION", "start_char": 16140, "end_char": 16146, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 16148, "end_char": 16165, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 409 and 477", "label": "PROVISION", "start_char": 16343, "end_char": 16358, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 16362, "end_char": 16379, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 477", "label": "PROVISION", "start_char": 16399, "end_char": 16405, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 270(1)", "label": "PROVISION", "start_char": 16492, "end_char": 16501, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 409", "label": "PROVISION", "start_char": 16623, "end_char": 16629, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Inidan Penal Code", "label": "STATUTE", "start_char": 16631, "end_char": 16648, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Punjab Provincial Subordinate Medical Service", "label": "ORG", "start_char": 16832, "end_char": 16877, "source": "ner", "metadata": {"in_sentence": "The charge was that the accused dishonestly misappropriated or converted to his own use certain medicines entrusted to him in his official capacity as a sub-assistant surgeon in the Punjab Provincial Subordinate Medical Service."}}, {"text": "s. 477", "label": "PROVISION", "start_char": 17126, "end_char": 17132, "source": "regex", "metadata": {"linked_statute_text": "Inidan Penal Code", "statute": "Inidan Penal Code"}}, {"text": "s. 409", "label": "PROVISION", "start_char": 17352, "end_char": 17358, "source": "regex", "metadata": {"linked_statute_text": "Inidan Penal Code", "statute": "Inidan Penal Code"}}, {"text": "[1939] F.C.R. 159", "label": "CASE_CITATION", "start_char": 17402, "end_char": 17419, "source": "regex", "metadata": {}}, {"text": "SUPRBMB COURT", "label": "COURT", "start_char": 17423, "end_char": 17436, "source": "ner", "metadata": {"in_sentence": "SUPRBMB COURT REPORTS\n\n(1966] 3 S.C.R.\n\nCode, and the order of acquittal passed by the sessions judge under that charge was set aside."}}, {"text": "s. 409", "label": "PROVISION", "start_char": 17668, "end_char": 17674, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 477", "label": "PROVISION", "start_char": 17706, "end_char": 17712, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 409", "label": "PROVISION", "start_char": 17968, "end_char": 17974, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 195", "label": "PROVISION", "start_char": 18009, "end_char": 18015, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 18017, "end_char": 18040, "source": "regex", "metadata": {}}, {"text": "s. 195", "label": "PROVISION", "start_char": 18269, "end_char": 18275, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 18692, "end_char": 18709, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 18807, "end_char": 18830, "source": "regex", "metadata": {}}, {"text": "s. 353", "label": "PROVISION", "start_char": 19161, "end_char": 19167, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 19169, "end_char": 19186, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 195", "label": "PROVISION", "start_char": 19232, "end_char": 19238, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 19240, "end_char": 19263, "source": "regex", "metadata": {}}, {"text": "March 2, 1964", "label": "DATE", "start_char": 19458, "end_char": 19471, "source": "ner", "metadata": {"in_sentence": "For these reasons we hold that the judgment of the High Court dated March 2, 1964 must be affirmed and this appeal must be dismissed."}}]}
{"document_id": "1966_3_643_648_EN", "year": 1966, "text": "D ' _,\n\nLAKHAN MAHTO & ORS. v.\n\nSTATE OF BIHAR February 24, 1966 (K. SUBBA RAo AND V. RA.MAsWAMI, JJ.]\n\nCode of Criminal Procedure (Act 5 oJ 1898), s. 423-Appial azainst conviction, no appeal again.rt acquittal-Power of Apllate Court.\n\nIndian Penal Code, 1860 (Act 45 of 1860), s. 149-Substantive offence, if.\n\nThe trial court acquitted L, one of the appellantls of the charge under s. 302 I.P.C. but convicted him and the other appellants under s. 149 I.P.C. and ss. 302/ 149 I.P.C. 'The State Government did not prefer an appeal to the High Court against the acquittal of L under s. 302 but on appeal preferred by L against his conviction, the High Court altered the conviction from s. 302/ 149 to a minor offence under s. 326 and maintained the sentence of life imprisonment imposed upon him. In appeal to this Court : HELD : The High Court acted without jurisdiction in altering the finding of acquittal of L on the charge under s. 302 I.P .C. and convicting him on the charge under s. 326 I.P.C. and imposing a sentence of imprisonment on that charge.\n\nIf an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the O<\"dCf' of conviction that falls to be considered by the Appellate Court and not the order of acquittal. In exercising tho powers conferred by s. 423(1) (b) of Code of Criminal Procedure the High Court could not convert the order of the acquittal into one of conviction and that result can be achieved only by adopting procedure prescribed under s. 439 of the Criminal Procedure Code.\n\n[647 D-FJ State of Andhra Pradesh v. Thadi N<JTayana, A.I.R. 1962 S. C. 240. applied.\n\nThe High Court erred in taking the view that s. 149 I.P.C. did not constitute a substantive offence and that it was only an enabling oection for imposition of vicarious liability and that the conviction on vicarious liability could, therefore, be altered by the appellate court to conviction for direct liability even though there wa• an acquittal by the trial court of the direct liability for the offence. There is a legal distinction between a charge under s. 302 I.P.C. and a charge of constructive liability under s. 302/ 149, I.P.C., i.e., being a member of an unlawful assembly, the common object of which was to kill a person.\n\n[647 G, HJ Barendra Kumar Ghosh v. Emperor, I.L.R. 52 Cal. 197, Queen v. $abid Ali and Ors. [1873] 20 W.R. (Cr.) 5 Nanak Chand'\"· State of Pu,.. ; ah, [1955] 1 S.C.R. 1201 and Suraj Pal v. State of Uttar Pradesh, [1955] 1 S.C.R. 1332, referred to.\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 214 of 1963.\n\nAppeal by special leave from the judgment and order dated September 18, 1963 of the Patna High Court in Criminal Appeal No. 368 of 1961.\n\n~44 SuPREME COURT REPORTS\n\n(1966] 3 S.C.R.\n\nNur-ud-din Ahmed and D. Goburdhun, for the appellants.\n\nThe respondent did not appear.\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. This appeal is brought, by special leave, from the judgment of the High Court of Patna dated September, 1963 in Criminal Appeal No. 368 of 1961.\n\nThe appellant, alongwith 13 others, was tried by the Additional Sessions Judge of Patna who by his judgment dated April 22, 1961 convicted all the accused under ss. 302/149, Indian Penal Code and sentenced them to undergo rigorous imprisonment for life.\n\nLakhan and Indo were convicted under s. 148, Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and Gopi was convicted under s. 147, Indian Penal Code and sentenced to rigorous imprisonment for one year. Inda was also convicted under s. 326, Indian Penal Code and Gopi was convicted under s. 326/109, Indian Penal Code and were sentenced to undergo rigorous imprisonment for eight years. Appellant Lakhan was convicted under ss. 326/149, Indian Penal Code but no separate sentence was awarded on this charge.\n\nLakhan and I ndo were convicted under s.19(f) ofthe Arms Act and sentenced to undergo rigorous imprisonment for two years each. Five of the accused persons were acquitted and 8 of them were convicted on charges under ss. 302/149, 326/149, 148 and 147, Indian Penal Code.\n\nThe appellants alongwith 8 others who were so convicted, appealed to the High Court of Patna which allowed the appeal of the 8 persons but dismissed the appeal of the appellants with the following modifications: The conviction of the appellants under ss. 302/149, Indian Penal Code, s. 148, s. 147 and ss. 326/149, Indian\n\nPenal Code was set aside and the appellants were acquitted of those charges. The conviction of Lakhan under s. 302/149, Indian Penal Code was altered into a minor offence under s. 326, Indian Penal Code, but the sentence of life imprisonment imposed upon him was maintained. The conviction and sentence of Inda under a. 326, Indian Penal Code and of Gopi under ss. 326/109, Indian\n\nPenal Code were upheld. The conviction and sentence of Lakhan and Inda under s. 19(f) of the Arms Act were also upheld.\n\nThe case of the prosecution is that on October, 7, 1959 at about 10 a.m. deceased Sheosahay Mahto went to look after his paddy field in Belwa Khandha. On arriving at the spot, he found appellant Lakhan and one Ishwar putting up a net for catching fish in his field after cutting one of its ridges. Sheosahay protested and there was an altercation between the parties. Sheosahay threw aside the net and Ishwar and appellant Lakhan went away towards the village. Sheosahay then repaired the ridge of the\n\n_,_ __\n\nF ~·\n\nH •\n\n• B\n\nl D\n\nfield and after weeding some grass he was returning to the village along the Bazerachak Road. While he was passing by the si.de f a brick-kiln, appellant Lakhan suddenly emerged from behind t with a pistol in his hand and fired at Sheosahay hitting him on his chest. Sheosahay staggered for a few steps and fell down at the house of one Baiju. There were 15 or 20 other persons vaously armed in the company of Lakhan. Mst. Akhji P.W. 3 wife of Jitu P.W.7 heard the report of a gunfire while she was in her house situated near the house of Baiju. She came out of her house and saw Sheosahay lying fallen in the village Jane. She protested to Gopi who became furious and ordered that she should be assaulte~.\n\nUpon his order, Rajendra who was carrying a gun fired at AkhJI, P.W.3 on her left arm. After committing the assault all the members of the mob fled away. On the same evening, at about 5 p.m. a first information report was drawn up by the Assistant Sub-\n\nInspector of Police, P.W. 14 on the statement of Sheosahay and both the injured persons were forwarded to Nawadah hospital where Sheosahay died early next morning.\n\nThe appellants pleaded not guilty to the charges and alleged that they were falsely implicated on account of previous enmity.\n\nThe trial court held that it was unsafe to convict appellant Lakhan on the specific charge under s. 302, Indian Penal Code for causing the death of Sheosahay as it appeared from the dying declaration of the deceased (Ex. 8) that accused Ishwar had also shot at him and as such appellant Lakhan was entitled to benefit of doubt.\n\nThe trial court accordingly acquitted Lakhan on the charge under s.302, Indian Penal Code but convicted him and 2 other appellants under s. 148, Indian Penal Code and ss. 302/149, Indian Penal Code. The State Government did not prefer an appeal to the High Court against the acquittal of Lakhan on the charge under s. 302, Indian Penal Code but on appeal preferred by the appellant against the judgment of the Sessions Judge, the High Court altered the conviction of Lakhan from s. 302/149, Indian Penal Code to a minor offence under s. 326, Indian Penal code and maintained the sentence of life imprisonment imposed upon him. The view taken by the High Court was that the evidence of P.Ws. l, 6, 7 and 8 should be accepted as true and it must he held that it was Lakhan who fired the pistol at the deceased and it was Lakhan alone who fired the pistol shot and not lshwar. The High Court held that it was competent to it in the appeal preferred by the appellant to alter the conviction of Lakhan from the constructive offence under s. 302/149, Indian Penal Code to the substantive offence under s.302, Indian Penal Code, but \"in order. to obviate any technical objection\" the High Court altered the conviction under s.302 read with s. 149 to a minor offence under s. 326, Indian Penal Code and regard being had to the gravity of the offence, the High Court maintained the sentence imposed upon Lakhan.\n\n646 SUPllBME COUil T REPOll TS\n\n(1966] 3 S.C.R.\n\nOn behalf of appellant Lakhan learned Counsel submitted that he had been acquitted by the trial court on the specific charge under s. 302, Indian Penal Code for the overt act of shooting at the deceased Sheosahay and he was convicted under ss. 302/149, Indian Penal Code for being a member of an unlawful assembly, the common object of which was to kill deceased Sheosahay. It was pointed out that the State Government had not preferred an appeal against the acquittal of Lakhan on the charge under s. 302, Indian Penal Code. It was submitted that the High Court cannot, in the absence of an appeal preferred in this behalf, convict Lakhan again under s. 302, Indian Penal Code or under s. 326, Indian Penal Code for the overt act of shooting. It was also pointed out for the appellant that there was the finding of the High Court that there was no unlawful assembly and consequently Lakhan was acquitted of the charge under s. 302, l.P.C. read with s. 149, 1.P.C. The argument, therefore, presented on behalf of appellant Lakhan is that the conviction and sentence of Lakhan for a substantive offence under s. 326, I.P.C. was illegal and must be quashed.\n\nThe powers of the appellate court in disposing of an appeal are D prescribed by s. 423 of the Criminal Procedure Code which states :\n\n\"423.(l) The Appellate Court shall then send for the record of the case, if such record is not already in Court.\n\nAfter perusing such record, and hearing the appellant or his pleader if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 411-A, sub- J: section (2) or section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-\n\n(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;\n\n(b) in an appeal from conviction, (I) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (2) alter the finding maintaining the sentence or, with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, sub-section (3), not so as to enhance the same;\"\n\nSection 423(l)(a) expressly deals with an appeal from an order of acquittal and it empowers the Appellate Court to reverse the\n\n• B\n\norder of acquittal and direct that further inquiry be made or that the accused may be tried or committed for trial, as the case may be, or it may find him guilty and pass sentence on him according _to law. Section 423(l)(b) in terms deals with an appeal from a con\".1ction, and it empowers the Appellate Court to reverse the findi!1g and sentence and acquit or discharge the accused or order a retnal by a Court of competent jurisdiction subordinate to such Appellate Court or , committed for trial. It has been held by this Court in The State of Andhra Pradesh v. Thadi Narayana(I) that s. 423(l)(b), Criminal Procedure Code is clearly confined to cases of appeals preferred against orders of conviction and sentence, and that the powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged while dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved. It was also pointed out in that case that where several offences are charged against an accused person the trial is no doubt one; but where the accused person is acquitted of some offences and convicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the Appellate Court.\n\nIf an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction that falls to be considered by the Appellate Court and not the order of acquittal. In exercising the powers conferred by s. 423(1 )(b) the High Court cannot therefore convert the order of acquittal into one of conviction and that result can be achieved only be adopting procedure prescribed under s. 439 of the Criminal Procedure Code. In our opinion, the principle of this decision applies to the present case and it must accordingly be held that the High Court acted.without jurisdiction in altering the finding of acquittal of Lakhan on the charge under s. 302, Indian Penal Code and convicting him on the charge under s. 326, Indian Penal Code and imposing a sentence of imprisonment on that charge.\n\nIn this connection the High Court has taken the view that s. 149, I.P.C. does not constitute a substantive offence and it was only an enabling section for imposition of vicarious liability and the conviction on vicarious liability can, therefore, be altered by the appellate court to conviction for direct liability, though there was an acquittal by the trial court of the direct liability of the offence. In our opinion, the view taken by the High Court is not correct. There is a legal distinction between a charge under s. 302, I.P.C. and a charge of constructive liability under ss. 302/149, I.P.C., i.e., being a member of an unlawful assembly, the common object of which was to kill the deceased Sheosahay.\n\nIn Barendra Kumar Ghosh v. Emperor (2) Lord Sumner dealt with\n\n(I) A.l.R. 1962 S.C. 240.\n\n(2) I.LR. 52 Cal. 197.\n\n'648\n\nSUPREME COURT RBPORTS\n\n(1966] 3 S.C.R.\n\nthe agrument that if s. 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then ss. 114 and 149 of that Code would be otiose. In the opinion of Lord Sumner, however, s. 149 was certainly not otiose, for in any case it created a specific and distinct offence. It postulated an assembly of five or more persons having a common object, as named in s. 141 of the Indian Penal Code and then the commission of an offence by one member of it in prosecution of that object. Lord Sumner referred, in this connection, to the decision of the Calcutta High Court in Queen v. Sabid Ali and Others('). The observation of Lord Sumner was quoted with approval by this Court in Nanak Chand v. The State of Punjah(2) in which it was pointed out that by framing a charge under s. 302, read with s.149, Indian Penal Code against the appellant it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under s. 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged. It was accordingly held that the conviction 0f the appellant under s. 302, l.P.C. was illegal. The same 'iew has been reiterated by this Court in a later case in Suraj Pal v. The State of Utlar Pradesh.(')\n\nFor these reasons we hold that the conviction and sentence imposed by the High Court on Lakhan under s. 326, Indian Penal Code is illegal and must be set aside.\n\nOn behalf of the appellants it was also contended that the prosecution had not been able to establish the other charges of E which they have been convicted, but having heard learned Counsel we are not satisfied that the convictions on the other charges are vitiated by any illegality and we see no reason for interfering with the judgment of the High Court.\n\nAs already pointed out, we set aside the conviction and sentence imposed on Lakhan on the charge under s. 326, Indian Penal Code; F otherwise we affirm the decision of the High Court as regards Lakhan and also as regards the other two appellant~ and dismiss this appeal.\n\n(I) (1873) 2il W.R. (Cr.) 5.\n\n(2) (1955) 1 S.C.R. 12ill.\n\n(l) (1955) 1 S.C.R. 1332\n\nAppeal dismissed.\n\nConviction and sentence modified.\n\n< '\n\n' •", "total_entities": 161, "entities": [{"text": "LAKHAN MAHTO & ORS", "label": "PETITIONER", "start_char": 8, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "LAKHAN MAHTO & ORS", "offset_not_found": false}}, {"text": "STATE OF BIHAR", "label": "RESPONDENT", "start_char": 32, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "STATE OF BIHAR", "offset_not_found": false}}, {"text": "1966 (K. SUBBA RAo", "label": "JUDGE", "start_char": 60, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "K. 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{"document_id": "1966_3_649_656_EN", "year": 1966, "text": "A '\n\n• B .\n\nMUNICIPAL CORPORATION OF DELlll v.\n\nSUBHAGWANTI & OTHERS\n\n(With connected Appeals) February 24, 1966 [K. SUBBA RAO AND V. RAMAsWAMI, JJ.]\n\nNegligence-Clock tower belonging to Mnicipal Comm!ttee fallin~ Causing death of persons by-Whether doctrine of res ipsa loq'!'tu_r applies-Fatal Accidents Act, 1885, s. l-Damages-Quantum-Prmc1ples for determining.\n\nThree suits for damages were filed by the respondents as heirs of thr~ persons who died as a result of the collapse of the Clock Tower m Chandni Chowk, Delhi, belonging to the appellant-Corporation, formerly the Municipal Committee of Delhi. The trial court held that it was the duty of the Municipal Committee to take proper care of buildings so that they should not prove a source of danger to persons using the highway as a matter of right, and granted decrees of Rs. 25,000, Rs. 15,000 and 20,000 respectively to the plaintifl'> in each of the three suits.\n\nOn appeal to the High Court, although the decree for Rs. 25,000 in one of the suits was maintained, the amounts of Rs. 15,000 ancl Rs. 20,000\n\nin the other two decrees were reduced to Rs. 7,200 and Rs. 9,000 respectively. The High Court held that the principle of res ipsa /oquitur applied to the case and considered that it was the duty of the Municipal Committee to carry out periodical examination for the purpose of determining whether deterioration had taken place in the structure of the building and whether any precaution was necessary to strengthen it. Apart from superficial examination from time to time. there was no evidence of an exami:.. nation ever made with a view to seeing if there were any latent defects making the building unsafe.\n\nIn the appeal to this Court, it was contended on behalf of the appellant that the High Court was wrong in applying the doctrine of res lpsa /oquitur to this case and that the fall of the clock tower was due to an inevitable accident which could not have been prevented by the exercise of reasonable care or caution; that since the defects which led to the collapse were latent, the appellant cGuld not be held guilty of negligence, and that in any event the damages awarded were excessive.\n\nHELD : The High Court was right in applying the doctrine res ipsa loquitur as in the circumstances of the case the mere fact that there was a fall of the clock tower, which was exclusively under the ownership and control of the appellant, would justify raising an inference of negli- &enco so as to establish a prima facie case against the appellant.\n\n[652 F, HI\n\nThere is a special obligation on tho owner of adjGining premises for the safety of the structures which he keeps besides the highway. If these atructures fall into disrepair so as to be of potential danger to the passersby or to be a nuisance, the owner is liable to anyone using the highway who is injured by reason of the disrepair. In such a case it is no defence for the owner to prove that he neither knew nor ought to have known al the danger. Jn other words, the owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect.\n\n[653 E-G]\n\n\nSUPREME COURT REPORTS\n\n[ 1966] 3 S.C.R.\n\nWrlnge v. Cohen, [1940] 1 K.B. 229, Mint v. Good,\n\n[19511 1. K:.B.\n\nA 517 and Wal.sh v. Holst and Co. Ltd. and OTI. [1958] 1 W.LR. 800, referred to.\n\nThe High Coun had applied the correct principles in estimation of the damages in all the three appeals.\n\nDavia v. Powell Dufjreifl Assoclo!ed Collieries Ltd. [19421 A. C. 601 and Nance v. Briti<h Columbia Electric Rm/way Company Lrd. 11951] B A.C. 601, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1102-1104 of 1963.\n\nAppeals from the judgments and decrees dated November 27, 1959 of the Punjab High Court (Circuit Bench) at Delhi in Civil Regular First Appeals Nos. 69-D, 71-D and 85-D of 1963.\n\nBishan Narain, Sardar Balradur and Arun B. Saharya, for the appellant (in all the appeals).\n\nN.D. Bali and Din Dayal Sharma, for the respondents (in C. As. Nos. 1102 and 1103of1963).\n\n.A.G. Ratnaparkhi, for respondent (in C.A. No. 1104 of 19e3).\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. These appeals arise out of 3 suits for damages filed by the heirs of three persons, namely Shri Ram Parkash, Shrimati Panni Devi and Sant Gopi Chand who died as a result of the collapse of the Clock Tower situated opposite the Town Hall in the main Bazar of Chandi Chowk, Delhi belonging to the appellant-Corporation, formerly the Municipal Committee of Delhi.\n\nSuit No. 552of1952 was filed by the heirsofShri RamParkash, suit No. 930 of 1951 was filed by the heirs of Smt. Panni Devi and suit No. 20 of 1952 was filed by Kuldip Raj whose father, Gopi Chand was killed hy the fall of the Clock Tower. All the suits were tried by the Court of Subordinate Judge, !st Class, Delhi who disposed of all the suits by a common judgment dated July 9, 1953. The Subordinate Judge granted a decree for a sum of Rs. 25,000 to Shrimati Subhagwnti and other heirs of Ram Parkash in suit No. 552 of 1952, a sum of Rs. 15,000 to the heirs of Shrimati Panni Devi in suit No. 930 of 1951 and a sum of Rs. 20,000 to Kuldip Raj in suit No. 20 of 1952. It was held by the trial court that it was the duty of the Municipal Committee to take proper care of buildings, so that they should not prove a source of danger to persons using the highway as a matter of right. The trial court rejected the plea of the Municipal Committee that in the case of latent defects it could not be held liable and the Municipal Committee, as the owner of the buildings abutting on the highway, was liable in negligence if it did not take proper care to maintain the buildings in a safe condition. It was submitted against\n\n,, .\n\n• B ' r\n\n• H\n\nthe Municipal Committee before the trial court that, apart from superficial examination of the Clock Tower from time to time by the Municipal Engineer, no examination was ever made with a view to seeing if there were any latent defects making it unsafe.\n\nAggrieved by the decree of the trial court, the Municipal Committee filed appeals in the High Court in all the three suits. On November 27, 1959 the High Court disposed of all the appeals by a common judgment. The decree for Rs. 25,000 in suit No. 552 of 1952 was maintained, the amount of Rs. 15,000 awarded in suit No. 930of1951 in favour of Munshi Lal and others was reduced to Rs. 7,200, and the amount of Rs. 20,000 awarded in suit No. 20 of 1952 was reduced to Rs. 9,000. The High Court held that the principle of res ipsa loquitur applied to the case. The High Court considered that it was the duty of the Municipal Committee to carry out periodical examination for the purpose of determining whether deterioration had taken place in the structure and whether any precaution was necessary to strengthen the building. The High Court mainly relied on the evidence of Shri B. S. Puri, Retired Chief Engineer, P.W.D., Government of India who was invited by the Municipal Committee to inspect the Clock Tower after its collapse and who was produced by them as their witness. Tp.e facts disclosed in his statement and that of Mr. Chakravarty, the Municipal Engineer were that the building was 80 years old and the life of the structure of the top storey, having regard to the type of mortar used, could be only 40 to 45 years and the middle storey could be saved for another 10 year~. The High Court also took into consideration the statement of Mr. Puri to the effect thal the collapse of the Clock Tower was due to thrust of the arches on the top portion. Mr. Pnri was of the opinion that if an expert had examined this building specifically for the purpose he might have found out that it was likely to fall. The witness further disclosed that when he inspected the building after the collapse and took the mortar in his hands he found that it had deteriorated to such an extent that it was reduced to powder without any cementing properties.\n\nThese appeals are brought by the Municipal Corporation of Delhi against the decree of the High Court dated November 27, 1959 in First Appeals No. 69-D of 1953, No. 71-D of 1953 and No. 85-D of 1953.\n\nThe main question presented for determination in these appeals is whether the appellant was negligent in looking after and maintaining the Clock Tower and was liable to pay damages for the death of the persons resulting from its fall.\n\nIt w!ls contended, in the first place, by Mr. Bishen Narain on behalf of the appellant that the High Court was wrong in applying the doctrine of res ipsa loquitur to this case. It was argued that the fall of the Clock Tower was due to an inevitable accident which could not have been prevented\n\n652 SUPUME cour.r RBPOl.TS\n\n[1966] 3 S.C.R.\n\nby the exercise of reasonable care or caution. It was also submitted that there was nothing in the appearance of the Clock Tower which should have put the appellant on notice with regard to the probability of danger. We are unable to accept the argument of the appellant as correct. It is true that the normal rule is that it is for the plaintiff to prove negligence and not for the defendant to disprove it.\n\nBut there is an exception to this rule which applies where the circumstances surrounding the thing which causes the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the defendant's part. The principle has been clearly stated in Halsbury's Laws of England, 2nd Edn., Vol. 23, at p. 671 as follows:\n\n\"An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant'snegligence, or where the event charged as negligence 'tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part.\"\n\nIn our opinion, the doctrine of res ipsa /oquitur applies in the circumstances of the present case. It has been found that the Clock Tower was exclusively under the ownership and control of the appellant or its servants. It has also been found by the High Court that the Clock Tower was 80 years old and the normal life of the structure of the top storey of the building, having regard to the kind of mortar used, could be only 40 or 45 years. There is also evidence of the Chief Engineer that the collapse was due to thrust of the arches on the top portion and the mortar was deteriorated to such an extent that it was reduced to powder without any cementing properties. It is also not the case of the appellant that there was any earthquake or storm or any other natural event which was unforeseen and which could have been the cause of the fall of the Clock Tower. In these circumstances, the mere fact that there was fall of the Clock Tower tells its own story in raising an inference of negligence so as to establish a prima facie case against the appellant.\n\n• B\n\nD •\n\nH •\n\n....... •\n\n' I\n\n' ...\n\n- _,./\n\n<::\n\nWe shall proceed to consider the main question involved in this case namely, whether the appellant, as owner of the Clock Tower abutting on the highway, is bound to maintain it in proper state of repairs so as not to cause any injury to any member of the public using the highway and whether the appellant is liable whether the defect is patent or latent. On behalf of the appellant Mr. Bishen Narain put forward the argument that there were no superficial signs on the structure which might have given a warning to the appellant that the Clock Tower was likely to fall.\n\nIt is contended that since the defects which Jed to the collapse of the Clock Tower were latent the appellant could not be held guilty of negligence. It is admitted, in this case, that the Clock Tower was built about 80 years ago and the evidence of the Chief Engineer is that the safe time-limit of existence of the building which collapsed was 40 or 45 years. In view of the fact that the building had passed its normal age at which the mortar could be expected to deteriorate it was the duty of the appellant to carry out careful and periodical inspection for the purpose of determining whether, in fact, deterioration had taken place and whether any precautions\n\nwere necessary to strengthen the building. The finding of the High Court is that there is no evidence worth the name to show that any such inspections were carried out on behalf of the appellant and, in fact, if any inspections were carried out, they were of casual and perfunctory nature. The legal position is that there is a special obligation on the owner of adjoining premises for the safety of the structures which he keeps besides the highway. If these structures fall into disrepair so as to be of potential danger to the passers-by or to be a nuisance, the owner is liable to anyone using the highway who is injured by reason of the disrepair. In such a case it is no defence for the owner to prove that he neither knew nor ought to have known of the danger. In other words, the owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect. In Wringe v. Cohen (!)the plaintiff was the owner of a lock-up shop in Proctor Place, Sheffield, and the defendant Cohen was the owner of the adjoining house. The defendant had let his premises to a tenant who had occupied them for about two years. It appears that the gable end of the defendant's house collapsed owing to a storm, and fell through the roof of the plaintiff's shop. There was evidence that the wall at the gable end of the defendant's house had, owing to want of repair, become a nuisance, i.e., a danger to passers-by and adjoining owners. It was held by the Court of Appeals that the defendant was liable for negligence and that if owing to want of repairs premises on a highway become dangerous and, therefore, a nuisance and a passer-by or an adjoining owner suffers damage by the collapse the occupier or the owner if he has undertaken the duty of repair, is answerable\n\n(I) [1940] 1 K.B. 229.\n\nM11Sup. CI/66-10\n\n1;54 IUPllEME COURT RllPOl.TS\n\n(1966] 3 S.C.R.\n\nwhether he knew or ought to have known of the danger or not.\n\nAt page 233 of the Report Atkinson, J. states:\n\n\"By C-Onunon law it is an indictable offence for an occupier of premises on a highway to permit them to get into a dangerous condition owing to non-repair. It was not and is not necessary in an indictment to aver knowledge or means of knowledge: see Reg. v. Watson ({1703) 2 Ld.\n\nRaym. 856]. In Reg. v. Bradford Navigation Co. [(1865) 6 B. & S. 631, 651] Lord Blackburn (then Blackburn J.) laid it down as a general principle of law that persons who manage their property so as to be a public nuisance are indictable. Jn Attorney-General v. Tod Heatley ((1897) I Ch. 560] it was clearly laid down that there is an absolute duty to prevent premises beC-Oming a nuisance. 'If I were sued for a nuisance, 'said Llndley L. J. in Rapier\n\nv. London Tramways Co. [(1893) 2 Ch. 588, 599], 'and the nuisance is proved, it is no defence on my part to say and to prove that I have taken all reasonable care to prevent it.' ••\n\nThe ratio of this decision was applied by the Court of Appeals in a subsequent case in Mint v. Good (1) and also in Walsh v. Holst and Co. Ltd. and Ors. (2) In our opinion, the same principle is applicable in Indian law. Applying the principle to the present case it is manifest that the appellant is guilty of negligence because of the potential danger of the Clock Tower maintained by it having not been subjected to a careful and systematic inspection which it was the duty of the appellant to carry out.\n\nThe last question is regarding the quantum of damages which requires separate C-Onsideration in each case.\n\nSection 1 of the Fatal Accidents Act, 1855 (Act XIII of 1855) reads:\n\n\"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.or other crime.\n\nEvery such action or suit shall be for the benefit of the wife, husband, parent and child, if any of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the C-Ourt\n\n(I) (1951] I K.B. 517.\n\n(2) (19S8j I W.L.R. IOO\n\n• B\n\n1 I '\n\n• - •\n\nA •\n\n\\ /\n\nc •\n\nmay give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct.\"\n\nThis section is in substance a reproduction of the English Fatal Accidents Acts, 9 and 10 Viet.\n\nCh. 93, known as the Lord Campbell's Acts. The scope of the corresponding provisions of the English Fatal Accidents Acts has been discussed by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. (') At page 617 of the Report Lord Wright has stated the legal position as follows:\n\n\"It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceasea\n\nwas earning, the ascertainment of which to some extent may depend upon the regularity of his employment. Then there. is an estimate of ho\"Y 1; lluch was required or expended for his own personal and livmg expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance that the widow might have again married and thus cea'sed to be dependent, and other like matters of speculation and doubt.\"\n\nThe same principle has been reiterated by Viscount Simon in Nance\n\nv. British Columbia Electric Railway Company Ltd. (2) In the present case of Subhagwanti etc. there is evidence that Ram Parkash deceased was 30 years old at the time of the accident, his widow Subhagwanti being aged about 28 and his son 14 and daughters 12 and 2 years old. The evidence adduced regarding the income of Ram Parkash and the amount of loss caused to his widow and children was not satisfactory but the High Court considered that the widow and children must have been receiving at least a monthly sum of Rs. 150 for their subsistence and for the education of the children from the deceased Ram Parkash. The income was capitalised for a period of 15 years and \\he amount of Rs. 27,000 which was arrived at was more than what the trial court had awarded.\n\nThe High Court accordingly saw no reason for reducing the amount of damages awarded by the trial court. In the case of Tek Chand and bis four children, the High Court has estimated that the pecuni-\n\n(I) [1942] A.C. 601.\n\n(2) [1951] A.C. 601.\n\nSUPREME COUil T 11.EPOll TS [ 1966] 3 S.Cll.\n\nary loss caused by the death of his wife should be taken to be Rs. 40 A p.m. and if a period of 15 years is taken for the purpose of calculating the total sum, the amount will come to Rs. 7,200. Lastly, in the case of Kuldip Raj, the High Court has calculated the pecuniary loss at the rate of Rs. 50 p.m. and the amount of damages calculated for a period of 15 years would come to Rs. 9,000. In our opinion, the High Court has applied the correct principle in esti- B mation of the damages in all the three appeals and learned Counsel has been unable to show that the judgment of the High Court on this aspect of the case is vitiated for any reason.\n\nFor the reasons expressed, we hold that there is no merit in these appeals which are accordingly dismissed with costs.\n\nAppeals dismissed. c\n\ni (\n\n> ..\n\n•..\n\n,.. -", "total_entities": 49, "entities": [{"text": "B .\n\nMUNICIPAL CORPORATION OF DELlll", "label": "PETITIONER", "start_char": 7, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "MUNICIPAL CORPORATION OF DELHI", "offset_not_found": false}}, {"text": "SUBHAGWANTI & OTHERS", "label": "RESPONDENT", "start_char": 48, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "SUBHAGWANTI & OTHERS", "offset_not_found": false}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 114, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "V. RAMAsWAMI, JJ.", "label": "JUDGE", "start_char": 131, "end_char": 148, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Fatal Accidents Act, 1885", "label": "STATUTE", "start_char": 290, "end_char": 315, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 3584, "end_char": 3612, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeals Nos."}}, {"text": "Punjab High Court (Circuit Bench) at Delhi", "label": "COURT", "start_char": 3724, "end_char": 3766, "source": "ner", "metadata": {"in_sentence": "Appeals from the judgments and decrees dated November 27, 1959 of the Punjab High Court (Circuit Bench) at Delhi in Civil Regular First Appeals Nos."}}, {"text": "Bishan Narain", "label": "LAWYER", "start_char": 3833, "end_char": 3846, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, Sardar Balradur and Arun B. Saharya, for the appellant (in all the appeals).", "canonical_name": "Bishan Narain"}}, {"text": "Sardar Balradur", "label": "LAWYER", "start_char": 3848, "end_char": 3863, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, Sardar Balradur and Arun B. Saharya, for the appellant (in all the appeals)."}}, {"text": "Arun B. Saharya", "label": "LAWYER", "start_char": 3868, "end_char": 3883, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, Sardar Balradur and Arun B. Saharya, for the appellant (in all the appeals)."}}, {"text": "N.D. Bali", "label": "LAWYER", "start_char": 3926, "end_char": 3935, "source": "ner", "metadata": {"in_sentence": "N.D. Bali and Din Dayal Sharma, for the respondents (in C. As."}}, {"text": "Din Dayal Sharma", "label": "LAWYER", "start_char": 3940, "end_char": 3956, "source": "ner", "metadata": {"in_sentence": "N.D. Bali and Din Dayal Sharma, for the respondents (in C. As."}}, {"text": ".A.G. Ratnaparkhi", "label": "LAWYER", "start_char": 4017, "end_char": 4034, "source": "ner", "metadata": {"in_sentence": ".A.G. Ratnaparkhi, for respondent (in C.A. No."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 4124, "end_char": 4133, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. These appeals arise out of 3 suits for damages filed by the heirs of three persons, namely Shri Ram Parkash, Shrimati Panni Devi and Sant Gopi Chand who died as a result of the collapse of the Clock Tower situated opposite the Town Hall in the main Bazar of Chandi Chowk, Delhi belonging to the appellant-Corporation, formerly the Municipal Committee of Delhi."}}, {"text": "Ram Parkash", "label": "LAWYER", "start_char": 4234, "end_char": 4245, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. These appeals arise out of 3 suits for damages filed by the heirs of three persons, namely Shri Ram Parkash, Shrimati Panni Devi and Sant Gopi Chand who died as a result of the collapse of the Clock Tower situated opposite the Town Hall in the main Bazar of Chandi Chowk, Delhi belonging to the appellant-Corporation, formerly the Municipal Committee of Delhi.", "canonical_name": "Ram Parkash"}}, {"text": "Panni Devi", "label": "OTHER_PERSON", "start_char": 4256, "end_char": 4266, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. These appeals arise out of 3 suits for damages filed by the heirs of three persons, namely Shri Ram Parkash, Shrimati Panni Devi and Sant Gopi Chand who died as a result of the collapse of the Clock Tower situated opposite the Town Hall in the main Bazar of Chandi Chowk, Delhi belonging to the appellant-Corporation, formerly the Municipal Committee of Delhi."}}, {"text": "Sant Gopi Chand", "label": "OTHER_PERSON", "start_char": 4271, "end_char": 4286, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. These appeals arise out of 3 suits for damages filed by the heirs of three persons, namely Shri Ram Parkash, Shrimati Panni Devi and Sant Gopi Chand who died as a result of the collapse of the Clock Tower situated opposite the Town Hall in the main Bazar of Chandi Chowk, Delhi belonging to the appellant-Corporation, formerly the Municipal Committee of Delhi."}}, {"text": "Delhi", "label": "GPE", "start_char": 4410, "end_char": 4415, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. These appeals arise out of 3 suits for damages filed by the heirs of three persons, namely Shri Ram Parkash, Shrimati Panni Devi and Sant Gopi Chand who died as a result of the collapse of the Clock Tower situated opposite the Town Hall in the main Bazar of Chandi Chowk, Delhi belonging to the appellant-Corporation, formerly the Municipal Committee of Delhi."}}, {"text": "RamParkash", "label": "LAWYER", "start_char": 4548, "end_char": 4558, "source": "ner", "metadata": {"in_sentence": "552of1952 was filed by the heirsofShri RamParkash, suit No.", "canonical_name": "Ram Parkash"}}, {"text": "Kuldip Raj", "label": "OTHER_PERSON", "start_char": 4660, "end_char": 4670, "source": "ner", "metadata": {"in_sentence": "20 of 1952 was filed by Kuldip Raj whose father, Gopi Chand was killed hy the fall of the Clock Tower."}}, {"text": "Gopi Chand", "label": "OTHER_PERSON", "start_char": 4685, "end_char": 4695, "source": "ner", "metadata": {"in_sentence": "20 of 1952 was filed by Kuldip Raj whose father, Gopi Chand was killed hy the fall of the Clock Tower."}}, {"text": "Subordinate Judge, !st Class, Delhi", "label": "COURT", "start_char": 4780, "end_char": 4815, "source": "ner", "metadata": {"in_sentence": "All the suits were tried by the Court of Subordinate Judge, !"}}, {"text": "July 9, 1953", "label": "DATE", "start_char": 4873, "end_char": 4885, "source": "ner", "metadata": {"in_sentence": "st Class, Delhi who disposed of all the suits by a common judgment dated July 9, 1953."}}, {"text": "Shrimati Subhagwnti", "label": "OTHER_PERSON", "start_char": 4953, "end_char": 4972, "source": "ner", "metadata": {"in_sentence": "25,000 to Shrimati Subhagwnti and other heirs of Ram Parkash in suit No."}}, {"text": "Shrimati Panni Devi", "label": "OTHER_PERSON", "start_char": 5065, "end_char": 5084, "source": "ner", "metadata": {"in_sentence": "15,000 to the heirs of Shrimati Panni Devi in suit No."}}, {"text": "November 27, 1959", "label": "DATE", "start_char": 6123, "end_char": 6140, "source": "ner", "metadata": {"in_sentence": "On November 27, 1959 the High Court disposed of all the appeals by a common judgment."}}, {"text": "Munshi Lal", "label": "OTHER_PERSON", "start_char": 6340, "end_char": 6350, "source": "ner", "metadata": {"in_sentence": "930of1951 in favour of Munshi Lal and others was reduced to Rs."}}, {"text": "B. S. Puri", "label": "OTHER_PERSON", "start_char": 6873, "end_char": 6883, "source": "ner", "metadata": {"in_sentence": "The High Court mainly relied on the evidence of Shri B. S. Puri, Retired Chief Engineer, P.W.D., Government of India who was invited by the Municipal Committee to inspect the Clock Tower after its collapse and who was produced by them as their witness."}}, {"text": "Government of India", "label": "ORG", "start_char": 6917, "end_char": 6936, "source": "ner", "metadata": {"in_sentence": "The High Court mainly relied on the evidence of Shri B. S. Puri, Retired Chief Engineer, P.W.D., Government of India who was invited by the Municipal Committee to inspect the Clock Tower after its collapse and who was produced by them as their witness."}}, {"text": "Chakravarty", "label": "OTHER_PERSON", "start_char": 7127, "end_char": 7138, "source": "ner", "metadata": {"in_sentence": "Tp.e facts disclosed in his statement and that of Mr. Chakravarty, the Municipal Engineer were that the building was 80 years old and the life of the structure of the top storey, having regard to the type of mortar used, could be only 40 to 45 years and the middle storey could be saved for another 10 year~. The High Court also took into consideration the statement of Mr. Puri to the effect thal the collapse of the Clock Tower was due to thrust of the arches on the top portion."}}, {"text": "Puri", "label": "OTHER_PERSON", "start_char": 7447, "end_char": 7451, "source": "ner", "metadata": {"in_sentence": "Tp.e facts disclosed in his statement and that of Mr. Chakravarty, the Municipal Engineer were that the building was 80 years old and the life of the structure of the top storey, having regard to the type of mortar used, could be only 40 to 45 years and the middle storey could be saved for another 10 year~. The High Court also took into consideration the statement of Mr. Puri to the effect thal the collapse of the Clock Tower was due to thrust of the arches on the top portion."}}, {"text": "Pnri", "label": "OTHER_PERSON", "start_char": 7559, "end_char": 7563, "source": "ner", "metadata": {"in_sentence": "Mr. Pnri was of the opinion that if an expert had examined this building specifically for the purpose he might have found out that it was likely to fall."}}, {"text": "Municipal Corporation of Delhi", "label": "ORG", "start_char": 7977, "end_char": 8007, "source": "ner", "metadata": {"in_sentence": "These appeals are brought by the Municipal Corporation of Delhi against the decree of the High Court dated November 27, 1959 in First Appeals No."}}, {"text": "Bishen Narain", "label": "LAWYER", "start_char": 8426, "end_char": 8439, "source": "ner", "metadata": {"in_sentence": "It w!ls contended, in the first place, by Mr. Bishen Narain on behalf of the appellant that the High Court was wrong in applying the doctrine of res ipsa loquitur to this case.", "canonical_name": "Bishan Narain"}}, {"text": "England", "label": "GPE", "start_char": 9535, "end_char": 9542, "source": "ner", "metadata": {"in_sentence": "The principle has been clearly stated in Halsbury's Laws of England, 2nd Edn.,"}}, {"text": "Sheffield", "label": "GPE", "start_char": 13743, "end_char": 13752, "source": "ner", "metadata": {"in_sentence": "the plaintiff was the owner of a lock-up shop in Proctor Place, Sheffield, and the defendant Cohen was the owner of the adjoining house."}}, {"text": "Cohen", "label": "OTHER_PERSON", "start_char": 13772, "end_char": 13777, "source": "ner", "metadata": {"in_sentence": "the plaintiff was the owner of a lock-up shop in Proctor Place, Sheffield, and the defendant Cohen was the owner of the adjoining house."}}, {"text": "IUPllEME COURT RllPOl.TS\n\n(1966] 3 S.C.R.", "label": "COURT", "start_char": 14597, "end_char": 14638, "source": "ner", "metadata": {"in_sentence": "CI/66-10\n\n1;54 IUPllEME COURT RllPOl."}}, {"text": "Atkinson", "label": "JUDGE", "start_char": 14728, "end_char": 14736, "source": "ner", "metadata": {"in_sentence": "At page 233 of the Report Atkinson, J. states:\n\n\"By C-Onunon law it is an indictable offence for an occupier of premises on a highway to permit them to get into a dangerous condition owing to non-repair."}}, {"text": "S. 631, 651", "label": "PROVISION", "start_char": 15092, "end_char": 15103, "source": "regex", "metadata": {"statute": null}}, {"text": "Blackburn", "label": "JUDGE", "start_char": 15110, "end_char": 15119, "source": "ner", "metadata": {"in_sentence": "v. Bradford Navigation Co. [(1865) 6 B. & S. 631, 651] Lord Blackburn (then Blackburn J.) laid it down as a general principle of law that persons who manage their property so as to be a public nuisance are indictable.", "canonical_name": "Blackburn"}}, {"text": "Llndley", "label": "JUDGE", "start_char": 15458, "end_char": 15465, "source": "ner", "metadata": {"in_sentence": "If I were sued for a nuisance, 'said Llndley L. J. in Rapier\n\nv. London Tramways Co. [(1893) 2 Ch."}}, {"text": "Section 1", "label": "PROVISION", "start_char": 16283, "end_char": 16292, "source": "regex", "metadata": {"statute": null}}, {"text": "Fatal Accidents Act, 1855", "label": "STATUTE", "start_char": 16300, "end_char": 16325, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Campbell", "label": "OTHER_PERSON", "start_char": 17832, "end_char": 17840, "source": "ner", "metadata": {"in_sentence": "93, known as the Lord Campbell's Acts."}}, {"text": "Wright", "label": "OTHER_PERSON", "start_char": 18058, "end_char": 18064, "source": "ner", "metadata": {"in_sentence": "The scope of the corresponding provisions of the English Fatal Accidents Acts has been discussed by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. (') At page 617 of the Report Lord Wright has stated the legal position as follows:\n\n\"It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities."}}, {"text": "Viscount Simon", "label": "OTHER_PERSON", "start_char": 18896, "end_char": 18910, "source": "ner", "metadata": {"in_sentence": "The same principle has been reiterated by Viscount Simon in Nance\n\nv. British Columbia Electric Railway Company Ltd. (2) In the present case of Subhagwanti etc."}}, {"text": "Subhagwanti", "label": "RESPONDENT", "start_char": 18998, "end_char": 19009, "source": "ner", "metadata": {"in_sentence": "The same principle has been reiterated by Viscount Simon in Nance\n\nv. British Columbia Electric Railway Company Ltd. (2) In the present case of Subhagwanti etc.", "canonical_name": "SUBHAGWANTI & OTHERS"}}, {"text": "Tek Chand", "label": "OTHER_PERSON", "start_char": 19808, "end_char": 19817, "source": "ner", "metadata": {"in_sentence": "In the case of Tek Chand and bis four children, the High Court has estimated that the pecuni-\n\n(I) [1942] A.C. 601."}}]}
{"document_id": "1966_3_657_662_EN", "year": 1966, "text": "• B\n\n' c\n\nORIENT PAPER MILLS LTD. v.\n\nUNION OF INDIA February 25, 1966\n\n[P. B. GAJENDRAGADKAR C.J., K.N. WANCHOO,\n\nM. HIDAYATULLAH, J. c. SHAH AND\n\nS. M •. SJKRI, JJ.]\n\nSupreme Court Rules, 1950, Schedule III, Part II, Entry 2-Claim for refund of a definite amount of excise duty-Disallowed by Excise authorities-Appeal to Supreme Court under Art. 136-Court fee payable.\n\nThe appellant claimed refund of a specific amount as excess amount of excise duty recovered from it by assessing it under a wrong item, but the' excise authorities rejected the claim and the appellant's revision applicatron to the respondent was also dismissed.\n\nIn its application for leave to appeal to this Court under Art. 13 6, the appellant challenged the order of the respondent on the assumption that the order under appeal had been passed by the respondent acting as a Tribunal, and reiterated its claim for the specified amount. The appellant contended that only fixed court fee of Rs. 250 was payable because it was not poosible to estimate at a money\n\nvalue the subject matter in dispute and not fee on an ad valorem basis at the rate prescribet! in Entry 2 in Schedule III, Part II of the Supreme Court Rules.\n\nHELD : The claim made by the appellant was for a definite, ascertained amount and thereiore it is not a case where it is not possible to estimate at a money value the subject matter in dispute.\n\nNor can it be said that if the appeal before this Court succeeds, it would still be necessary for the appellant to take any further steps to recover the amount of refund, because. this Court can direct the appropriate authorities to grant the refund. Therefore, the appellant should pay court fee as prescribed by Entry 2 in Part II of Schedule III of the Supreme Court Rules, on an ad valorem basis. [661 G-H; 662 E, Fl Order in Civil Appeal No. 212 of 1956, explained.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 659-664 of 1965.\n\nAppeals by special leave from the judgment and order dated October 5, 1963 of the Government of India, Ministry of Finance, Department of Revenue, New Delhi in Central Excise Revision Applications Nos. 720-725 of 1963.\n\nA. K. Sen, B. P. Maheshwari and M. S. Narasimhan, for the Appellant.\n\nN. S. Blndra and B. R. G. K. Achar, for the respondent.\n\nThe Judgment of the Court was delivered by Gajendragadkar, C. J, What is the appropriate amount of court-fees payable on the petition of appeal filed by the appellant, Orient Paper Mills Ltd., under Schedule III, Part II of the Supreme Court Rules, 1950, that is the short question of law which arises for our decision in this matter.\n\nThe appellant carries on the business of manu!acturing and Selling paper and paper board, and is registered as such under the 657\n\nSUPUKB OOUJ.T llEPOl.1'8\n\n(1966] 3 S.C.R.\n\nCentral Excise and Salt Act, 1944 (No. I of 1944) (hercinaft~'I' called 'the Act'). The respondent, the Union of India, charges excise duty under Rule 9 of the Rules framed under the Act on the paper manufactured by the appellant before the manufactured goods are cleared out of the appellant's ware-house. Among various kinds of paper which the appellant manufactures and sells, are included 'Packing and Wrapping' and 'Printing and Writing Paper'. The aforesaid 'Printing and Writing Paper' is of varioui; varieties and it includes Machine Glazed Poster popularly known as M.G. Posters.\n\nPrior to the Finance Act of 1961, the printing and writing paper was classified and charged under item 17(3) of the Schedule to the Act and the wrapping paper was charged under item 17{ 4) of the Schedule; even so, the duty on both the items was the same, viz., 0 22 P. per kilogram. Th.z duty under item 17(4) was, however, enhanced by the Finance Act of 1961 and increased to 0·35 P. per kilogram from the !st March, 1961. About six months after the enhanced duty came into force, the Excise authorities decided that the M.G. Poster manufactured by the appellant should be charged under item 17{4) and demand notices were issued accordingly for the different months during which the said paper was manufactured.\n\nIn consequence of this demand, a total sum of Rs. 2,79,175-27 P. was collected from the appellant as difference in the duty leviable for the assessment periods covered by the several appeals which are pending in this Court and with which we are concerned in the present proceedings.\n\nAs a result of these demands, the appellant had to pay the duty which it did under protest. Thereafter, it claimed a refund under Rule 11 of the Rules framed under the Act. This Rule prescribes a period of three months within which a claim for refund can be made \"in consequence of the sum having been paid through inadvertance, error or misconstruction''. The appellant urged that the duty on the goods in question was chargeable under item 17(3) and not under item 17(4) of the Tariff Rules. One of the reliefs claimed by the appellant in its petitions of appeal was that the Excise authorities be directed to assess the poster paper under item 17(3) and not under item 17(4) and to make a direction as to the refund of the excess amount recovered from the appellant.\n\nThe excess amount of which refund was thus claimed came to Rs. 84,928-84 P. This application was rejected by the Assistant Collector of Central Excise, Cuttack Division, Cuttack.\n\nAgainst the said decision, the appellant preferred an appeal to the Collector of Central Excise under s. 35 of the Act. In its appeal memo to the Collector, the appellant had claimed that the order under appeal should be rexoked and Rs. 84,928-84 P. should be refunded to it. A further claim was made by the appellant that the excise authorities should be directed to assess the poster paper\n\nj , l c '\n\nI ,\n\n• B\n\nunder item 17(3) and not under item 17( 4). The said appeal was rejected by the Collector of Customs on 28-7-1962.\n\nThe appellant then moved the respondent by way of revision under s. 36 of the Act. In its revision application, the appellant made prayers similar to those which it had made before the Appellate Authority. This revision application was also dismissed. It is against this revisional order that the appellant has come to this Court by special leave under Art. 136 of the Constitution. It appears that in the various paragraphs of its application for leave, the appellant has reiterated its claim for refund of money recovered from it in excess of the amount legitimately due from it and has challenged the order of the Excise authorities rejecting its claim in that behalf. On these facts, the question which arises is: can the appellant be permitted to pay a court-fee of Rs. 250 on its petitions for appeal, or is it necessary that it ought to pay court-fees at the rate prescribed by sub-clause (2) of entry 2 in Schedule III, Part II of the Supreme Court Rules ?\n\nThis question was referred by the Deputy Registrar of this Court to the Hon'ble Judge in Chambers. The learned Judge referred t? the respective c_ontmtions raised before him by the parties and considered the practice m regard to the levy of court-fees in allied matters. He tok the view that the practice with regard to levy ?f court-fee~ was m a s.tate of flux and it required full consideratwn. That rs why he duected that the matter be adjourned to\n\nourt. It is as a res.ult of this direction made by the Hon'ble Judge' in Chambers that this matter has come before us for disposal on the question of court-fees. ..\n\nLe~ us cite the relevai; it prvisions of the Supreme Court Rules m relatwn to court-fees m this matter. Enrty 2 in Part II of Schedule III reads thus:-\n\n\"Lodging and registering Petition of Appeal: Where the amount or value of the subject-matter in dispute is Rs. 20,000 or below that sum .. Rs. 250 00 For every Rs. 1,000 in excess of Rs. 20,000 .\n\nIn cases where it is not possible to estimate at a money value the subject-matter in dispute\n\n.. Rs. 5 00 for every thousand rupees or part thereof.\n\n.. Rs. 250 . 00\"\n\nThere is a proviso to this entry which reads thus:-\n\n\"Provided:\n\n(!) that the maximum fee payable in any case shall not exceed Rs. 2,000 and\n\nSUPREME\n\nCOURT\n\nREPORTS [1966] 3 s.c.a.\n\n(2) that where an appeal is brought by special leave granted by this Court credit shall be given to the appellant for the amount of court-fee paid by him on the petition for special leave to appeal\".\n\nMr. Sen for the appellant contends that it is not possible to estimate at a money Yalue the subject-matter in dispute in the\n\npresent appeals; and so, court-fee of Rs. 250 would be adequate and appropriate for each one of them. According to him, the controversy between the parties has relation to the proper classification of the goods and this being the subject-matter of the appeals, it is incapable of valuation. Mr. Sen presented his argument in an alternative form.\n\nHe urged that even if the appeals are allowed, this Court will merely determine the proper classification of the goods and make a declaration that on the basis of the said proper classification, the appellant should be entitled to the rfund.\n\nEven after such a declaration is made, the appellant would be required to adopt some other procedure to make a claim for actual recovery of the said refund. It is on these two grounds that Mr. Sen rests his case that Rs. 250 would be the appropriate and adequate court-fees for each one of these appeals.\n\nIn support of this contention, Mr. Sen has also referred to the practice prevailing in this Court in respect of certain categories of appeals where court-fee of Rs. 250 has been consistently accepted as adequate and appropriate. In Civil Appeal No. 212 of 1956 (The State of Madras v. Messrs. Tata Iron and Steel Co. Ltd.) an appeal was filed by the State of Madras on a certificate granted by the High Court from an order passed hy it under s. 12-B of the Madras General Sales Tax Act, 1939 allowing the assessee's claim for refund of the amount of sales tax computed on the tum-over of a stated sum of money. Overruling the stand taken by the office that court-fees should be paid on an ad valorem basis, Bhagwati, J. who was then the Hon'ble Judge in Chambers directed that \"it is not possible to estimate the value of the claim in this case and the record does not show it. Therefore, the court-fee should be paid on that basis\". Accordingly Rs. 250/- was accepted as proper court-fee.\n\nSimilarly, in Civil Appeal No. 54 of 1958 (Indian Hume Pipes\n\nv. Its Workmen) though the appeal related to a definite and ascertainable sum of money in respect of payment of bonus, dearness allowance, etc. Bhagwati, J. directed that \"I am inclined to think that Rs. 250/- fixed court-fee should be charged. The award merely determines the liability; recovery of the dues requires other procedure to be adopted for the purpose; vide section 33(c)\".\n\nIn accordance with the directions thus given by the Hon'ble Judge in Chambers in these two matters, the practice in this Court\n\nr \\'\n\nI •\n\n•.-\n\n• •\n\n---..._\n\n' r-1 •\n\nA..\n\nconsistently has been that in matters comingtotbis Courtin reference proceedings under the relevant provisions of the Sales Tax Acts and the Indian Income-tax Act, 1922 as well as against awards made under the Industrial Disputes Act, 1947, Rs. 250 has been accepted as proper court-fee.\n\nIn Civil Appeal No. 148of1954 (M/s. Bhatnagar & Co. Ltd.v.\n\nUnion of India), similar court-fee of Rs. 250/- was accepted where the appellant challenged the order of the High Court passed under Art. 226 refusing the appellant's prayer for a direction for amendment of the period of the validity of import licences. This plea was accepted even though the appellant had estimated his loss at Rs. 6,00,000/- if the relief claimed in that behalf by him was not granted.\n\nIt is on these precedents and the practice which they show that Mr.\n\nSen has relied in support of his argument that the category of cases in which the present appeals fall should be similarly treated and Rs. 250/- should be taken as adequate and proper court-fee.\n\nReverting then to the first contention raised by Mr. Sen, can it be said that the present appeals fall in the class of cases where it is not possible to estimate at a money value the subject-matter in dispute. In our opinion, the answer to this question must clearly be in the negative. We have already set out the nature of the relief claimed by the appellant in its application before the Assistant Collector of Central Excise, as well as in subsequent appeals and revision application. The claim clearly and unambiguously is for a refund of Rs. 84,928 84 P. It is true that a claim for this refund is sought to be justified on the basis that the assessment should be levied under item 17(3) and not under item 17( 4); but the decision of the point as to which item applies to the paper in question, serves to support the appellant's claim for a refund; and so, the fact that the issue as to which item applies cannot be said to determine the character of the present proceedings before the Appellate Authority or that of the appeals before this Court. , The proceedings, in terms, are to recover the stated amount of refund and since the said claim has been rejected by the Excise authorities, in the present appeals the same claim-is made by the appellant before this Court. Therefore, we think it is impossible to hold that these appeals are cases where it is not possible to estimate at a money value the subject-matter in dispute.\n\nBesides, Mr. Sen is not right in contending that if the appeals filed by the appellant before this Court succeed, it would be necessary for the appellant to take some further steps to recover the amount of refund claimed by it. In case this Court holds that the basis on which the assessment has been made in respect of the paper manufactured by the appellant is erroneous in law, the necessary consequer, ce of the said decision would be to issue a direction that a refund of the appropriate amount should be allowed. These\n\n•f62 SUl'llEMI! COUJ.T llBPOl.TS\n\n[1966) 3 S.C.R.\n\na.ppc:aJs have been brought to this Court under Art. 136 of the Coru- Ututton on the assumption that the orders under appeal hae been\n\npassed .~Y the rpopdent hich acted as a Tribunal in entertaining the reVJSon applications withm the meaning of the said Article; and so, 11 would be open to this Court to direct, if the appeals succeed, that the appropriate authorities should grant the appellant's claim for refund.\n\nThen as to the precedents on which Mr. Sen relies, the position with regard to appeals brought to this Court in Sales-tax. or Income-tax. matters, such as the case in the State of Madras v.\n\nMessrs. Tata lro11 and Steel Co. Ltd.(I), is entirely different.\n\nIn such proceedings, the High Court which entertains the reference acts purely in an advisory capacity and when the appeal is brought to this Court against the decision of the High Court on such reference, the capacity of this Court is exactly the same as that of the High Court. The proceedings continue to be proceedings in which either the High Court or this Court expresses an advisory opinion, and so, it can well be said that the subject-matter in such cases cannot be estimated at a money value. Whether or not similar considerations will apply to the appeals brought to this Court by special leave against awards made under the Industrial Disputes Act or against orders passed by the High Court in writ jurisdiction, it is unnecessary for us to decide in the present proceedings.\n\nSo far as the present appeals are concerned, we feel no difficulty in holding that the claim made by the appellant is for a definite, ascertained amount and it is the rejection of the said claim by the respondent in exercise of its revisional jurisdiction when it rejected the appellant's revision applications, that has given rise to the present appeals. This is a claim which in terms has already been\n\ntimated at a money value, and therefore, there is no basis for the appellant's plea that court-fee of Rs. 250/- should be held to be adequate and proper in each of these appeals. We accordingly direct that the appellant should pay proper court-fees as prescribed by Entry 2 in Part II of the Third Schedule of the Supreme Court Rules, subject, of course, to the maximum prescribed by clause (i) of the proviso thereto.\n\n(t} C.A. No. 212of t956.", "total_entities": 49, "entities": [{"text": "c\n\nORIENT PAPER MILLS LTD", "label": "PETITIONER", "start_char": 7, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "ORIENT PAPER MILLS LTD", "offset_not_found": false}}, {"text": "UNION OF INDIA", "label": "RESPONDENT", "start_char": 38, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "February 25, 1966", "label": "DATE", "start_char": 53, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "v.\n\nUNION OF INDIA February 25, 1966\n\n[P. B. GAJENDRAGADKAR C.J., K.N. WANCHOO,\n\nM. HIDAYATULLAH, J. c. SHAH AND\n\nS. M •. SJKRI, JJ.]"}}, {"text": "P. B. GAJENDRAGADKAR C.J.", "label": "JUDGE", "start_char": 73, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K.N. WANCHOO", "label": "JUDGE", "start_char": 100, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J.", "label": "JUDGE", "start_char": 115, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 135, "end_char": 142, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Supreme Court Rules, 1950", "label": "STATUTE", "start_char": 169, "end_char": 194, "source": "regex", "metadata": {}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 196, "end_char": 208, "source": "regex", "metadata": {"linked_statute_text": "Supreme Court Rules, 1950", "statute": "Supreme Court Rules, 1950"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 343, "end_char": 351, "source": "regex", "metadata": {"linked_statute_text": "Supreme Court Rules, 1950", "statute": "Supreme Court Rules, 1950"}}, {"text": "Art. 13", "label": "PROVISION", "start_char": 694, "end_char": 701, "source": "regex", "metadata": {"linked_statute_text": "Supreme Court Rules, 1950", "statute": "Supreme Court Rules, 1950"}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 1145, "end_char": 1157, "source": "regex", "metadata": {"linked_statute_text": "Supreme Court Rules, 1950", "statute": "Supreme Court Rules, 1950"}}, {"text": "Part II of the Supreme Court Rules", "label": "STATUTE", "start_char": 1159, "end_char": 1193, "source": "regex", "metadata": {}}, {"text": "Part II of Schedule III of the Supreme Court Rules", "label": "STATUTE", "start_char": 1716, "end_char": 1766, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 1863, "end_char": 1891, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal Nos."}}, {"text": "A. K. Sen", "label": "OTHER_PERSON", "start_char": 2150, "end_char": 2159, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, B. P. Maheshwari and M. S. Narasimhan, for the Appellant."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 2161, "end_char": 2177, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, B. P. Maheshwari and M. S. Narasimhan, for the Appellant."}}, {"text": "M. S. Narasimhan", "label": "LAWYER", "start_char": 2182, "end_char": 2198, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, B. P. Maheshwari and M. S. Narasimhan, for the Appellant."}}, {"text": "N. S. Blndra", "label": "LAWYER", "start_char": 2220, "end_char": 2232, "source": "ner", "metadata": {"in_sentence": "N. S. Blndra and B. R. G. K. Achar, for the respondent."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 2237, "end_char": 2254, "source": "ner", "metadata": {"in_sentence": "N. S. Blndra and B. R. G. K. Achar, for the respondent."}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 2320, "end_char": 2334, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Gajendragadkar, C. J, What is the appropriate amount of court-fees payable on the petition of appeal filed by the appellant, Orient Paper Mills Ltd., under Schedule III, Part II of the Supreme Court Rules, 1950, that is the short question of law which arises for our decision in this matter."}}, {"text": "Orient Paper Mills Ltd.", "label": "ORG", "start_char": 2445, "end_char": 2468, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Gajendragadkar, C. J, What is the appropriate amount of court-fees payable on the petition of appeal filed by the appellant, Orient Paper Mills Ltd., under Schedule III, Part II of the Supreme Court Rules, 1950, that is the short question of law which arises for our decision in this matter."}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 2476, "end_char": 2488, "source": "regex", "metadata": {"linked_statute_text": "Part II of Schedule III of the Supreme Court Rules", "statute": "Part II of Schedule III of the Supreme Court Rules"}}, {"text": "Part II of the Supreme Court Rules, 1950", "label": "STATUTE", "start_char": 2490, "end_char": 2530, "source": "regex", "metadata": {}}, {"text": "Central Excise and Salt Act, 1944", "label": "STATUTE", "start_char": 2787, "end_char": 2820, "source": "regex", "metadata": {}}, {"text": "Union of India", "label": "RESPONDENT", "start_char": 2891, "end_char": 2905, "source": "ner", "metadata": {"in_sentence": "The respondent, the Union of India, charges excise duty under Rule 9 of the Rules framed under the Act on the paper manufactured by the appellant before the manufactured goods are cleared out of the appellant's ware-house.", "canonical_name": "UNION OF INDIA"}}, {"text": "Prior to the Finance Act", "label": "STATUTE", "start_char": 3377, "end_char": 3401, "source": "regex", "metadata": {}}, {"text": "st March, 1961", "label": "DATE", "start_char": 3786, "end_char": 3800, "source": "ner", "metadata": {"in_sentence": "st March, 1961."}}, {"text": "s. 35", "label": "PROVISION", "start_char": 5429, "end_char": 5434, "source": "regex", "metadata": {"statute": null}}, {"text": "28-7-1962", "label": "DATE", "start_char": 5845, "end_char": 5854, "source": "ner", "metadata": {"in_sentence": "The said appeal was rejected by the Collector of Customs on 28-7-1962."}}, {"text": "s. 36", "label": "PROVISION", "start_char": 5922, "end_char": 5927, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 6210, "end_char": 6218, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 6771, "end_char": 6783, "source": "regex", "metadata": {"statute": null}}, {"text": "Part II of the Supreme Court Rules", "label": "STATUTE", "start_char": 6785, "end_char": 6819, "source": "regex", "metadata": {}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 7568, "end_char": 7580, "source": "regex", "metadata": {"linked_statute_text": "Part II of the Supreme Court Rules", "statute": "Part II of the Supreme Court Rules"}}, {"text": "Sen", "label": "LAWYER", "start_char": 8348, "end_char": 8351, "source": "ner", "metadata": {"in_sentence": "Mr. Sen for the appellant contends that it is not possible to estimate at a money Yalue the subject-matter in dispute in the\n\npresent appeals; and so, court-fee of Rs.", "canonical_name": "Sen"}}, {"text": "State of Madras", "label": "ORG", "start_char": 9716, "end_char": 9731, "source": "ner", "metadata": {"in_sentence": "212 of 1956 (The State of Madras v. Messrs. Tata Iron and Steel Co. Ltd.) an appeal was filed by the State of Madras on a certificate granted by the High Court from an order passed hy it under s. 12-B of the Madras General Sales Tax Act, 1939 allowing the assessee's claim for refund of the amount of sales tax computed on the tum-over of a stated sum of money."}}, {"text": "s. 12", "label": "PROVISION", "start_char": 9808, "end_char": 9813, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras General Sales Tax Act, 1939", "label": "STATUTE", "start_char": 9823, "end_char": 9857, "source": "regex", "metadata": {}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 10073, "end_char": 10081, "source": "ner", "metadata": {"in_sentence": "Overruling the stand taken by the office that court-fees should be paid on an ad valorem basis, Bhagwati, J. who was then the Hon'ble Judge in Chambers directed that \"it is not possible to estimate the value of the claim in this case and the record does not show it."}}, {"text": "section 33(c)", "label": "PROVISION", "start_char": 10789, "end_char": 10802, "source": "regex", "metadata": {"linked_statute_text": "the Madras General Sales Tax Act, 1939", "statute": "the Madras General Sales Tax Act, 1939"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 11126, "end_char": 11140, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 11188, "end_char": 11217, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bhatnagar & Co. Ltd.v", "label": "PETITIONER", "start_char": 11303, "end_char": 11324, "source": "ner", "metadata": {"in_sentence": "148of1954 (M/s. Bhatnagar & Co. Ltd.v."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 11460, "end_char": 11468, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "Sen", "label": "LAWYER", "start_char": 11802, "end_char": 11805, "source": "ner", "metadata": {"in_sentence": "It is on these precedents and the practice which they show that Mr.\n\nSen has relied in support of his argument that the category of cases in which the present appeals fall should be similarly treated and Rs.", "canonical_name": "Sen"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 14062, "end_char": 14070, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 15326, "end_char": 15349, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Part II of the Third Schedule of the Supreme Court Rules", "label": "STATUTE", "start_char": 16161, "end_char": 16217, "source": "regex", "metadata": {}}]}
{"document_id": "1966_3_663_671_EN", "year": 1966, "text": "• B\n\n... /\n\nMAHARAJA PRATAP SINGH BAHADUR v.\n\nTHAKUR MANMOHAN DEO AND ORS.\n\nF'ebruary 28, 1966 (K. SUBBA RAo, AND V. RAMASAWAMI, JJ.J Bengal Ghatwali Lands Act, 1859 (Act V of 1859), ss. 1 and 'lr-The Court of Wards Att, 1870 (Act IV of 1870), ss. 8, 9, 13-Provisions of former Act in respect of long leases of ghatwa(i lands in conflict wifh provisions of latter Act-Whether conditions in both Acts to be satrsfied- Lease of ghatwali estate land in perpetuity-Lease executed by Deputy Commissioner-Presumption of valid execution under s. 114 Indian Evidence Act, 1872.\n\nA lease in perpetuity in respect of certain lands belonging to a ghatwali estate situated in the area of present West Bengal was granted in 1873 of the predecessors-in-interest Of the appellant for the purpot3e or erecting dwelling houses. The lease was executed on behalf of the Estate, which was under the management of the Court of Wards, by the Deputy Commissioner of Santa! Pargana. In 1952 the lease was challenged by the Ghatwal as being void. According to the Bengal Ghatwali Lands Act 1859 (Act V of 1859) such alease could be executed by the Court or Wards for certain specified purposes which included the erection of dwelling houses.\n\nUnder the Court of Wards Act 1870 (Act IV of 1870) 1tte Court of Wards could grant such a lease with the &auction of the Board of Revenue. The trial court held that the lease was void as it was not sanctioned by the Board of Revenue. 1he High Court held that the case must be decided on the provisions of Act V of 1859 which was a special Act overriding the general Act i.e., Act IV of 1870. According to the High Court the lease was void under Act V of 1859 because it was not executed by the Court of Wards.\n\nEven under Act IV of 1870 it was void for want of sanction of the Board of Revenue. In appeal to this Court, HELD : The lease was valid.\n\n(i) The Bengal Ghatwali Lands Act, 1859 was a special Act dealing with gbatwali lands. The Court of Wards Act, 1870 was a general enactment. On the principle generalia specialibus non derogant the provisions of . the former Act in respect of leases of ghatwali lands would prevail over the provisions of the latter Act regarding lease of land under the management of the Court of Wards.\n\n[669 B-C]\n\n(ii) The lease in question was for the purpose of raising dwelling houses and thus one of the conditions in s. 2 of the Act of 1859 was satisfi:ed.\n\nThe other condition that the lease must be executed by the Court of Wards was also satisfied in the case inasmuch as under s. 114 of the Indian Evidence Act the official act of execution of the lease by the Deputy Commissioner must be presumed to have been regularly performed i.e .. with due authority from the Court of Wards.\n\n[669 G, HJ\n\n(iii) Even on the footing that the Court of Wards Act, 1870 was applicable to the case, the lease could not be said to be void.\n\nA combined reading of ss. 8, 9 and 13 of the said Act showed that the Collector (or Deputy Commissioner, s:nce the terms are synonymous) could grant a lease of land in the management of the Court of Wards in bis district; he could grant a lease in perpetuity with the sanction of the Board of Revenue. In the present case it could be presumed under s. 114 of the Evidence Act that the sanction of the Board of Revenue was duly obtained.\n\n[670 DJ 663\n\nSUPREME\n\nCOURT RBPOl.TS\n\n[1966] 3 S.C.R\n\nCivrr. APPELLATE!JtJRISDICTJO~ : Civil Appeal No. 35 of)963.\n\nAppeal from t.he judgment and decree dated August 9, 1960 of the Patna High Court in Aprea! from Original Decree No. 438 of 1954.\n\nUgra Singh and D. Goh11rdhu11, for the appellant.\n\nSarjoo Prasad and R. C. Prasad for respondent no. I.\n\nU. P. Singh. for respondents nos. 2 and 3.\n\nThe Judgment of the Court was delivered by\n\nSubba Rao, J. The fac1s that gave rise to this appeal may be briefly stated. In the rlaint there are three schedules, A, B and C.\n\nWe are concerned in this appeal only with schedules A and C and nothing, therefore. need be said in regard to schedule TI. The lands described in schedules A and C were situate in Rohini Ghatwali\n\nEstate. When !hat btatc was in the management of the Court of Wards, on March 25, 1873, the then Deputy Commissioner, Santai Paragana, on behalf of the Court of Wards representing the said Estate executed a lease in perpetuity in respect of the A schedule property in favour of Maharaja Sir Jai Mangal Singh Bahadur, the predecessor-in-interest of the 2nd defendant, for the purpose of erecting dwelling houses thereon. The 2nd defendant and his ancestors had been in possession of the said property since the date of the said lease. The lands described in Schedule C annexed to the plaint were not covered by the said lease, but it is alleged that the 2nd defendant and his ancestors had been in possession of the same.\n\nThe plaintiff, who is the present Ghatwal of the Rohini Ghatwali Estate, after attaining majority on October 17, 1949, filed Title Suit No. 37 of 1952 on the file of the Court of the Subordinate Judge, Deoghar, for recovery of possession of the said lands on the ground, inter alia, that they formed paf\\ of his Estate and that the lease executed by the Deputy Commissioner in respect of the A Schedule lands was void, as it was not countersigned by the Commissioner, Bhagalporc, and that the 2nd defendant had no title to the C Schedule lands. To that suitthe Member, Board of Revenue, Bihar, was made the 1st defendant and Maharaja Pratap Singh, the successor-in-interest of the lessee, being a minor represented by the Collector of Monghyr, as representing the Court of Wards, as the 2nd defendant. The 2nd defendant contended that the suit was barred by limitation.\n\nThe learned Subordinate Judge held that the lease executed on behalf of the Court of Wards, not having been sanctioned by the Board of Revenue, became void as soon as the superintendence of the Court of Wards was removed from the Ghatwali Estate.\n\nSo far as the lands mentioned in Schedule C were concerned, be came to the conclusion that they were outside the scope of the lease\n\n' A\n\n, t ,\n\nof tll73 and, therefore, the plaintiff was entitled to get possession thereof. He held that the suit was not barred by limitation. In the result he decreed the suit of the plaintiff for possession of A and C Schedule lands. Against the said decree the 2nd defendant filed an appeal to the High Court at Patna.\n\nThe said appeal was heatd by a division Bench of the High Court. It held that the validity of the lease of 1873 should be judged on the provisions of the Bengal Ghatwali Lands Act, 1859 (Act Vof 1859) and not on those of Court of Wards Act, 1870, (Act IV of 1870) and so judged the lease was void, as it was not executed by the Court of Wards as provided thereunder. It also held that even if Act IV of 1870 applied, the lease would be void inasmuch as no sanction of the Board of Revenue was obtained under s. 9 of the said Act.' In regard to the C Schedule properties• it accepted the finding of the _learned Subordinate Judge that it was not the subject-matter of the said lease. But it further held that the suit was not barred by limitation. In the result, the decree of the first court was confirmed; but in the circumstances of the case, no order for costs was made. Hence the present appeal.\n\nAt the outset learned counsel for the appellant raised a point for the first time before this Court that as the Rohini Ghatwali Estate vested in the Government under the Bihar Land Reforms Act, 1960. (Bihar Act XXX of 1950). The plaintiff had no locu&\n\nstandi to maintain the suit. When this appeal came up for hearing before this Court on August 18, 1965 it called for a finding from the High Court on the point whether the subject-matter of the appeal had vested in the State Government under the said Act. Pursuant to that order, the High Courtsubmitted a finding to the effect that the subject-matter of the appeal vested in. the State under Notification No. 74 L.R./Zan. dated May 22, 1952, published in Bihar Gazette issued on May 29, 1952. At the time this Court called for a finding, no decision was given by it on the question raised by the appellant as regards the locus standi of the plaintiff to file the suit.\n\nAfter hearing arguments we now find that this is not a case where we\n\ncan dismiss the suit on the ground that the subject-matter of the suit vested in the State Government. The suit was filed on October 21, 1952, i.e., after the Estate had vested in the Government. But the defendants did not contest the suit on the ground that after such vesting the plaintiff had no locus standi to maintain the suit.\n\nPending the appeal in the Patna High Court, the State of Bihar was made a party to it on February 19, 1957; but the said State did not put forward its claim to the suit property. That apart, the question whether Basauri Ghatwali Tenure vested in the State was the subject-matter of T.S. No. 115 of 1950 between the parties. It is represented to us that the learned Subordinate Judge held in that suit that the said tenure also vested in the State, that an appeal filed in the High Court also went against the respondents and that the respon-\n\n666 SUPlll!MI!\n\nCOURT IU!POllTS\n\n[1966] 3 S.C.R.\n\ndents would file an appeal to this Court. In the circumstances we do A not think we are justified in permitting the appellant to raise for the first time before us the contention based upon the provisions of the Bihar Land Reforms Act. But we must make it clear that we leave open the said question in view of the fact that proceeding! are pending in regard thereto.\n\nThe next question turns upon the validity of the lease deed of the year 1873. The lease executed by the Court of Wards is not filed, but the Kabuliat executed by the 2nd defendant's ancestor to the Court of Wards is filed and it is Ex. I in the case.\n\nBoth the parties proceeded on the basis that the terms of both the document! are the same.\n\nUnder Ex. I, Maharaja Sir Jaymangal Singh Bahadur, the ancestor of the 2nd defendant, had taken on lease the A scheduled property for the purpose of erecting dwelling houses from Brown Wood, the then Deputy Commissioner, Santhal Pargana, on behalf of the Court of Wards representing the Rohini Ghatwali Estate. That document was executed under ss. I and 2 of Act V of 1859. Learned counsel for the appellant contended that the validity of the lease was questioned by the respondents in the plaint only on the ground that it was not countersigned by the Commissioner of Bhagalpore, that the High Court went wrong in invalidating it on a different ground and that, in any view, having regard to the fact that a period of about 80 years had elapsed from the date of the lease, the High Court should have presumed that the document was executed in strict conformity with the provision& of both Act JV of 1870 and Act V of 1859.\n\nMr. Sarjoo Prasad, learned counsel for the respondents, on tile other hand, argued that both Act IV of 1870 and Act V of 1859 are complementary to each other, that a lease to be valid should comply with the provisions of both the Acts, that a lease in order to bind a Court of Wards should be executed in the manner prescribed by Act IV of 1870 and that, as the lea'e was not executed by the Court\n\nof Wards as defined by the said Act with the sanction of the Board of Revenue, it was null and void on the removal of the Estate from the superintendence of the Court of Wards.\n\nTo appreciate the rival contentions it is necessary to consider the scope of the said two Acts. The relevant provisions of the said Acts may be extracted.\n\nThe Bengal Ghatwali Lands Act, 1859 (Act V. of 1859).\n\nSection I. Ghatwals holding lands in the district of Birbhoom under the provisions of the aforesaid Regulation (The Bengal Ghatwali Lands Regulation, 1814) shall have the same power of granting leases for any period which they deem most conducive to the improvement\n\nr •\n\n.. •\n\nA of their tenures as is allowed by law to the proprietors of other lands:\n\nProvided that no lease of ghatwali lands for any period extending beyond the lifetime or incumbency of the grantor of the lease shall be valid and binding on the successors of the grantor, unless the same shall be granted for the working of mines or for the clearing of gunle, or for the erection of dwelling-houses or manu factories, or for tanks, canals and similar works, andshall be approved by the Commissioner of the Division, such approval being certified by an endorsement on the lease under the signature of the Conimissi~:mer.\n\nSection 2. If any of the said ghatwali lands be at any time under the superintendence of the Court of Wards, or otherwise subject to the direct control of the officers of the Government, it shall be lawful for the Court of Wards or the Commissioner to grant leases for any such purpose as aforesaid; and every lease so granted shall bevalid and binding on all future possessors of the said lands, anything in the existing law to the contrary notwithstanding.\n\nThe Court of Wards Act, 1870 (Act of 1870)\n\nSection 8. In every division of the provinces subject tothe control of the Lieutenant Governor of Bengal, there shall from and after the passing of this Act, be a Court of\" Wards. The Commissioner of revenue of each such division shall be such court, and shall have_ and exercise all the powers and authorities conferred by this Act upon the court over the persons and property of all wards of such court.\n\nSection 9. It shall be competent to the court to manage estates and other lands falling under their charge, either by appointment of a manager, or by giving some or all the estates and lands in farm, or by adopting such other form of management as may to the said court seem most expedient. Provided that no lease or farm shall accept under the sanction of the Board of Revenue, be given for a term exceeding ten years, not beyond the period of expiration of the ward's minority, and provided that all leases given by the court, or by the Collector acting for the court, or by the manager, shall become null and void on the removal of the estate from the superintendence of the court for whatever cause, save leases made with such sanction as. aforesaid.\n\nSUPIU!ME COUllT\n\nREPOJ.TS [l 966J 3 S.C.R.\n\nA comparative study of these two Acts discloses that Act V of 1859 is a special Act dealing with a specific subject-matter, namely, Ghatwali lands in the district of Birbhoom: it also provides for a particular incident of the tenure, namely, the power to lease the said lands. It says that a ghatwal holding lands shall have the same\n\npower of granting leases as is allowed by law to the proprietors of other lands. The proviso thereto enacts that a lease of a ghatwali land for a period extending beyond the lifetime of the grantor ii not binding on the successors unless the same was granted for the purposes specified therein with the approval of the Commissioner lignified in the manner prescribed thereunder. But s. 2 thereof provides that in the case of a ghatwali land under the superintendence of the Court of Wards, it shall be lawful to the Court of Wards or the Commissioner to grant leases of the same for any of the purposes mentioned in the proviso thereto.\n\nJn that event, such leases shall be binding on the future possessors of the said land. It ia, therefore, manifest from the said sections that a Court of Wards could grant a lease of a ghatwali land for erecting dwelling houses so as to be binding on the future possessors of the said land. The Court of Wards Act deals generally with the management of all the estates that come under the superintendence of the Court of Wards and in respect of lands in such estates, the Court of WardJ can grant a lease of the same for a term exceeding 10 years or beyond the period of expiration of the ward's minority only with the sanction of the Board of Revenue.\n\nIt is, therefore, clear that Act V of 1859 is a special statute and Act IV of 1870 is a general statute. The special statute does not make the sanction of the Board of Revenue a pre-<:ondition for the validity of the lease executed by a Court of Wards so as to bind all future possessors of the said land, whereas s. 9 of Act V of 1859 imposes such a condition. The argument is that both the Acts should be read together and, if so read, the sanction of the Board of Revenue would also be a pre-<:ondition in addition to the conditions imposed under the proviso to s. I of Act V of 1859. In our view, such a contention is untenable. The principle of law in this regard is well settled. In Maxwell on the Interpretation of Statutes, the relevant principle is stated, at p. 168, thus:\n\n\"A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, 'where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.\n\nJn such cases it is presumed to have only general cases\n\nI /\n\nin view, and not particular cases which have been already otherwise provided for by the special Act'.\" If this principle is applicable to the instant case-we do not see any reason why it is not-the special provisions made under Act V of 1859 in regard to the conditions imposed for the validity of such a lease should prevail over those imposed under the general Act, Act IV of 1870. The general Act in regard to leases of ghatwali lands should yield to the special Act. On this construction, the condition for the validity of the lease in question is that it should have been executed by the Court of Wards forthe purpose of erection of dwelling houses. The lease of 1873 expressly states that the lease was granted for erecting dwelling houses.\n\nThe only outstanding question that remains in this context is whether it was executed by the Court of Wards.\n\nExhibit I purports to have been given in favour of Brown Wood, the then Deputy Commissioner of Santhal Pargana, on behalf of the Court of Wards representing the Rohini Ghatwali Estate for the purpose of erecting dwelling houses under ss. 1 and 2 of Act V of\n\n1859. The only flaw pointed out by the learned counsel is that there is nothing in the Act to indicate that a Deputy Commissioner can grant a lease of a ghatwali land on behalf of the Court of Wards.\n\nBut the document was ex facie executed by the Deputy Commissione on behalf of the Court of Wards and the validity of it was not questioned till the suit was filed, that is for about 80 years. The lessee and his successors-in-interest have been in possession of the lands all these years. In such circumstances the presumption under s. 114 of the Indian Evidence Act can readily be drawn. Under that section:\n\n\"The Court may presume the existence of any fact F which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.\"\n\nUnder illustration (e) the court may presume that judicial and official acts have been regularly performed. If an official act is proved to have been done, it will be presumed to have been regularly done. In this case it has been proved that the lease was executed on behalf of the Court of Wards and that the lessee and his successors have been in unquestioned enjoyment of the said lands for many years. Indeed, the plaintiff in the plaint does not allege that the Deputy Commissioner was not legally authorized to Act on behalf of the Court of Wards; his only objection is that the document was not countersigned by the Commissioner of Bhagalpur Division.\n\nBut that condition was only applicable to a lease executed by a Ghatwal and not by the Court of Wards. In the circumstances, wet\n\nM II Sup.C.I./66-11\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n!1966) 3 5.C.R..\n\nthink it is a fit case where the court can reasonably presume that the Deputy Commissioner, under appropriate rules, was duly authorised to act on behalf of the court of Wards.\n\nAssuming that the conditions laid down in Act IV of 1870 should also be complied with, we think the respondents are not in a better position. Under s. 9 oftl:e Court of Wards Act, the Court of Wards can grant a lease for a term extending to 10 years or for a period beyond the expiration of the ward's minority with the sanction of the Board of Revenue.\n\nUnder s. 8 thereof, the Commissioner of Revenue of each division shall be the Court of Wards.\n\nUnder s. 9, the Court of Wards is competent to manage estates and lands falling under its charge and one of the acts of management is to grant leases of lands.\n\nUnder s. 13, when estates or lands of wards are situated within more than one district but within the same division, the Collector of each district shall exercise the duties of the Court of Wards with respect to the ward's property situate within his district. A combined reading of these provisions indicates that the Collector can grant a lease of a property situate within Im district, for, the grant of a lease of lands in his management is certainly an act of management. That he can do so is also implicit under the provisions of s. 9, for, under that section a lease granted by the Collector acting for the Court of Wards is valid beyond the prohibited period if it was made with the sanction of the Board or Revenue. On a fair reading of the provisions of the Act we have come to the conclusion that the Collector could grant a lease in perpetuity with the sanction of the Board of Revenue.\n\nThe only question now is whether such a sanction was given by the Board of Revenue. The Kabuliat indicates ex facie that the lease was granted in perpetuity by the Deputy Commissioner on behalf of the Court of Wards. It is not disputed that the expressions' \"Deputy Commissioner\" and \"Collector\" are synonymous.\n\nThe same officer is called by both the names and he discharges the same functions. The land covered by the lease has been in possession and enjoyment of the lessee for about 80 years. The validity of the said grant was not questioned all these long years. Even in the plaint its validity was not challenged on the ground that the sanction of the Board of Revenue was not given.\n\nFor the reasons mentioned by us in the context of Act V of 1859, in our view, this is a fit case where we can reasonably presume that when the lease was granted all the statutory requirements were complied with, that is to. say the Board of Revenue gave its sanction. For the aforesaid reasons we hold that the lease of 1873 was valid and binding on the plaintiff.\n\nNow coming to C Schedule lands, the position is simple. lt was concurrently held by the courts below that the C Schedule property was not the subject-matter of the lease. The title to the\n\n• . •\n\n, •\n\nr •\n\nA property, therefore, clearly vested in the plaintiff. It is also found by the lower courts that the said property is a waste land in regard to which there can be no effective enjoyment. The High Court, therefore, rightly . drew the presumption that possession followed title .\n\nIn this view the question of limitation raised by the appellant does not call for a decision, for in the case of the A schedule property the 2nd respondent loses on the question of title and in regard to the C Schedule property he will be presumed to be in posession.\n\nIn either view, the question oflimitation does not arise.\n\n~ I In the result, the appeal is partly allowed and the decree of the High Court is modified.\n\nThe parties will pay and receive proportionate costs throughout.\n\nAppeal allowed in part.", "total_entities": 78, "entities": [{"text": "MAHARAJA PRATAP SINGH BAHADUR", "label": "PETITIONER", "start_char": 12, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "MAHARAJA PRATAP SINGH BAHADUR", "offset_not_found": false}}, {"text": "THAKUR MANMOHAN DEO AND ORS", "label": "RESPONDENT", "start_char": 46, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "THAKUR MANMOHAN DEO AND ORS", "offset_not_found": false}}, {"text": "1966 (K. SUBBA RAo", "label": "JUDGE", "start_char": 90, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "Bengal Ghatwali Lands Act, 1859", "label": "STATUTE", "start_char": 134, "end_char": 165, "source": "regex", "metadata": {}}, {"text": "ss. 1", "label": "PROVISION", "start_char": 183, "end_char": 188, "source": "regex", "metadata": {"linked_statute_text": "Bengal Ghatwali Lands Act, 1859", "statute": "Bengal Ghatwali Lands Act, 1859"}}, {"text": "ss. 8, 9, 13", "label": "PROVISION", "start_char": 244, "end_char": 256, "source": "regex", "metadata": {"linked_statute_text": "Bengal Ghatwali Lands Act, 1859", "statute": "Bengal Ghatwali Lands Act, 1859"}}, {"text": "s. 114", "label": "PROVISION", "start_char": 536, "end_char": 542, "source": "regex", "metadata": {"linked_statute_text": "Bengal Ghatwali Lands Act, 1859", "statute": "Bengal Ghatwali Lands Act, 1859"}}, {"text": "Indian Evidence Act, 1872", "label": "STATUTE", "start_char": 543, "end_char": 568, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "West Bengal", "label": "GPE", "start_char": 684, "end_char": 695, "source": "ner", "metadata": {"in_sentence": "A lease in perpetuity in respect of certain lands belonging to a ghatwali estate situated in the area of present West Bengal was granted in 1873 of the predecessors-in-interest Of the appellant for the purpot3e or erecting dwelling houses."}}, {"text": "Santa! Pargana", "label": "GPE", "start_char": 943, "end_char": 957, "source": "ner", "metadata": {"in_sentence": "The lease was executed on behalf of the Estate, which was under the management of the Court of Wards, by the Deputy Commissioner of Santa!"}}, {"text": "According to the Bengal Ghatwali Lands Act 1859", "label": "STATUTE", "start_char": 1022, "end_char": 1069, "source": "regex", "metadata": {}}, {"text": "Court of Wards Act 1870", "label": "STATUTE", "start_char": 1228, "end_char": 1251, "source": "regex", "metadata": {}}, {"text": "High Court held that the case must be decided on the provisions of Act", "label": "STATUTE", "start_char": 1456, "end_char": 1526, "source": "regex", "metadata": {}}, {"text": "According to the High Court the lease was void under Act", "label": "STATUTE", "start_char": 1610, "end_char": 1666, "source": "regex", "metadata": {}}, {"text": "Bengal Ghatwali Lands Act, 1859", "label": "STATUTE", "start_char": 1875, "end_char": 1906, "source": "regex", "metadata": {}}, {"text": "Court of Wards Act, 1870", "label": "STATUTE", "start_char": 1958, "end_char": 1982, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 2374, "end_char": 2378, "source": "regex", "metadata": {"linked_statute_text": "The Court of Wards Act, 1870", "statute": "The Court of Wards Act, 1870"}}, {"text": "s. 114", "label": "PROVISION", "start_char": 2538, "end_char": 2544, "source": "regex", "metadata": {"linked_statute_text": "The Court of Wards Act, 1870", "statute": "The Court of Wards Act, 1870"}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 2552, "end_char": 2571, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Even on the footing that the Court of Wards Act, 1870", "label": "STATUTE", "start_char": 2762, "end_char": 2815, "source": "regex", "metadata": {}}, {"text": "ss. 8, 9 and 13", "label": "PROVISION", "start_char": 2907, "end_char": 2922, "source": "regex", "metadata": {"linked_statute_text": "Even on the footing that the Court of Wards Act, 1870", "statute": "Even on the footing that the Court of Wards Act, 1870"}}, {"text": "s. 114", "label": "PROVISION", "start_char": 3234, "end_char": 3240, "source": "regex", "metadata": {"linked_statute_text": "Even on the footing that the Court of Wards Act, 1870", "statute": "Even on the footing that the Court of Wards Act, 1870"}}, {"text": "Ugra Singh", "label": "LAWYER", "start_char": 3570, "end_char": 3580, "source": "ner", "metadata": {"in_sentence": "Ugra Singh and D. Goh11rdhu11, for the appellant."}}, {"text": "D. Goh11rdhu11", "label": "LAWYER", "start_char": 3585, "end_char": 3599, "source": "ner", "metadata": {"in_sentence": "Ugra Singh and D. Goh11rdhu11, for the appellant."}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 3621, "end_char": 3634, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and R. C. Prasad for respondent no.", "canonical_name": "Sarjoo Prasad"}}, {"text": "R. C. Prasad", "label": "LAWYER", "start_char": 3639, "end_char": 3651, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and R. C. Prasad for respondent no."}}, {"text": "U. P. Singh", "label": "LAWYER", "start_char": 3675, "end_char": 3686, "source": "ner", "metadata": {"in_sentence": "I.\n\nU. P. Singh."}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 3763, "end_char": 3772, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSubba Rao, J. The fac1s that gave rise to this appeal may be briefly stated."}}, {"text": "March 25, 1873", "label": "DATE", "start_char": 4163, "end_char": 4177, "source": "ner", "metadata": {"in_sentence": "hat btatc was in the management of the Court of Wards, on March 25, 1873, the then Deputy Commissioner, Santai Paragana, on behalf of the Court of Wards representing the said Estate executed a lease in perpetuity in respect of the A schedule property in favour of Maharaja Sir Jai Mangal Singh Bahadur, the predecessor-in-interest of the 2nd defendant, for the purpose of erecting dwelling houses thereon."}}, {"text": "Santai Paragana", "label": "OTHER_PERSON", "start_char": 4209, "end_char": 4224, "source": "ner", "metadata": {"in_sentence": "hat btatc was in the management of the Court of Wards, on March 25, 1873, the then Deputy Commissioner, Santai Paragana, on behalf of the Court of Wards representing the said Estate executed a lease in perpetuity in respect of the A schedule property in favour of Maharaja Sir Jai Mangal Singh Bahadur, the predecessor-in-interest of the 2nd defendant, for the purpose of erecting dwelling houses thereon.", "canonical_name": "Santai Paragana"}}, {"text": "Maharaja Sir Jai Mangal Singh Bahadur", "label": "OTHER_PERSON", "start_char": 4369, "end_char": 4406, "source": "ner", "metadata": {"in_sentence": "hat btatc was in the management of the Court of Wards, on March 25, 1873, the then Deputy Commissioner, Santai Paragana, on behalf of the Court of Wards representing the said Estate executed a lease in perpetuity in respect of the A schedule property in favour of Maharaja Sir Jai Mangal Singh Bahadur, the predecessor-in-interest of the 2nd defendant, for the purpose of erecting dwelling houses thereon.", "canonical_name": "Maharaja Sir Jai Mangal Singh Bahadur"}}, {"text": "Schedule C", "label": "PROVISION", "start_char": 4648, "end_char": 4658, "source": "regex", "metadata": {"statute": null}}, {"text": "October 17, 1949", "label": "DATE", "start_char": 4914, "end_char": 4930, "source": "ner", "metadata": {"in_sentence": "The plaintiff, who is the present Ghatwal of the Rohini Ghatwali Estate, after attaining majority on October 17, 1949, filed Title Suit No."}}, {"text": "Bhagalporc", "label": "GPE", "start_char": 5281, "end_char": 5291, "source": "ner", "metadata": {"in_sentence": "37 of 1952 on the file of the Court of the Subordinate Judge, Deoghar, for recovery of possession of the said lands on the ground, inter alia, that they formed paf\\ of his Estate and that the lease executed by the Deputy Commissioner in respect of the A Schedule lands was void, as it was not countersigned by the Commissioner, Bhagalporc, and that the 2nd defendant had no title to the C Schedule lands."}}, {"text": "Maharaja Pratap Singh", "label": "RESPONDENT", "start_char": 5438, "end_char": 5459, "source": "ner", "metadata": {"in_sentence": "To that suitthe Member, Board of Revenue, Bihar, was made the 1st defendant and Maharaja Pratap Singh, the successor-in-interest of the lessee, being a minor represented by the Collector of Monghyr, as representing the Court of Wards, as the 2nd defendant.", "canonical_name": "MAHARAJA PRATAP SINGH BAHADUR"}}, {"text": "Monghyr", "label": "GPE", "start_char": 5548, "end_char": 5555, "source": "ner", "metadata": {"in_sentence": "To that suitthe Member, Board of Revenue, Bihar, was made the 1st defendant and Maharaja Pratap Singh, the successor-in-interest of the lessee, being a minor represented by the Collector of Monghyr, as representing the Court of Wards, as the 2nd defendant."}}, {"text": "Schedule C", "label": "PROVISION", "start_char": 5965, "end_char": 5975, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court at Patna", "label": "COURT", "start_char": 6366, "end_char": 6385, "source": "ner", "metadata": {"in_sentence": "Against the said decree the 2nd defendant filed an appeal to the High Court at Patna."}}, {"text": "Bengal Ghatwali Lands Act, 1859", "label": "STATUTE", "start_char": 6542, "end_char": 6573, "source": "regex", "metadata": {}}, {"text": "Court of Wards Act, 1870", "label": "STATUTE", "start_char": 6609, "end_char": 6633, "source": "regex", "metadata": {}}, {"text": "s. 9", "label": "PROVISION", "start_char": 6896, "end_char": 6900, "source": "regex", "metadata": {"linked_statute_text": "Court of Wards Act, 1870", "statute": "Court of Wards Act, 1870"}}, {"text": "Bihar Act XXX of 1950", "label": "STATUTE", "start_char": 7490, "end_char": 7511, "source": "regex", "metadata": {}}, {"text": "August 18, 1965", "label": "DATE", "start_char": 7629, "end_char": 7644, "source": "ner", "metadata": {"in_sentence": "When this appeal came up for hearing before this Court on August 18, 1965 it called for a finding from the High Court on the point whether the subject-matter of the appeal had vested in the State Government under the said Act."}}, {"text": "May 22, 1952", "label": "DATE", "start_char": 7971, "end_char": 7983, "source": "ner", "metadata": {"in_sentence": "dated May 22, 1952, published in Bihar Gazette issued on May 29, 1952."}}, {"text": "May 29, 1952", "label": "DATE", "start_char": 8022, "end_char": 8034, "source": "ner", "metadata": {"in_sentence": "dated May 22, 1952, published in Bihar Gazette issued on May 29, 1952."}}, {"text": "October 21, 1952", "label": "DATE", "start_char": 8408, "end_char": 8424, "source": "ner", "metadata": {"in_sentence": "The suit was filed on October 21, 1952, i.e., after the Estate had vested in the Government."}}, {"text": "Patna High Court", "label": "COURT", "start_char": 8644, "end_char": 8660, "source": "ner", "metadata": {"in_sentence": "Pending the appeal in the Patna High Court, the State of Bihar was made a party to it on February 19, 1957; but the said State did not put forward its claim to the suit property."}}, {"text": "State of Bihar", "label": "ORG", "start_char": 8666, "end_char": 8680, "source": "ner", "metadata": {"in_sentence": "Pending the appeal in the Patna High Court, the State of Bihar was made a party to it on February 19, 1957; but the said State did not put forward its claim to the suit property."}}, {"text": "February 19, 1957", "label": "DATE", "start_char": 8707, "end_char": 8724, "source": "ner", "metadata": {"in_sentence": "Pending the appeal in the Patna High Court, the State of Bihar was made a party to it on February 19, 1957; but the said State did not put forward its claim to the suit property."}}, {"text": "Basauri Ghatwali Tenure", "label": "OTHER_PERSON", "start_char": 8830, "end_char": 8853, "source": "ner", "metadata": {"in_sentence": "That apart, the question whether Basauri Ghatwali Tenure vested in the State was the subject-matter of T.S. No."}}, {"text": "Maharaja Sir Jaymangal Singh Bahadur", "label": "OTHER_PERSON", "start_char": 9936, "end_char": 9972, "source": "ner", "metadata": {"in_sentence": "I, Maharaja Sir Jaymangal Singh Bahadur, the ancestor of the 2nd defendant, had taken on lease the A scheduled property for the purpose of erecting dwelling houses from Brown Wood, the then Deputy Commissioner, Santhal Pargana, on behalf of the Court of Wards representing the Rohini Ghatwali Estate.", "canonical_name": "Maharaja Sir Jai Mangal Singh Bahadur"}}, {"text": "Santhal Pargana", "label": "OTHER_PERSON", "start_char": 10144, "end_char": 10159, "source": "ner", "metadata": {"in_sentence": "I, Maharaja Sir Jaymangal Singh Bahadur, the ancestor of the 2nd defendant, had taken on lease the A scheduled property for the purpose of erecting dwelling houses from Brown Wood, the then Deputy Commissioner, Santhal Pargana, on behalf of the Court of Wards representing the Rohini Ghatwali Estate.", "canonical_name": "Santai Paragana"}}, {"text": "Rohini Ghatwali Estate", "label": "ORG", "start_char": 10210, "end_char": 10232, "source": "ner", "metadata": {"in_sentence": "I, Maharaja Sir Jaymangal Singh Bahadur, the ancestor of the 2nd defendant, had taken on lease the A scheduled property for the purpose of erecting dwelling houses from Brown Wood, the then Deputy Commissioner, Santhal Pargana, on behalf of the Court of Wards representing the Rohini Ghatwali Estate."}}, {"text": "Bhagalpore", "label": "GPE", "start_char": 10492, "end_char": 10502, "source": "ner", "metadata": {"in_sentence": "Learned counsel for the appellant contended that the validity of the lease was questioned by the respondents in the plaint only on the ground that it was not countersigned by the Commissioner of Bhagalpore, that the High Court went wrong in invalidating it on a different ground and that, in any view, having regard to the fact that a period of about 80 years had elapsed from the date of the lease, the High Court should have presumed that the document was executed in strict conformity with the provision& of both Act JV of 1870 and Act V of 1859."}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 10852, "end_char": 10865, "source": "ner", "metadata": {"in_sentence": "Mr. Sarjoo Prasad, learned counsel for the respondents, on tile other hand, argued that both Act IV of 1870 and Act V of 1859 are complementary to each other, that a lease to be valid should comply with the provisions of both the Acts, that a lease in order to bind a Court of Wards should be executed in the manner prescribed by Act IV of 1870 and that, as the lea'e was not executed by the Court\n\nof Wards as defined by the said Act with the sanction of the Board of Revenue, it was null and void on the removal of the Estate from the superintendence of the Court of Wards.", "canonical_name": "Sarjoo Prasad"}}, {"text": "Court of Wards should be executed in the manner prescribed by Act", "label": "STATUTE", "start_char": 11116, "end_char": 11181, "source": "regex", "metadata": {}}, {"text": "Bengal Ghatwali Lands Act, 1859", "label": "STATUTE", "start_char": 11585, "end_char": 11616, "source": "regex", "metadata": {}}, {"text": "Ghatwals holding lands in the district of Birbhoom under the provisions of the aforesaid Regulation", "label": "STATUTE", "start_char": 11647, "end_char": 11746, "source": "regex", "metadata": {}}, {"text": "Bengal Ghatwali Lands Regulation, 1814", "label": "STATUTE", "start_char": 11752, "end_char": 11790, "source": "regex", "metadata": {}}, {"text": "Section 2", "label": "PROVISION", "start_char": 12528, "end_char": 12537, "source": "regex", "metadata": {"linked_statute_text": "The Bengal Ghatwali Lands Regulation, 1814", "statute": "The Bengal Ghatwali Lands Regulation, 1814"}}, {"text": "Court of Wards Act, 1870", "label": "STATUTE", "start_char": 12992, "end_char": 13016, "source": "regex", "metadata": {}}, {"text": "Section 8", "label": "PROVISION", "start_char": 13032, "end_char": 13041, "source": "regex", "metadata": {"linked_statute_text": "The Court of Wards Act, 1870", "statute": "The Court of Wards Act, 1870"}}, {"text": "Bengal", "label": "GPE", "start_char": 13130, "end_char": 13136, "source": "ner", "metadata": {"in_sentence": "In every division of the provinces subject tothe control of the Lieutenant Governor of Bengal, there shall from and after the passing of this Act, be a Court of\" Wards."}}, {"text": "Section 9", "label": "PROVISION", "start_char": 13439, "end_char": 13448, "source": "regex", "metadata": {"linked_statute_text": "The Court of Wards Act, 1870", "statute": "The Court of Wards Act, 1870"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 14957, "end_char": 14961, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 16179, "end_char": 16183, "source": "regex", "metadata": {"statute": null}}, {"text": "Maxwell", "label": "OTHER_PERSON", "start_char": 16554, "end_char": 16561, "source": "ner", "metadata": {"in_sentence": "In Maxwell on the Interpretation of Statutes, the relevant principle is stated, at p. 168, thus:\n\n\"A general later law does not abrogate an earlier special one by mere implication."}}, {"text": "Brown Wood", "label": "OTHER_PERSON", "start_char": 18136, "end_char": 18146, "source": "ner", "metadata": {"in_sentence": "Exhibit I purports to have been given in favour of Brown Wood, the then Deputy Commissioner of Santhal Pargana, on behalf of the Court of Wards representing the Rohini Ghatwali Estate for the purpose of erecting dwelling houses under ss."}}, {"text": "ss. 1 and 2", "label": "PROVISION", "start_char": 18319, "end_char": 18330, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 114", "label": "PROVISION", "start_char": 18877, "end_char": 18883, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 18891, "end_char": 18910, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bhagalpur Division", "label": "GPE", "start_char": 19846, "end_char": 19864, "source": "ner", "metadata": {"in_sentence": "Indeed, the plaintiff in the plaint does not allege that the Deputy Commissioner was not legally authorized to Act on behalf of the Court of Wards; his only objection is that the document was not countersigned by the Commissioner of Bhagalpur Division."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 20387, "end_char": 20391, "source": "regex", "metadata": {"statute": null}}, {"text": "Court of Wards Act", "label": "STATUTE", "start_char": 20399, "end_char": 20417, "source": "regex", "metadata": {}}, {"text": "s. 8", "label": "PROVISION", "start_char": 20600, "end_char": 20604, "source": "regex", "metadata": {"linked_statute_text": "Court of Wards Act", "statute": "Court of Wards Act"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 20695, "end_char": 20699, "source": "regex", "metadata": {"linked_statute_text": "Court of Wards Act", "statute": "Court of Wards Act"}}, {"text": "s. 13", "label": "PROVISION", "start_char": 20856, "end_char": 20861, "source": "regex", "metadata": {"linked_statute_text": "Court of Wards Act", "statute": "Court of Wards Act"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 21386, "end_char": 21390, "source": "regex", "metadata": {"linked_statute_text": "Court of Wards Act", "statute": "Court of Wards Act"}}]}
{"document_id": "1966_3_672_675_EN", "year": 1966, "text": "K. S. ABDt:L AZEEZ\n\nl'.\n\nRAMANATHAN CHETTIAR & ORS.\n\nFebruary 28, 1966\n\n(P. B.\n\nGAJENDRAGADKAR, C.J., K. N. WANCIIOO,\n\nM. HIDAYATULLAH, J.C. SHAH, A1''D\n\nS. M. S!KRI, JJ.]\n\nThe Representation of the People Act (43 of 1951), s. 36(4) and Conduct of Election Rules, 1961, r. ~Filling up nomination paper with one reserved symbol and leaving tire rest blank-If a defect of \"substantial\n\ncharacter.\"\n\n1bc nomination Form prescribed for election to the State Assembly had a blank space, where a candidate could show three symbols in order of preference as his symbol.\n\nOne of the candidates for election showed only ooe symbol which was reserved for a political party, and left blank the rest of the space. The Returning Officer rejected the nomination paper holding that the defect was of a substantial character. Alleging that the rejection was improper, two voters filed an election petition challenging the election of the appellant who was successful at the ensuing election. The Tribunal dismissed the petition but, on appeal, the High Court set aside the election on the ground that the rejection was improper.\n\nIn appeal to this Court,\n\nHELD: Under s. 36(4) of the Act, the returning officer shall not reject the nomination paper when the defect is not of a substantial character. The mention of the reserved symbol, in the first space and E leaving blank the rest of the space is covered by the phrase, \"failure to complete, or defect in completing, the declaratioo as to symbols,\" in the proviso to r. 4 of the Conduct of Election Rules, and was therefore not defect of a substantial character. [674 E]\n\nI ~\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 435of1965 ...\n\nAppeal from the judgment and order dated March 4, 1963 F of the Madras High Court in Appeal against Order No. 300 of 1962.\n\nR. Ganapathy Iyer, for the appellant.\n\nR. Mahalingier, for respondents Nos. 1 and 2.\n\nThe Judgment of the Court was delivered by G\n\nHidayatullab, J. At the last General Election to the Assembly in the Madras State five candidates filed their nomination papers for the Nilakottai constituency. The appellant K. S. Abdul Az.ccz was one of them and at tqe ensuing election he was successful having polled 4,000 and odd votes in excess of those of his nearest H rival. Four other candidates had filed nomination papers and they included respondents 3 to 5 in this appeal. One of the candidates withdrew and the nomination paper of the 5th respondent\n\n... •\n\n\\ .. ~\n\nI ..\n\nAllDUL AZEEZ V. RAMNATHAN (Hidayatullah, /.) 673\n\n(Peyathevar) was rejected at the scrutiny. He had shown in his nomination paper only one symbol in the spaces provided for three symbols and that was the star which is reserved for the Swatantra Party. He was not the accredited candidate of the Swantantra Party and as he had not shown any other symbol, the nomination paper was held to contain a defect of substance.\n\nAfter the election was over two voters (who are respondents 1 and 2 in this appeal) filed an election petition against the appellant and one of the grounds urged against him was that as the rejection of the nomination paper of Peyathevar was improper, under s. 100 (l)(c) of the Representation of the People Act the election was void.\n\nOther grounds on which the election was challenged need not concern us because nothing turns upon them in this appeal. The Election Tribunal held that the nomination paper was rightly rejected and dismissed the election in petition negativing the other allegations to the election at the same time. On appeal by the two voters the decision of the Tribunal was reversed and it was held that the nomination paper was improperly rejected and the election of the appellant was, therefore, void. On hearing Mr. Ganapathy Iyer and looking into the relevant provision on the subject of symbols we are satisfied that the decision of the High Court was right.\n\nThe matter has to be considered in relation to the Conduct of Election Rules, 1961. Sub-rule(!) of Rule 5 enables the Election Commission to specify the symbols that may be chosen by candidates at elections and the restrictions to which their choice shall be subject. By virtue of this power the Election Commission issued a notification No. So 2316 dated 19th September, 1961 which showed in a table the symbols for the Madras Legislative Assembly elections. Some of these symbols were reserved for recognised political parties and the name of the party was mentioned in brackets against the reserved symbol. Symbols which were not reserved were \"free symbols\" and an independent candidate, such as the appellant, could choose one of them. If two or more independent candidates chose the same free symbols lots were to be drawn. These rules were in the notification and detailed reference to them is hardly necessary because the matter is perfectly plain.\n\nThe question is whether by choosing a symbol reserved for a political party and by leaving blank the space where he could have shown two other symbols as his alternative choice, Peyathevar's\n\nnomination paper became so defective that it was rightly rejected.\n\nIn this connection we have to see the provision of s. 36( 4) of the Representation of the People Act, 1951. Sub-section(4) provides:\n\n\"The returning officer shall not reject any nomination paper on the ground of any defect which is nrt of a substantial character.\"\n\n874 SUPREME COUllT\n\nREPORTS\n\n[1966) 3 S.C.R.\n\nThis sub-section must be read with Rule 4 of the Conduct of Election Rules. It provides as follows:-\n\n\"Every nomination paper presented under subsection (I) of section 33 shall be completed in such one of the Forms 2A to 2E as may be appropriate.\"\n\nThe form appropriate to this election had a blank space where a candidate could show three symbols in order of preference as symbols of his choice. Peyathevar showed only the star in the first space and left blank the other two places. The nomination paper, therefore, did not comply with s. 33 read with Rule 4. The nomination paper was, however, saved by the proviso to Rule 4 which reads:\n\n\"Provided that a failure to complete, or defect in completing, the declaration as to symbols in a nomination paper in Form 2A or Fonn 2B shall not be deemed to be defect of a substantial character within the meaning of sub-section( 4) of section 36.\"\n\nThe Tribunal held that mentioning a reserved symbol and leaving blank the space for alternative symbols, did not come within this proviso and was a defect of substance. The High Court held otherwise and, in our opinion, rightly.\n\nIn so far as the blank space is concerned it showed a failure to complete the declaration as to symbols and where the star was shown as the symbol it amounted to a defect in completing the declaration as to symbol in the nomination paper. In other words, taking the proviso as a whole the mention of the star and leaving blank rest of the space was covered by the composite phrase \"failure to complete or defect in completing the declaration as to symbols.\"\n\nMr. Ganapathy Iyer contends that a defect in completing the symbol is something like putting down \"'two bullocks\" but omitting the words \"with yoke on\" or mentioning the \"ears of corn\" without mentioning \"the sickle\" in describing the reserved symbols for the Congress and the Communist Parties respectively.\n\nWe do not agree. If an independent candidate named \"star,\" \"bicycle\" and \"flower\" as his preferences there would be no defect in the nomination paper except one, namely, that he i!Jcluded the \"star-\" a reserved symbol--to which he was not entitled. The phrase '.'defect in completing the declaration as to symbols\" would obviously cover such a case and there is no difference between that case and this where the star is shown in the first space and the rest of the space\n\ni~ left blank. The intention seems to be that the question of symbols should not play an important part because symbols can be assigned by political parties till the date for withdrawal and nomination paper should not be cancelled during the interval.\n\nD ' • ~\n\nH •\n\n( f\n\n' ·~\n\n' •\n\n-...\n\nABDUL AZEEZ V. RAMNATHAN (Hidayatullah, J.) 675\n\nA On the whole the decision of the High Court was right in the\n\ncircumstances of this case and we see no reason to reverse it. The appeal, therefore, fails and is dismissed but as none appeared to contest it there shall be no order as to costs.\n\nAppeal dismissed.", "total_entities": 33, "entities": [{"text": "S. ABDt:L AZEEZ", "label": "PETITIONER", "start_char": 3, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "K.S. ABDUL AZEEZ", "offset_not_found": false}}, {"text": "RAMANATHAN CHETTIAR & ORS", "label": "RESPONDENT", "start_char": 25, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "RAMANATHAN CHETTIAR & ORS", "offset_not_found": false}}, {"text": "February 28, 1966", "label": "DATE", "start_char": 53, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "February 28, 1966\n\n(P. B.\n\nGAJENDRAGADKAR, C.J., K. N. WANCIIOO,\n\nM. HIDAYATULLAH, J.C. SHAH, A1''D\n\nS. M. S!KRI, JJ.]"}}, {"text": "GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 80, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J", "label": "JUDGE", "start_char": 119, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 138, "end_char": 145, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 177, "end_char": 209, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 36(4)", "label": "PROVISION", "start_char": 224, "end_char": 232, "source": "regex", "metadata": {"statute": null}}, {"text": "Conduct of Election Rules, 1961", "label": "STATUTE", "start_char": 237, "end_char": 268, "source": "regex", "metadata": {}}, {"text": "s. 36(4)", "label": "PROVISION", "start_char": 1152, "end_char": 1160, "source": "regex", "metadata": {"linked_statute_text": "Conduct of Election Rules, 1961", "statute": "Conduct of Election Rules, 1961"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 1614, "end_char": 1642, "source": "ner", "metadata": {"in_sentence": "674 E]\n\nI ~\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "R. Ganapathy Iyer", "label": "LAWYER", "start_char": 1801, "end_char": 1818, "source": "ner", "metadata": {"in_sentence": "R. Ganapathy Iyer, for the appellant."}}, {"text": "R. Mahalingier", "label": "LAWYER", "start_char": 1840, "end_char": 1854, "source": "ner", "metadata": {"in_sentence": "R. Mahalingier, for respondents Nos."}}, {"text": "G\n\nHidayatullab", "label": "JUDGE", "start_char": 1930, "end_char": 1945, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by G\n\nHidayatullab, J. At the last General Election to the Assembly in the Madras State five candidates filed their nomination papers for the Nilakottai constituency."}}, {"text": "K. S. Abdul Az.ccz", "label": "PETITIONER", "start_char": 2108, "end_char": 2126, "source": "ner", "metadata": {"in_sentence": "The appellant K. S. Abdul Az.ccz was one of them and at tqe ensuing election he was successful having polled 4,000 and odd votes in excess of those of his nearest H rival."}}, {"text": "Peyathevar", "label": "WITNESS", "start_char": 2520, "end_char": 2530, "source": "ner", "metadata": {"in_sentence": "One of the candidates withdrew and the nomination paper of the 5th respondent\n\n... •\n\n\\ .. ~\n\nI ..\n\nAllDUL AZEEZ V. RAMNATHAN (Hidayatullah, /.) 673\n\n(Peyathevar) was rejected at the scrutiny."}}, {"text": "Swatantra Party", "label": "ORG", "start_char": 2704, "end_char": 2719, "source": "ner", "metadata": {"in_sentence": "He had shown in his nomination paper only one symbol in the spaces provided for three symbols and that was the star which is reserved for the Swatantra Party."}}, {"text": "Swantantra Party", "label": "ORG", "start_char": 2764, "end_char": 2780, "source": "ner", "metadata": {"in_sentence": "He was not the accredited candidate of the Swantantra Party and as he had not shown any other symbol, the nomination paper was held to contain a defect of substance."}}, {"text": "Peyathevar", "label": "OTHER_PERSON", "start_char": 3115, "end_char": 3125, "source": "ner", "metadata": {"in_sentence": "After the election was over two voters (who are respondents 1 and 2 in this appeal) filed an election petition against the appellant and one of the grounds urged against him was that as the rejection of the nomination paper of Peyathevar was improper, under s. 100 (l)(c) of the Representation of the People Act the election was void."}}, {"text": "s. 100", "label": "PROVISION", "start_char": 3146, "end_char": 3152, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 3167, "end_char": 3199, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ganapathy Iyer", "label": "OTHER_PERSON", "start_char": 3730, "end_char": 3744, "source": "ner", "metadata": {"in_sentence": "On hearing Mr. Ganapathy Iyer and looking into the relevant provision on the subject of symbols we are satisfied that the decision of the High Court was right."}}, {"text": "matter has to be considered in relation to the Conduct of Election Rules, 1961", "label": "STATUTE", "start_char": 3880, "end_char": 3958, "source": "regex", "metadata": {}}, {"text": "Election Commission", "label": "ORG", "start_char": 3994, "end_char": 4013, "source": "ner", "metadata": {"in_sentence": "of Rule 5 enables the Election Commission to specify the symbols that may be chosen by candidates at elections and the restrictions to which their choice shall be subject."}}, {"text": "19th September, 1961", "label": "DATE", "start_char": 4232, "end_char": 4252, "source": "ner", "metadata": {"in_sentence": "So 2316 dated 19th September, 1961 which showed in a table the symbols for the Madras Legislative Assembly elections."}}, {"text": "Madras", "label": "GPE", "start_char": 4297, "end_char": 4303, "source": "ner", "metadata": {"in_sentence": "So 2316 dated 19th September, 1961 which showed in a table the symbols for the Madras Legislative Assembly elections."}}, {"text": "s. 36( 4)", "label": "PROVISION", "start_char": 5145, "end_char": 5154, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 5162, "end_char": 5200, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 33", "label": "PROVISION", "start_char": 5566, "end_char": 5576, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "s. 33", "label": "PROVISION", "start_char": 5944, "end_char": 5949, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "section 36", "label": "PROVISION", "start_char": 6286, "end_char": 6296, "source": "regex", "metadata": {"statute": null}}, {"text": "ABDUL AZEEZ V. RAMNATHAN", "label": "JUDGE", "start_char": 8061, "end_char": 8085, "source": "ner", "metadata": {"in_sentence": "D ' • ~\n\nH •\n\n( f\n\n' ·~\n\n' •\n...\n\nABDUL AZEEZ V. RAMNATHAN (Hidayatullah, J.) 675\n\nA On the whole the decision of the High Court was right in the\n\ncircumstances of this case and we see no reason to reverse it."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 8087, "end_char": 8099, "source": "ner", "metadata": {"in_sentence": "D ' • ~\n\nH •\n\n( f\n\n' ·~\n\n' •\n...\n\nABDUL AZEEZ V. RAMNATHAN (Hidayatullah, J.) 675\n\nA On the whole the decision of the High Court was right in the\n\ncircumstances of this case and we see no reason to reverse it."}}]}
{"document_id": "1966_3_676_681_EN", "year": 1966, "text": "PRABHU\n\nRAMDEV & ORS.\n\nFebruary 28, 1966\n\n[P. B. GAJE:-; DRAGADKAR, c. J., K. N. WA~CHOO, M. J-IIDAYATULLAll, B\n\n1. C. SHAH ASD S. M. SIKRI, JJ.]\n\nTransfer of Property Act (4 of 1882), s. 16(e)-Tenants inducted by mortgagee-When ca11 continue in possession after tenninttion of nrortgage.\n\nThe appellant's father created a usufructuary mortgage of the land m dispute and the mortgagee admitted the respondents as tenants. During the continuance of the mortgage and while the respondents were in po!· session as tenants, the Rajasthan Tenancy Act, 1955, came into orce. lbe mortgage was eventually redeemed but the respondents con!lnued in possession.\n\nThe appellant therefore sued for possession of the land before the revenue authorities and the Board of Revenue in appeal, held that by virtue of the provisions of s. 15 of the Act, the possessioo of the respondents was unassailable, that they could be ejected, in view of s. 161, only in accordance with the provisions of the Act, but that, none of the iirounds available to the appellant had been proved.\n\nThe High C.ourt d1Smissed the writ petition of the appellant challenging the Board's decision.\n\nIn appeal to this Court, on the questi\\'.ln whether the respondents could be ejected on the ground that the mortgage had been redeemed,\n\nHFLD: A; a general rule under s. 76(e) of the Transfer of Property E Act, a mortgagee cannot create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee.\n\nBut the rights of the tenants inducted by the mortgagee may be improved by virtue of statutory provisions which may meanwhile come into operation, and that was pr, cisely what had happened in the present case.\n\nDuring the continuance of the mortgage, s. 15 of Rajasthan Tenancy Act came into operation and 1bat made the respondents Khatedars who are entitled to claim the benefit of s. 161 of that Act.\n\n[680 A-DJ F\n\nMahabir Gope v. llarbans Narain Singh, [1952) S.C.R. 775, explained.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 323 of 1963.\n\nAppeal by special leave from the judgment and order daled October 20. 1961 of the Rajasthan High Court in D. B. Civil Writ G No.41 ofl959.\n\nB. C. Misra and M. V. Goswami, for the appellant.\n\nS. C. Agarwal, for respondent No. I.\n\nR. N. Sachthcy. for respondents Nos. 4 and 5.\n\nThe judgment of the Court was delivered by H Gajendragadkar, C. J. The appellant Prabhu is the owner of agricultural land hcarin!! Khasra Nos. 224, 215, 244, 299, 320, 506,\n\n' •\n\n·-\n\nr •\n\nA 617 and 687 situated in village Nilakpur, Tehsil Behror, District Alwar, in the State of Rajasthan. The appellant's father Jora had executed a usufructuary mortgage of the said land in about 1936 for a period of twenty years in favour of one Ganga Din. After the expiry of the period prescribed by the said mortgage, the appellant obtained a decree for redemption on July 16, 1956. This decree B declared that the mortgage and all encumbrances created by the mortgagee or any person claiming under him were extinguished and directed the mortgagee to deliver possession of the mortgaged property to the appellant.\n\nIt appears that during the continuance of the mortgage, the mortgagee Ganga Din had let out the aforesaid land to respondents I to 3 Ramdev, Yadram and Nathu respectively.\n\nMeanwhile, on October 15, 1955 the Rajasthan Tenancy Act, 1955 (No. 3 of 1955) (hereinafter called 'the Act') had come into force.\n\nOn July 28, 1956, the appellant instituted the present suit for possession of the land in question against the three respondents. This suit was tried by the Sub-Divisional Officer, Behror. In this suit the appellant had alleged that after the redemption decree had been passed in favour of the appellant, the respondents had in fact delivered possession of the property to the appellant, but a few days thereafter they had trespassed into the property and obtained its possession wrongfully. This plea was resisted by the respondents on the ground that they had not surrendered possession of the property to the appellant as alleged by him and that under the relevant provisions of the Act they were entitled to remain in possession of this property. On these pleadings the learned Sub-Divisional Officer framed two issues. They were: No. I. Whether the respondents are trespassers in respect. of foe fields and are liable for ejectment; and No. 2. to what relief, if any, the appellant is entitled to ?\n\nHe found that the respondent> were not trespassers as alleged by the appellant and as such the appellant was not entitled to any relief.\n\nJn the result, the appellant's suit was dismissed.\n\nAgainst this decision the appellant preferred an appeal before the Additional Commissioner, Ajmer. The appellate authority reversed the finding of the trial court and held that the appellant was entitled to eject the respondents. The respondents challenged the correctness of this order by preferring a second appeal before the Board of Revenue for Rajasthan, Ajmer. Their appeal succeeded and in consequence, the order passed by the appellate authority was set aside and that passed by the trial judge was restored. The Board has held that by virtue of the provisions of s. 15 of the Act, the possession of the respondents 1as unassailable and they could\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n[1966] 3 S.C.R.\n\nbe ejected only in accordance with the relevant section of the said Act. Since none of the grounds av;1ilable to the appellant under the Act had been proved, he was not entitled to a claim for cjectment.\n\nThe validity of the Board's decision was challenged hy the appellant by moving the Rajasthan High Court in its writ jurisdiction under A rt. 226 of the Constitution.\n\nIt was urged hy the appellant before the High Court that the order passed hy the Board was plainly erroneous in Jaw and as such should be set aside. This petition, however, failed and was dismissed by the High Court. It is against this decision that the appellant has come to this Court by special leave. ·\n\nThe relevant facts, in the light of which the question of law raised before us by Mr. Misra on behalf of the appellant has to be considered, arc no longer in dispute. The appellant's father created a usufructuary mortgage of the land and during the continuance of the said mortgage the respondents were admitted as tenants.\n\nThe mortgage was eventually redeemed and in spite of the redemption decree the respondents continued in possession of the land.\n\nOn these facts the question which arises for our decision is: whether the respondents, who have been inducted into the land as tenants by the usufructuary mortgagee, can be ejected by the appellant on the ground that the mortgage in question has been redeemed. The answer to this question depends upon the effect of s. 15 of the Act.\n\nBefore dealing with the specific provisions of the said section we may refer to two definitions which are relevant. \"Tenant\" has been defined bys. 5(4:1) of the Act as meaning a person hy whom rent is or but for a contract, express or implied, would he payable and except when the contrary intention appears, shall include a cotenant or a grove-holder or a village scrrnnt or a tenant of khudkasht or a mortgagee of tenancy rights but shall not include a grantee at a favourable rate of rent or an ijaredar or a thekadar or a trespasser. That is how the definition stood at the relevant time. The test prescribed by this definition is that the person can claim to be a tenant if it is shown that rent is payable hy him in respect of the land.\n\nThat test is clearly satisfied by the three respondents in the present case.\n\nThe nc.\\t definition to which it is neccssarv to refer is that of a trespasser. The appellant, in his present suit: has contended that the respondents are trespassers. A •'trespasser\" has heen defined hy s. 5(44) of the Act as meaning a person who takes or retains possession of unoccupied land without authority or who prevents another person from occupying land duly let out to him. That is how the definition read at the material time. It is plain that the respondents do not fall within the definition of \"trespasser\" as prescribed by this clause.\n\n\\'. .\n\n\\ •\n\n' '1 •'\n\nLet us now refer to s. 15 as it stood at the relevant time. Section 15 provides, inter alia, that subject to the provisions of s.16 every person who, at the commencement of this Act, is a tenant of land, shall, subject to the provisions of this Act and subject further to any contract not contrary to s. 4 be entitled to all the right conferred and be subject to all the liabilities imposed on Khatedar tenants under the Act. In other words, as soon ass. 15 came into operation on October 15, 1955, the .Possession of the respondents, who had been inducted into the Jana by the mortgagee was substantially altered and they became Khatedars by virtue of the statutory provisions prescribed by s.15. Section 161 of the Act provides that no tenant shall be ejected from his holding otherwise than in accordance with the provisions of this Act. The position thus is clear that as soon as the Act came into force the respondents were entitled to the benefits of s.15 and cannot be ejected except under the provisions ox the Act in view of s. 161.\n\nIt is because of these provisions that the appellant was driven to make the plea that the respondents were trespassers inasmuch as they had voluntarily surrendered possession of the land to him after the redemption decree 'was passed and had wrongfully entered into possessjon thereafter. That pica has not been proved and the matter falls to be considered squarely within the provisions of ss.15 and 161 of the Act.\n\nIt is true thats. 183of the Act provides for the ejectment of a trespasser but that section has no application to this case inasmuch as the respondents cannot be held to be trespassers at all.\n\nMr. Misra, however, contends that there are two decisions of this.\n\nCourt which support his case that tenants introduced by the mortgagee during the continuanOe of the mortgage can have no claim to remain in possession of the land after the mortgage itself has been redeemed and he argues that the said principle would justify the appellant's claim for ejecting the respondents in the present case.\n\nIn_ Mahabir Gape and Others v. Harbans Narain Singh and Others(!), this Court has held that as a general rule a person cannot, by transfer or otherwise, confer a better title on another than he himself had.\n\nA mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee. In consequence any lease granted by a morgagee in possession must come to an end at redemption.\n\nA mortgagee, cannot, during the subsistence of the mortgage, act in a manner detrimental to the mortgagor's interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the fields thereby defeating the mortgagor's right to khas possession; such an act would fall within the provisions of s. 76, subclause (e) of the Transfer of Property Act. It is on these observations that Mr. Misra founds his argument.\n\n(1) (1952] s.c.R. 775: A.LR. 1952 s.c. 205.\n\nI '\n\n• j\n\nA In the result, the view taken by the Board about the status of the respondents is right and the High Court was, therefore, justified in dismissing the appellant's writ petition filed before it. The appeal therefore fails and is dismissed with costs. Costs in favour of B respondent No. 1.\n\nAppeal dismissed.", "total_entities": 45, "entities": [{"text": "PRABHU", "label": "PETITIONER", "start_char": 0, "end_char": 6, "source": "metadata", "metadata": {"canonical_name": "PRABHU", "offset_not_found": false}}, {"text": "RAMDEV & ORS", "label": "RESPONDENT", "start_char": 8, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "RAMDEV & ORS", "offset_not_found": false}}, {"text": "February 28, 1966", "label": "DATE", "start_char": 23, "end_char": 40, "source": "ner", "metadata": {"in_sentence": "February 28, 1966\n\n[P. B. GAJE:-; DRAGADKAR, c. J., K. N. WA~CHOO, M. J-IIDAYATULLAll, B\n\n1."}}, {"text": "1. C. SHAH ASD S. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 113, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 147, "end_char": 171, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 16(e)", "label": "PROVISION", "start_char": 185, "end_char": 193, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Property Act", "statute": "Transfer of Property Act"}}, {"text": "Rajasthan Tenancy Act, 1955", "label": "STATUTE", "start_char": 524, "end_char": 551, "source": "regex", "metadata": {}}, {"text": "s. 15", "label": "PROVISION", "start_char": 816, "end_char": 821, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Tenancy Act, 1955", "statute": "the Rajasthan Tenancy Act, 1955"}}, {"text": "s. 161", "label": "PROVISION", "start_char": 925, "end_char": 931, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Tenancy Act, 1955", "statute": "the Rajasthan Tenancy Act, 1955"}}, {"text": "s. 76(e)", "label": "PROVISION", "start_char": 1323, "end_char": 1331, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Tenancy Act, 1955", "statute": "the Rajasthan Tenancy Act, 1955"}}, {"text": "s. 15", "label": "PROVISION", "start_char": 1753, "end_char": 1758, "source": "regex", "metadata": {"statute": null}}, {"text": "Rajasthan Tenancy Act", "label": "STATUTE", "start_char": 1762, "end_char": 1783, "source": "regex", "metadata": {}}, {"text": "s. 161", "label": "PROVISION", "start_char": 1885, "end_char": 1891, "source": "regex", "metadata": {"linked_statute_text": "Rajasthan Tenancy Act", "statute": "Rajasthan Tenancy Act"}}, {"text": "B. C. Misra", "label": "LAWYER", "start_char": 2191, "end_char": 2202, "source": "ner", "metadata": {"in_sentence": "B. C. Misra and M. V. Goswami, for the appellant."}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 2207, "end_char": 2220, "source": "ner", "metadata": {"in_sentence": "B. C. Misra and M. V. Goswami, for the appellant."}}, {"text": "S. C. Agarwal", "label": "LAWYER", "start_char": 2242, "end_char": 2255, "source": "ner", "metadata": {"in_sentence": "S. C. Agarwal, for respondent No."}}, {"text": "R. N. Sachthcy", "label": "LAWYER", "start_char": 2280, "end_char": 2294, "source": "ner", "metadata": {"in_sentence": "I.\n\nR. N. Sachthcy."}}, {"text": "H Gajendragadkar", "label": "JUDGE", "start_char": 2370, "end_char": 2386, "source": "ner", "metadata": {"in_sentence": "The judgment of the Court was delivered by H Gajendragadkar, C. J. The appellant Prabhu is the owner of agricultural land hcarin!!"}}, {"text": "Prabhu", "label": "PETITIONER", "start_char": 2408, "end_char": 2414, "source": "ner", "metadata": {"in_sentence": "The judgment of the Court was delivered by H Gajendragadkar, C. J. The appellant Prabhu is the owner of agricultural land hcarin!!", "canonical_name": "PRABHU"}}, {"text": "Jora", "label": "OTHER_PERSON", "start_char": 2640, "end_char": 2644, "source": "ner", "metadata": {"in_sentence": "The appellant's father Jora had executed a usufructuary mortgage of the said land in about 1936 for a period of twenty years in favour of one Ganga Din."}}, {"text": "Ganga Din", "label": "OTHER_PERSON", "start_char": 2759, "end_char": 2768, "source": "ner", "metadata": {"in_sentence": "The appellant's father Jora had executed a usufructuary mortgage of the said land in about 1936 for a period of twenty years in favour of one Ganga Din."}}, {"text": "Ramdev", "label": "RESPONDENT", "start_char": 3264, "end_char": 3270, "source": "ner", "metadata": {"in_sentence": "It appears that during the continuance of the mortgage, the mortgagee Ganga Din had let out the aforesaid land to respondents I to 3 Ramdev, Yadram and Nathu respectively.", "canonical_name": "RAMDEV & ORS"}}, {"text": "Yadram", "label": "RESPONDENT", "start_char": 3272, "end_char": 3278, "source": "ner", "metadata": {"in_sentence": "It appears that during the continuance of the mortgage, the mortgagee Ganga Din had let out the aforesaid land to respondents I to 3 Ramdev, Yadram and Nathu respectively."}}, {"text": "Nathu", "label": "RESPONDENT", "start_char": 3283, "end_char": 3288, "source": "ner", "metadata": {"in_sentence": "It appears that during the continuance of the mortgage, the mortgagee Ganga Din had let out the aforesaid land to respondents I to 3 Ramdev, Yadram and Nathu respectively."}}, {"text": "October 15, 1955", "label": "DATE", "start_char": 3318, "end_char": 3334, "source": "ner", "metadata": {"in_sentence": "Meanwhile, on October 15, 1955 the Rajasthan Tenancy Act, 1955 (No."}}, {"text": "Rajasthan Tenancy Act, 1955", "label": "STATUTE", "start_char": 3339, "end_char": 3366, "source": "regex", "metadata": {}}, {"text": "July 28, 1956", "label": "DATE", "start_char": 3439, "end_char": 3452, "source": "ner", "metadata": {"in_sentence": "On July 28, 1956, the appellant instituted the present suit for possession of the land in question against the three respondents."}}, {"text": "Behror", "label": "GPE", "start_char": 3617, "end_char": 3623, "source": "ner", "metadata": {"in_sentence": "This suit was tried by the Sub-Divisional Officer, Behror."}}, {"text": "Additional Commissioner, Ajmer", "label": "RESPONDENT", "start_char": 4698, "end_char": 4728, "source": "ner", "metadata": {"in_sentence": "Against this decision the appellant preferred an appeal before the Additional Commissioner, Ajmer."}}, {"text": "Board of Revenue for Rajasthan, Ajmer", "label": "ORG", "start_char": 4959, "end_char": 4996, "source": "ner", "metadata": {"in_sentence": "The respondents challenged the correctness of this order by preferring a second appeal before the Board of Revenue for Rajasthan, Ajmer."}}, {"text": "s. 15", "label": "PROVISION", "start_char": 5203, "end_char": 5208, "source": "regex", "metadata": {"statute": null}}, {"text": "Misra", "label": "OTHER_PERSON", "start_char": 6096, "end_char": 6101, "source": "ner", "metadata": {"in_sentence": "The relevant facts, in the light of which the question of law raised before us by Mr. Misra on behalf of the appellant has to be considered, arc no longer in dispute."}}, {"text": "s. 15", "label": "PROVISION", "start_char": 6780, "end_char": 6785, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(44)", "label": "PROVISION", "start_char": 7825, "end_char": 7833, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 8215, "end_char": 8220, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 15", "label": "PROVISION", "start_char": 8255, "end_char": 8265, "source": "regex", "metadata": {"statute": null}}, {"text": "s.16", "label": "PROVISION", "start_char": 8322, "end_char": 8326, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 8496, "end_char": 8500, "source": "regex", "metadata": {"statute": null}}, {"text": "s.15", "label": "PROVISION", "start_char": 8887, "end_char": 8891, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 161", "label": "PROVISION", "start_char": 8893, "end_char": 8904, "source": "regex", "metadata": {"statute": null}}, {"text": "s.15", "label": "PROVISION", "start_char": 9152, "end_char": 9156, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 161", "label": "PROVISION", "start_char": 9229, "end_char": 9235, "source": "regex", "metadata": {"statute": null}}, {"text": "ss.15 and 161", "label": "PROVISION", "start_char": 9629, "end_char": 9642, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76", "label": "PROVISION", "start_char": 11036, "end_char": 11041, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 11064, "end_char": 11088, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1966_3_682_697_EN", "year": 1966, "text": "B. N. NAGARAJAN AND ORS.\n\nSTATE OF MYSORE AND ORS.\n\nMarch I, 1966\n\n[P. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO,\n\nM. HIDAYATULLAH, J.C. SHAH\n\nA?\\D S. M. SIKRI, JJ.]\n\nConstitatlon <>f India, Ari. 309, proviso-Scope of.\n\nMysore State Civil Services (General Recruitmenl) Ru/ts 1957 r. J-.\n\nProvision for service rules to be mod• for each servict-Whether in ab.fence o/ such niles has effect of suspending e.xecutl>\"e power of S11#e wuler Art. 162 to makt! service appointments.\n\nMysore Public Works, Engineering Deparlment Services (Rtcruitment) Rules 1960-Considered-Mysore Public Service Commission (Functions) Rules, 1951-Whethtr statutory rules under Ari. 309.\n\nBy notifications issued in October 1958, May 1959 and April 1960, the Mysore Public Service Commission invited applications for the recruitment of 80 probationary Assistant Engineers. The quali.flcatiom, pay, age limit and other conditions for eligibility were prescribed by ihese notifications.\n\nOn March I, 1960, it was notified by the Governor, that for direct recruitment to appointments and posts in the services of the State, reservations for Scheduled Castes and Scheduled Tribes would be !511'o and 3 % ; and the reservation for other backward classes would be 259'.\n\nThereafter, in October and November 1960, the Mysore Public Service Commi~•ion intervi-\"wed the candidates and sent a list to the Government of 80 candidates selected by them.\n\nOn December 3, 1960, the Government of Mysore sanctioned ti\" establishment of the State Service Cadre in respect of the Mysor> Public \\Vorks Engineering Department Service.\n\nOn the same date, in exercise of the powers conferred by the proviso to Art. 309 the Governor made\n\nthe rules called the Mysore Public Service Engineering Departmmt Service (Recruument) Rules 1960. These Rules prescribed in respect of each category of specified posts the methods of recruitment, whereby\n\nonly 40% of the appointment could be made after an intcrvi-ew and an oral test and also prescribed the minimum qualifications, age limita, etc. for Assistant Engineers which were somewhat different from thoeo prescribed in the earlier Notifications of the Mysore Public Service Commission relating to the recruitment of 80 A;; sistant Engineers.\n\nOn October 23, 1961 the Governor mado cenain amendments to !he 1960 Rules the effect of which W3'' to make those rules retrospectift wilh effect from March I. 1958 :md also to waive the requirements ol the rule• relating to the percentages for direct recruitment, educational qualifications. and age requirement., etc. in respect of direct recruitment of Assi<tant Engineers for the first time.\n\nThereafter, on October 31, 1961, the Governor appointed 88 candidatec; as probationary Ac; c; istant Engineers. These appointments\n\n'INTO challenged in 16 Writ Petition. filed in the High Court on the rouads inter a/la, that (i) in view of Rule 3 of the Mysore Stale Civil Servioeo\n\nI !'\n\nI ' •\n\n• ' f'\n\n'-•\n\n(General Recruitment) Rules, 1957, which providd that. the method of recruitment and qualifications for each State .C1v1l S<:\"\"ce shall . be set forth in the rules of recruitment of such service specially made 10 that behalf, the Government could not recruit the Assistant Engineers without framing the necessary rules; (ii) the State Government could not make rules retrospectively unless it had express powers to do so under the rele\\'ant statute; (iii) the appointments which were made on <?ctober 31 1951 had to be made in accordance with the 1960 Rules but m fact wre not so made; (iv) some of the appointments were made ma/a fide.\n\nThese writ petitions were allowed by the High Court.\n\nOn appeal to this Court, HELD : The appointments of the 88 Assistant Engineers were validly made in the exercise of the executive power of the State under Art. 162 of the Constitution.\n\nIt is not obligatory under the provise> IC> Art. 309 le> make rules e>f recruitment etc. before a service can be constituted or a post created or filled.\n\nThe State Ge>vernment has executive power in relation IC> all matters with res~ IC> which the Legisla!Ure of the State ha& power to make laws.\n\nIt follows from this that the State Government will llave executive power in respect of List II Entry 41 \"State Public Services\".\n\n1686 C-EJ\n\nIn this background, Rule 3 of the General Recruitment Rules of 1957 cannot be interpreted as suspending the executive power of the State till rules of recruitment of a service are specially made in that b• half.\n\n[686 GJ Ram Jawaya Kapur v. State of Punjab,\n\n[1955] 2 S.C.R. 225 and T. Cajee v. K. Jormanic Siem, [1961] 1 $.C.R. 750, referred to.\n\nEven if it were to be assumed that the rules purported to be made by the State GoYernment had no retr0<pective validity the position wrnld be that there were no statutory rules governing the appointment of the 88 Assistant Engineers; but that could not prevent the State Ge>vernment from making valid appe>intrnents in the exercise of its executive pe>wers. [694 Fl\n\nIt cannot be said that the appointments made in Octe>ber 1960 had to be under statute>ry rules made on December 3, 1960. It te>ok about !Wo years for. the Public Service Commission to publish notificatie>ns, mterv1ew candidates and recommend names fo'r appointment.\n\nThe whole procedure having been followed, it could not have been the intention of !1Je Ge>vernment, while framing te rules, le> cover appointments made 10 pursuance of the recommendations of the Public Service Commission made In November 1960 after interviewing the candidates in October 1960.\n\n[694 G-695 BJ On the facts, no ma/a fide or collateral object had been proved.\n\nThe Mysore Public Service Commission (Function) Rules 1957 are not statutory rules made under Art. 309.\n\nFirst, the rules do ne>t expressly say se>; and secondly, they deal with the function• of the Commission rather than with the rules regarding recruitment to services or posts. [685 EJ CML APPELLA1E JURISDICTION: Civil Appeals Nos. 430- 461 of 1964 •\n\nAppeals from the judgment and order dated October 11, 1962 of the Mysore High Court in Writ Petitions Nos. 1248, 1267, 1269, 1294-1298, 1311, 1312, 1318, 1341, 1354, 1355, 1382 and 1384.\n\n684 SuPllEMI! COU&T llJ!POllTS [1966 j 3 S.CJl.\n\nM. C. Seta/vad, S. C. Javali, O. C. Mathur, J. B. Dadachanji, and Ravinder Narain, for appellants Nos. 1-4, 6-45 and 48-76 (in C. As. Nos. 430-445 of 1964).\n\nA. K. Sen, B. R. L. Iyengar and B. R. G. K. Achar for respondents Nos. 2 and 3 (in C. As. Nos. 430-445 of 1964) and Appellants (in C. A. Nos. 446-461 of 1964).\n\nM. K. Nambyar, S.\n\nN. Andie)', Rameshwar Nath and P. L.\n\nVohra, for respondents (in C. As. Nos. 446, 447, 449-452, 456 and 459 of 1964).\n\nJ. B. Dadadwnji, 0. C. Marhur and Ravinder Narain, for the Intervener.\n\nThe Judgment of the Court was delivered by Sikri, J. These appeals, by special leave, are directed against the judgment of the High Court of Mysore at Bangalore in 16 Writ Petitions filed before it, quashing the notification of the Government bearing No. P. W. 10 SAG 59 dated October 31, 1961,\n\nand the appointments made thereunder of 88 Assistant Engineers D in the Public Works Department of the State Government.\n\nTo appreciate the arguments addressed to us on behalf of the appellants and the respondents, it is necessary to give, in chronological order, the events leading up to the filing of the above writ petitions and their significance.\n\nOn December 12, 1957, the Governor of Mysore made rules called the Mysore Public Service E Commission (Functions) Rules, 1957, hereinafter called the Functions Rules, relating to the functions of the Mysore Public Service Commission. Ruic 3 of these rules provides for recruitment by examination and r. 4 with which we are primarily concerned provides for recruitment by selection.\n\nRule 4 is as follows :\n\n\"When recruitment to a service or post is to be made F by selection, and consultation with the Commission is required, the Commission shall\n\n(I) advise the Government in regard to the conditions of eligibility of candidates;\n\n(2) after the rules to be made have been approved by Government and a requisition for recruitment is received, invite applications from intending candidates after giving due publicity to conditions of eligibility, nature of competition, number of vacancies to be filled where possible, and any other relevant material;\n\n(3) consider all applications received and when necessary interview such candidates as fulfil the prescribed conditions and whom it considers most suitable for appointment;\n\nI '\n\n• '\n\n• •\n\n...\n\n' ~,\n\n...\n\nNote.-Nothing contained herein shall preclude the Commission from considering the case of any candidate possessing the prescribed qualifications brought to its notice by Govermnent, even if such a candidate has not applied in response to the advertisement of the Govermnent.\n\n( 4) forward to the Appointing Authority a list consisting of such number as it may fix, of the candidates whom the commission considers most suitable for appointment in order of preference;\n\nProvided that the Commission may invite Government to nominate an Officer to represent the Service or the Department for whom recruitment is being made, to be present at the interview referred to in clause (3) to assist the Commission in its work of selection.\"\n\nWe may here dispose of the point whether these rules are executive rules or statutory rules made under art. 309 of the Consti tution. The High Court held that \"there can be little doubt that to the extent the Rules deal with the topic of regulating recruitment to Civil Services under the State, the source of the power could only be the proviso to art. 309 of the Constitution.\" In our opinion, these rules are not rules made under art. 309. First, the rules do not expressly say so, and secondly, the rules are dealing with the functions of the commission rather than with laying down the rules regarding recruitment to services or posts. Under art. 320 (3) of the Constitution, it is the duty of the Govermnent to consult and the duty of the Public Service Commission to advise, inter alia \"on the principles to be followed in making appointments to civil services and posts ..... and on the suitability of candidates for such appointments, promotions or transfers.\" Sub-rule (I) of r. 4 clearly provides the same thing as does art. 320 (3) (b) and the other sub-rules are really administrative arrangements apparently arrived at between the Commission and the Government as to how the Government and the Public Service Commission will take steps to recruit persons for the State Services or posts.\n\nTo resume the narrative, on February 10, 1958, the Governor of Mysore, in exercise of the pow en; conferred by the proviso to art. 309 of the Constitution, made the Mysore State Civil Services (General Recruitment) Rules, 1957, hereinafter called the General Recruitment Rules. There is no dispute that these are statutory H rules and in so far as they direct anything to be done in a particular way, the Government would have to comply with the directions.\n\nRule 3 of these Rules, on which reliance has been placed by the learned counsel for the respondents to urge that the Government MIJSup Cl/66-12\n\n586 SUPllEMll COURT RJIPOl.TS\n\n(1966] 3 S.C.R.\n\ncannot recruit Assistant Engineers without framing rules, is in the following terms:\n\n\"Method of recruitment.-Recruitment to the State Civil Services shall be made by competitive examination or by promotion. The method of recruitment and qualifications for each State Civil Service shall be as set forth in the rules of recruitment of such service specially made in that behalf.\"\n\nIt would be convenient to deal with this argument at this stage. Mr. Nambiar contends that the words \"shall be as set forth in the rules of recruitment of such service specially made in that behalf\" clearly show that tiil the rules arc made in that behalf no recruitment can be made to any service. We are unable to accept this contention. First it is not obligatory under proviso to art. 309 to make rules of recruitment, etc., before a service can be constituted or a post created or filled. This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in rules. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power to make laws. It follows from this that the State Government will have executive power in respect of List II, Entry 41, State Public Services. It was settled by this Court in Ram Jawaya Kapur v.\n\nThe State of Punjab(') that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive arc limited merely to the carrying out of these laws. We see nothing in the terms of art. 309 of the Constitution which abridges the power of the executive to act under art. 162 of the Constitution without a law. It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under art. 162 of the Constitution ignore or act contrary to that rule or act.\n\nIn the background of this position we are unable to Interpret r. 3 of the General Recruitment Rules as suspending the executive power of the State till rules of recruitment of a service arc specially made in that behalf. Rules usually take a long time to make; various authorities have to be consulted and it could not have been the intention of r. 3 of the General Recruitment Rules, 1957, to halt the working of the public departments till rules were framed. This Court considered a similar point in T. Cajee v.\n\nU. Jonnanik Siem(2) and arrived at a similar conclusion. The following observations of Wanchoo, J., who delivered the judg-\n\n(!) (19SS) 2 S.C.R. 22S.\n\n(2) (1961) I S.C.R. 750, 762-764.\n\nA -\n\n• •\n\nD • -\n\nr r\n\nI ·•\n\n' ,\n\nment on behalf of the majority, bring out clearly the fallacy in Mr.\n\nNambiar's argument:\n\n\"The High Court has taken the view that the appointment and succession of a Siem was not an administrative function of the District Council and that the District Council could only act by making a law with the assent of the Governor so far as the appointment and removal of a Siem was concerned. Jn this connection, the High Court relied on para 3 (I) (g) of the Schedule, which lays down that the District Council shall have the power to make laws with respect to the appointment and succession of Chiefs and Headmen. The High Court seems to be of the view that until such a law is made there could be no power of appointment of a Chief or Siem like the respondent and in consequence there would be no power of removal either. With respect, it seems to us that the High Court has read far more into para 3 (1) (g) than is justified by its language. Paragraph 3 (I) is in fact something like a legislative list and enumerates the subjects on which the District Council is competent to make Jaws. Under para 3 (!) (g) it has power to make laws with respect to the appointment or succession of Chiefs or Headmen and this would naturally include the power to remove them. But it does not follow from this that the appointment or removal of a Chief is a legislative act or that no appointment or removal can be made without there being first a Jaw to that effect.\"\n\n\"Further once the power of appointment falls within the power of administration of the district the power of removal of officers and others so appointed would necessarily follow as a corollary. The Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under para 19 (!) (b) or till the District Council passed Jaws under para 3 (I) (g). The Governor in the first instance and the District Councils thereafter were vested with the power to carry on the administration and that in our opinion included the power to appoint and remove the personnel for carrying on administration. Doubtless when regulations are made under para 19 (1) (b) or Jaws are passed under para 3 (1) with respect to the appointment or removal of the personnel of the administration, the administrative authorities would be bound to follow the regulations so made or the laws so passed. But from this it does not follow that till the regulations were made or the laws were passed, there could be no appointment or dismissal\n\nfi88 SVPREME COUllT llJ!POllTS [1966] 3 S.C.ll.\n\nof the personnel of the administration. In our opinion, the authorities concerned would at all relevant times have the power to appoint or remove administrative personnel under the general power of administration vested in them by the Sixth Schedule. The view therefore taken by the High Court that there could be no appointment or removal by the District Council without a law having been first passed in that behalf under para 3 (1) (g) cannot be sustained.\"\n\nMr. Nambiar in this connection also relied on arts. 15 and 16 of the Constitution. He urged that if the executive is held to have power to make appointments and lay down conditions of &ervice without making rules in that behalf under the proviso to art. 309, arts. 15 and 16 would he breached because the appointments in that case would be arbitrary and dependent on the mere whim of the executive. We arc unable to hold that arts. I 5 and 16 in any way lead us to this conclusion. If the Government advertises the appointments and the conditions of service of the appointments and makes a selection after advertisement there would\n\nbe no breach of art. 15 or art. 16 of the Constitution because everybody who is eligible in view of the conditions of service would be entitled to be considered by the State.\n\nIn conclusion we hold that r. 3 of the General Recruitment Rules, 1957, did not prevent the State from exercising its executive power of appointing Assistant Engineers and determining their i: conditions of service by executive order.\n\nI Mr. Nambiar had at one stage contended that rules existing in the constituent parts of the new State of Mysore would be available for recruitment as they had been continued under the States Reorganisation Act, but it seems to us that these rules would not be available for recruitment purposes because the Govern- F ment would be recruiting Assistant Engineers for the whole State and not for each of the constituent parts of the State. We may clarify that these remarks only deal with recruitment rules.\n\nThis brings us to the next event, and that is Notification No E. 2666-58-9PSC dated October I, 1958, issued by the Mysore Public Service Commission inviting applications in the prescribed G form from qualified l ndian citizens for recruitment of 40 Probationary Assistant Engineers in the Executive Cadre of the Mysore Public Works Department. The Notification prescribes the qualifications, pay, age limit, other conditions for eligibility, fee payable and the particulars of the candidates required to be furnished. On March 4, 1959, the Governor of Mysore in exercise of the powers H ronferred by the proviso to art. 309 prescribed the maximum age limits fOi rlircct recruitment of graduates in Engineering for the posts of Supervisors and Assistant Engineers in the Mysore\n\n. '\n\n.. >\n\n. .\n\nA Public Works Department. These age limits were to prevail until the rules of recruitment specially applicable to Mysore Public Works Department were promulgated. The maximum age limits were made retrospective. It was further provided that \"anything done or any action taken by the Public Service Commission or other authority in respect of recruitment of Probationary Assistant B Engineers between September 1, 1958 and the date of this Notification shall be deemed to have been done or taken under the\n\nproisions of this Notification.\"\n\nOn the same date the Secretary to the Government of Mysore, Public Works Department, Bangalore, wrote to the Secretary, Public Service Commission, Bangalore, stating inter alia, that;\n\n\"The Public Service Commission has already taken action to recruit forty probationers in the Public Works Department for being absorbed as Assistant Engineers in due course after satisfactory completion of their training. I am to request the Public Service Commission to take action straightway to invite applications and send a list of 80 candidates in all for appointment as Probationers in the Department.\"\n\nThis clearly shows that the Government was aware of the action taken by the Public Service Commission in issuing the Notification dated October I, 1958.\n\nAfter receipt of this letter, the Public Service Commission issued a Notification on May 4, 1959, inviting applications \"from qualified Indian citizens of all classes for recruitment of 80 Probationary Assistant Engineers in the Executive Cadre of the Mysore Public Works Department, including the 40 posts already advertised in this office Notification No. E-3666-58 P.S.C. dated October I, 1958\". This Notification laid down the qualifications, pay during the period of probation, age limits, etc. The age limits prescribed were the same as in the State Government Notification dated March 4, 1959. The Public Service Commission Notification further included the usual particulars required to be furnished by the candidates. On March I, 1960, the Governor issued a notification containing Order No. GAD 7 ORR 60 dated March I, 1960, ordering \"that for direct recruitment to appointments and posts in the services of the State, reservation for Scheduled Caste and Scheduled Tribes shall be 15 % and 3 %. The reservation for other backward classes shall be 25 %· The rest of the appointments and posts shall be filled up on the basis of merit and shall be open to all classes.\"\n\nThe Public Service Commission then issued a Notification dated April I, 1960, inviting applications for filling up of various posts in the several departments of Government of Mysore,\n\n690 SUPllBMB COUllT llllPOl.TS\n\n(1966] 3 S.C.R.\n\nincluding the 80 Probationary Assistant Engineers in the Public Works Department. These were included in Part 'A' of the Notification, and it was provided inter alia in para 22 of the Notification as follows :\n\n\"22. lMPORTANT NOTE :\n\n(i) The vacancies detailed in Part 'A' of the Statement were previously advertised in this office notifications noted in column 8 against each item and such of the candidates who have already applied for the said vacancy/vacancies in response to the previous notification need not apply again.\n\nBut they may furnish additional information, if any, if they so desire.\n\n(ii) Applications already received in this office for the vacancies under Part 'A' will be considered on the basis of the revised classification issued by Government in their Order No. GAD 7 ORR 60, dated the I st March, 1960.\n\n(iii) The qualifications, period of experience/training or service, the minimum and maximum age limits and all other requirements to be satisfied by the candidates for all the vacancies under Part 'A' in the statement shall be determined as on the dates noted against each item of vacancy/vacancies in column 9 of the statement.\n\n(iv) Such of the candidates who do not satisfy these conditions as on the dates noted in column 9 of the statement in respect of Part 'A' vacancies, will not be eligible for the posts.\"\n\nColumn 8 of the statement mentions the previous notifications dated May 4, 1959 and October 1, 1958, and column 9 mentions the date \"June 8, 1959\". Column 5 prescribes the qualifications as follows\n\n\"A degree in Engineering (Civil or Mechanical) or an equivalent Examination. In addition candidates must have also either undergone practical training or rendered a service in the Technical Cadre of the P.W.D. for a minimum of 6 months. (A certificate to that effect issued by the Principal of the college or superior officer under whom they have undergone training or arc working must accompany the application.\"\n\nThe maximum age limits were prescribed as under\n\n\"33 years for Scheduled caste and scheduled tribes. 31 years for others, 35 years in the case of government servants holding substantive appointments or having\n\nD ..\n\n< •\n\n• .\n\n~ .\n\n> •\n\ncontinuous government service for a period of not Jess than 3 years.\"\n\nIn October 1960 the Mysore Public Service Commission interviewed the candidates and on November 2, 1960, the Commission sent to the Government a list of 80 candidates selected by them. On December 3, 1960, the Government of Mysore sanctioned the establishment of the State Service Cadre in respect of Mysore Public Works Engineering Department Service. On the same date, in exercise of the powers conferred by the proviso to art. 309, the Governor of Mysore made the rules called the Mysore Public Works Engineering Department Services (Recruitment) Rules, 1960. It prescribed, in respect of each category of posts specified in column 1 of the Schedule, methods of recruitment and the minimum qualifications and the period of probation, if any. For Assistant Engineers, the method of recruitment prescribed was 40 per cent by direct recruitment by the Public Service Commission after interview and oral test; 50 per cent by promotion from the cadre of Junior Engineers, and 10 per cent by promotion from the cadre of Supervisors. It prescribed the minimum qualifications and age as follows:\n\n\"For Direct Recruitment\n\nAge-Not above 31 years. A pass in Civil or Mechanical Engineering or a Certificate or Diploma from the Institute of Engineers that the candidate has passed Parts A. B. of the Associate Membership of the Institute of Engineers or equivalent qualification with practical training for not less than 6 months during or after the course.'' One G. Govindaraju, Junior Engineer, filed a petition under art. 226 of the Constitution for a mandamus to the State Government prohibiting the appointment of 80 persons selected by the Public Service Commission. It was contended by him that on December 3, 1960, under the proviso to art. 309 of the Constitution the Governor had made rules regulating the recruitment to the posts of Assistant Engineers, and that under those rules, forty per cent of the appointments alone could be made by the Public Service Commission after an interview and an oral test. Various other arguments were urged before the High Court. The Advocate-General stated before the High Court on behalf of the State Government that the list having been prepared by the Public Service Commission in response to the request made by the State Government in the exercise of its executive power which it possessed under art. 162 of the Constitution, the State Government was not bound to make appointments only in accordance with that list, and that it was open to the State Government not to appoint any of those persons or to appoint only those persons who, in its\n\n692 SUPREMB COUllT lll!POJ.TS\n\n(1966) 3 S C.R.\n\nopinion, should be appointed amongst them. The High Court felt that this statement made before it by the Advocate-General rendered unnecessary any investigation into the contention urged on behalf of the petitioner at that stage. The High Court further observed a! follows:\n\n\"It would be for the State Government, before it takes a decision on that question, to consider the effect of Rule 4{2) of the Public Service Commission (Function) Rules, made on December IO, 1957, Rules 3 and 4 of the Mysore Stale Civil Services General Recruitment Rules, which came into force on February 10, 1958, and of the Mysore Public Works Engineering Department Service (Recruitment) Rules, which came into force on December 3, 1960, and to further consider whether in the light of those provisions, appointments could be made to the posts of Assistant Engineers, except in accordance with the provisions of the Rules which came into force on December 3, 1960. On this question,· we should not, in my opinion, express any opinion at this stage.\"\n\nWith these observations, the High Court dismissed the petition as premature. This order was passed on September 29, 1961.\n\nOn October 23, 1961, in exercise of the powers conferred by the proviso to art. 309 of the Constitution and all other powers enabling him in that behalf, the Governor of Mysore made certain amendments to the Mysore Public Works, Engineering Department Services (Recruitment) Rules, 1960. The effect of these amendment!, if valid, was to make the Mysore Public Works Engineering Department Services (Recruitment) Rules, 1960, retrospective with effect from the first day of March, 1958. Para 3 of this Notification further provided:\n\n\"3. To rule 2, the following proviso shall be added and shall be deemed always lo have been added, namely :-\n\n\"Provided that in respect of direct recruitment of Assistant Engineers for the first time under these rules the percentages relating to direct recruitment and recruitment by promotion specified in column 2 of the Schedule shall not be applicablo and the minimum qualifications and the period of probation shall be the following, namely:-\n\nQualifications-The candidates must be a graduate in Engineering (Civil or Mechanical) ormust have passed an equivalent examination and must have either undergone practical training or rendered service in a technical cadre in the Public Works Department for a minimum period\n\n' •\n\n' c\n\nD • •\n\nF -. ,\n\nNAGARAJAN v. MYSORI! (Sikri, /,)\n\nnot less than six months. A certificate to that effect issued by the Principal of the College or Superior Officer under whom he has undergone training or is working must be enclosed to the application;\n\nAge limits must not be above-\n\n(i) 35 years in the case of Government servantsholding appointment substantively or who have been in continuous Government service for a period of not less than 3 years and political sufferers;\n\n(ii) 33 years in the case of candidates belonging to Scheduled Castes and Scheduled Tribes;\n\n(iii) 31 years in the case of Backward Classes;\n\n(iv) 28 years in the case of others; on the last date fixed for the receipt of applications.\n\nPeriod of Probation.-Two years.\"\n\n\nOn October 31, 1961, the Governor of Mysore appointed 88 candidates as Probationary Assistant Engineers in the Mysore Public Works Department and it is these appointments that were challenged before the Mysore High Court in the 16 writ petitions mentioned in the beginning of this judgment.\n\nMr. Seta!va, d contends that under the proviso to art. 309 the Governor is entitled to make retrospective rules and the position of the Government while acting under the proviso to art. 309 is in no way different from the powers conferred on the legislature under art. 309 read with arts. 245 and 246 and item 41 of List II.\n\nMr. Setalvad further contends that the Government is not acting ru; a delegate of any legislature while exercising powers under the proviso to art. 309; it is exercising a power conferred by the Constitution directly on the executive and the Constitution has not prescribed any guiding principles to be followed by the State Government while it is exercising powers under the proviso to art. 309, because the Constitution treats it having the same powers as the legislature. He further says that the State Government can amend and repeal any existing law relating to State Services continued in force by art. 313 of the Constitution. He urges that if the Constitution makers had intended to place any fetters on the powers of the State Government under the proviso, these would have been mentioned specifically, and he says that we cannot treat it on the same basis as delegated legislation and, therefore, even if it be the law, which he does not concede, that the executive when acting as a oelegate under an act of Parliament or an act of a State Legislature, cannot make rwes retrospectively, this principle does not apply to the exercise of powers under the provis0> to art. 309 of the Constitution.\n\n-694\n\nSUPR.BME OOUl.T R.BPOl.TS\n\n(1966] 3 S.C.R..\n\nMr. Nambiar contends that under an act of Parliament or an act of a State Legislature the executive cannot frame rules retrospectively unless the act specifically empowers it to do so. According to him the position is the same under the proviso to art.\n\n309. In our opinion, it is not necessary to decide this point in these cases because we are of the view that the appeal can be disposed of on another ground. Assuming for the sake of argument that Mr. Nambiar is right that the Mysore State Government could not make rules retrospectively and that the rules are thus void, so far as they operate retrospectively, we must ignore these rules and sec whether the appointments made on October 31,\n\n1961, can be upheld.\n\nWe have come to the conclusion that these appointments can be considered to have been validly made in exercise of the executive power of the State under art. 162 of the Constitution. The three notifications issued by the Public Service Commission on October I, 1958, May 4, 1959 and April I, 1960,\n\nmust be treated to have been issued with the consent of the State Government.\n\nThese notifications are not rules made under art. 309 of the Constitution, as contended hy Mr.\n\nNambiar; they arc mere executive notifications issued by the Public Service Commission at lea't with the implied consent of the State Government. The passage reproduced above from the letter of the Government dated March, 4, 1959, clearly shows that the Government was well aware of what the Public Service Commission was doing. It was aware of the action being taken by the Public Service Commission, and indeed, it can safely be assumed that the Government was aware of each step being taken by the Public Service Commission including the publication of these notifications. The position is that if we accept Mr. Nambiar's arguments that these rules purported to be made by the Mysore State Government had no retrospective validity, there were no statutory rules to govern the appointment of the 88 persons a~ Assistant Engineers. We have already held that the Mysore State Civil Service (General Recruitment) Rules, 1957, did not debar the Government from making appointments without making statutory rules. Therefore, we hold that these appointments were validly made.\n\nMr. Nambiar sought to impeach the appointments on another G ground.\n\nHe said that the appointments violated Mysore Public Works Engineering Department Services (Recruitment) Rules,\n\n1960 dated December 3, 1960, because the appointments were mad~ on October 31, 1961, and according to him, these appointments had also to he made under the statutory rules made on December 3 1960. We are unable to sustain this contention be- H cause it took about two years for the Public Service Commission to publish notifications, interview candidates and rcmrnend names for appointment. The whole procedure having been\n\n~ . •\n\n. -\n\n. •\n\nA followed, it could not have been the intention of the Government while framing the rules to cover appointments made in pursu- --., ance of the recommendations of the Public Service Commission made in November 1960 after interviewing candidates in October _,). 1960.\n\n• ....\n\nIt was urged in the alternative that the advertisement made by the Public Service Commission notification dated April l,\n\n1960 was different from the rules of March 4, 1959, in the matter of fixing the age limits, i.e., while the rules provided 28 years as the maximum age in the case of others, the notification provided the maxnnum age as 31 years.\n\nIn our view the respondents are not entitled to make a grievance of this difference because there is nothing on the record to show that the ages of those appointed were against the rules of March 4, 1959. The learned counsel has not been able to satisfy us that they have suffered in any manner because of this difference in age.\n\nThere remains one question and that is the question of ma/a fides which was alleged in the petition. There were 16 petitions D but we will take the allegations from the first petition. Paras 16 and 17 in Writ Petition No. 1248of1961, before the High Court, in which the allegations of ma/a fides have been made read as under:\n\n\"Further selection made by the Public Service Commission is arbitrary and made out of collateral considerations. Amongst the selected candidates, the following viz., (I) Sri D. C. Channe Gowda, who is the son-inlaw of the 2nd member of the Public Service Commission, an ordinary B.E. Graduate with only 49 % of marks;\n\n(2) Sri Kencharase Gowda, who is the sister's son-inlaw, an ordinary B. E. have been selected to the exclusion of myself and several others, who had superior qualificat_ion, both academically and by virtue of seniority in service.\n\n17. Similarly, relations of prominent members of the local Legislature and of Parliament, relations of high placed officials including a Minister and an ex-Minister have been selected.\"\n\nThe Chairman of the Mysore Public Service Commission filed a counter-affidavit and replied to the above paras 16 and 17 as follows: '\n\n\"3. Paragraph 16 of the Petitioner's affidavit-The statement that the selection made was arbitrary and made out of collateral considerations is incorrect. It is true that Shri D. C. Channe Gowda was among the candidates selected. The then Second Member of the\n\nSUPREME\n\nCOURT llBPOl.TS\n\n(1966) 3 S.c.A.\n\nPublic Service Commission abstained from participating in the interview of that candidate.\n\nI was not aware at the time of the selection, of the relationship of Kencharase Gowda, Shri T. Krishna, Shri Hanume Gowda and Shri M. N. Narase Gowda to the then Second Member of the Public Service Commission. The then Second Member of the Public Service Commission, Shri M. K.\n\nAppajappa is since dead. The dominant factor in making the selection was the performance of the candidate at the interviewand the marks secured by the candidate in the Degree Examination was only one of the factors that was taken into consideration.\n\n4. Paragraph 17 of the Petitioner's Affidavit-I was not aware of the relationship, if any, of the candidates to prominent members of the local Legislature and of Parliament or of high placed officials including a Minister and an ex-Minister. I submit that it is also incorrect to suggest that the selections were influenced by any such relationship\".\n\nThe High Court found it unnecessary to investigate this matter because it felt that the selections impugned were invalid on other grounds, but it observed as follows:\n\n\"There is no denying the fact that the facts stated in the pleadings, especially in the light of the manner in which they are traversed in the counter affidavit of the Chairman of the Public Service Commission, do raise a strong suspicion.\"\n\nThe High Court might well have abstained from expressing its strong suspicion if it was not going to give its final views on the question of malafides. We are unable to appreciate that the manner in which the counter-affidavit of the Chairman of the Public Service Commission is expressed calls for any comment.\n\nIn para 15 of the affidavit in support of Writ Petition No. 1269 of 1961 more details arc given of the selected candidates and the counter-affidavit filed hy the Chairman of the Public Service Commission is common to all the petitions. But even so, the details mentioned did not call for any detailed reply.\n\nFor example, it was alleged in para 15 that one Shri D.C. Channe Gowda who is the son-in-law of the Second Member of the Public Service Commission, Shri Appajappa, was an ordinary B. E. Graduate with only 49 8 % marks. But even if he had only 49 8 % of the marks, this is not conclusive to show that he should not have been selected because the whole object of interviewing candidates is to judge their eligibility or suitability apart from the standard displayed by them in the written examination. We are unable to hold that on these facts any mala fides or collateral object has been proved.\n\nB •\n\nH •\n\nNAGAltAJAN V. MYSORE (Sikri, ].) 697\n\nA In the result the appeals both of the State and the other appellants are allowed and judgment of the High Court set aside.\n\nWe may mention that some of the appellants have not prosecuted their appeals but there is no reason why they should not have the benefit of this judgment, and exercising our powers under art. 142 of the Constitution, we direct that in order to do complete B justice they should also have the benefit of the judgment given by us. There will be no order as to costs. ·\n\nAppeals allowed.", "total_entities": 108, "entities": [{"text": "B. N. NAGARAJAN AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "B. N. 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C. Seta", "label": "PETITIONER", "start_char": 6216, "end_char": 6226, "source": "ner", "metadata": {"in_sentence": "M. C. Seta/vad, S. C. Javali, O. C. Mathur, J. B. Dadachanji, and Ravinder Narain, for appellants Nos."}}, {"text": "S. C. Javali", "label": "LAWYER", "start_char": 6232, "end_char": 6244, "source": "ner", "metadata": {"in_sentence": "M. C. Seta/vad, S. C. Javali, O. C. Mathur, J. B. Dadachanji, and Ravinder Narain, for appellants Nos."}}, {"text": "O. C. Mathur", "label": "LAWYER", "start_char": 6246, "end_char": 6258, "source": "ner", "metadata": {"in_sentence": "M. C. Seta/vad, S. C. Javali, O. C. Mathur, J. B. Dadachanji, and Ravinder Narain, for appellants Nos."}}, {"text": "J. B. Dadachanji", "label": "LAWYER", "start_char": 6260, "end_char": 6276, "source": "ner", "metadata": {"in_sentence": "M. C. Seta/vad, S. C. Javali, O. C. Mathur, J. B. Dadachanji, and Ravinder Narain, for appellants Nos.", "canonical_name": "J. B. Dadachanji"}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 6282, "end_char": 6297, "source": "ner", "metadata": {"in_sentence": "M. C. Seta/vad, S. C. Javali, O. C. Mathur, J. B. Dadachanji, and Ravinder Narain, for appellants Nos."}}, {"text": "A. K. Sen", "label": "PETITIONER", "start_char": 6374, "end_char": 6383, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, B. R. L. Iyengar and B. R. G. K. Achar for respondents Nos."}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 6385, "end_char": 6401, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, B. R. L. Iyengar and B. R. G. K. Achar for respondents Nos."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 6406, "end_char": 6423, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, B. R. L. Iyengar and B. R. G. K. Achar for respondents Nos."}}, {"text": "M. K. Nambyar", "label": "LAWYER", "start_char": 6535, "end_char": 6548, "source": "ner", "metadata": {"in_sentence": "M. K. Nambyar, S.\n\nN. Andie)', Rameshwar Nath and P. L.\n\nVohra, for respondents (in C. As."}}, {"text": "S.\n\nN. Andie", "label": "LAWYER", "start_char": 6550, "end_char": 6562, "source": "ner", "metadata": {"in_sentence": "M. K. Nambyar, S.\n\nN. Andie)', Rameshwar Nath and P. L.\n\nVohra, for respondents (in C. As."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 6566, "end_char": 6580, "source": "ner", "metadata": {"in_sentence": "M. K. Nambyar, S.\n\nN. Andie)', Rameshwar Nath and P. L.\n\nVohra, for respondents (in C. As."}}, {"text": "P. L.\n\nVohra", "label": "LAWYER", "start_char": 6585, "end_char": 6597, "source": "ner", "metadata": {"in_sentence": "M. K. Nambyar, S.\n\nN. Andie)', Rameshwar Nath and P. L.\n\nVohra, for respondents (in C. As."}}, {"text": "J. B. Dadadwnji", "label": "LAWYER", "start_char": 6673, "end_char": 6688, "source": "ner", "metadata": {"in_sentence": "J. B. Dadadwnji, 0.", "canonical_name": "J. B. Dadachanji"}}, {"text": "C. Marhur", "label": "LAWYER", "start_char": 6693, "end_char": 6702, "source": "ner", "metadata": {"in_sentence": "C. Marhur and Ravinder Narain, for the Intervener."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 6788, "end_char": 6793, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sikri, J. These appeals, by special leave, are directed against the judgment of the High Court of Mysore at Bangalore in 16 Writ Petitions filed before it, quashing the notification of the Government bearing No."}}, {"text": "High Court of Mysore at Bangalore", "label": "COURT", "start_char": 6872, "end_char": 6905, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Sikri, J. These appeals, by special leave, are directed against the judgment of the High Court of Mysore at Bangalore in 16 Writ Petitions filed before it, quashing the notification of the Government bearing No."}}, {"text": "December 12, 1957", "label": "DATE", "start_char": 7397, "end_char": 7414, "source": "ner", "metadata": {"in_sentence": "On December 12, 1957, the Governor of Mysore made rules called the Mysore Public Service E Commission (Functions) Rules, 1957, hereinafter called the Functions Rules, relating to the functions of the Mysore Public Service Commission."}}, {"text": "Mysore", "label": "GPE", "start_char": 7432, "end_char": 7438, "source": "ner", "metadata": {"in_sentence": "On December 12, 1957, the Governor of Mysore made rules called the Mysore Public Service E Commission (Functions) Rules, 1957, hereinafter called the Functions Rules, relating to the functions of the Mysore Public Service Commission."}}, {"text": "art. 309", "label": "PROVISION", "start_char": 9386, "end_char": 9394, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 309", "label": "PROVISION", "start_char": 9632, "end_char": 9640, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 309", "label": "PROVISION", "start_char": 9716, "end_char": 9724, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 320", "label": "PROVISION", "start_char": 9930, "end_char": 9938, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 320", "label": "PROVISION", "start_char": 10314, "end_char": 10322, "source": "regex", "metadata": {"statute": null}}, {"text": "February 10, 1958", "label": "DATE", "start_char": 10614, "end_char": 10631, "source": "ner", "metadata": {"in_sentence": "To resume the narrative, on February 10, 1958, the Governor of Mysore, in exercise of the pow en; conferred by the proviso to art."}}, {"text": "art. 309", "label": "PROVISION", "start_char": 10712, "end_char": 10720, "source": "regex", "metadata": {"statute": null}}, {"text": "Nambiar", "label": "OTHER_PERSON", "start_char": 11688, "end_char": 11695, "source": "ner", "metadata": {"in_sentence": "Mr. Nambiar contends that the words \"shall be as set forth in the rules of recruitment of such service specially made in that behalf\" clearly show that tiil the rules arc made in that behalf no recruitment can be made to any service."}}, {"text": "art. 309", "label": "PROVISION", "start_char": 12003, "end_char": 12011, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 309", "label": "PROVISION", "start_char": 12855, "end_char": 12863, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 162", "label": "PROVISION", "start_char": 12939, "end_char": 12947, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 162", "label": "PROVISION", "start_char": 13176, "end_char": 13184, "source": "regex", "metadata": {"statute": null}}, {"text": "General Recruitment Rules, 1957", "label": "STATUTE", "start_char": 13608, "end_char": 13639, "source": "regex", "metadata": {}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 13852, "end_char": 13859, "source": "ner", "metadata": {"in_sentence": "The following observations of Wanchoo, J., who delivered the judg-\n\n(!) ("}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 16809, "end_char": 16823, "source": "regex", "metadata": {"statute": null}}, {"text": "arts. 15 and 16", "label": "PROVISION", "start_char": 17082, "end_char": 17097, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 309", "label": "PROVISION", "start_char": 17285, "end_char": 17293, "source": "regex", "metadata": {"statute": null}}, {"text": "arts. 15 and 16", "label": "PROVISION", "start_char": 17295, "end_char": 17310, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 15", "label": "PROVISION", "start_char": 17685, "end_char": 17692, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 16", "label": "PROVISION", "start_char": 17696, "end_char": 17703, "source": "regex", "metadata": {"statute": null}}, {"text": "General Recruitment Rules, 1957", "label": "STATUTE", "start_char": 17884, "end_char": 17915, "source": "regex", "metadata": {}}, {"text": "States Reorganisation Act", "label": "STATUTE", "start_char": 18266, "end_char": 18291, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "October I, 1958", "label": "DATE", "start_char": 18673, "end_char": 18688, "source": "ner", "metadata": {"in_sentence": "This brings us to the next event, and that is Notification No E. 2666-58-9PSC dated October I, 1958, issued by the Mysore Public Service Commission inviting applications in the prescribed G form from qualified l ndian citizens for recruitment of 40 Probationary Assistant Engineers in the Executive Cadre of the Mysore Public Works Department."}}, {"text": "Mysore Public Works Department", "label": "ORG", "start_char": 18901, "end_char": 18931, "source": "ner", "metadata": {"in_sentence": "This brings us to the next event, and that is Notification No E. 2666-58-9PSC dated October I, 1958, issued by the Mysore Public Service Commission inviting applications in the prescribed G form from qualified l ndian citizens for recruitment of 40 Probationary Assistant Engineers in the Executive Cadre of the Mysore Public Works Department."}}, {"text": "March 4, 1959", "label": "DATE", "start_char": 19110, "end_char": 19123, "source": "ner", "metadata": {"in_sentence": "On March 4, 1959, the Governor of Mysore in exercise of the powers H ronferred by the proviso to art."}}, {"text": "art. 309", "label": "PROVISION", "start_char": 19204, "end_char": 19212, "source": "regex", "metadata": {"statute": null}}, {"text": "September 1, 1958", "label": "DATE", "start_char": 19783, "end_char": 19800, "source": "ner", "metadata": {"in_sentence": "It was further provided that \"anything done or any action taken by the Public Service Commission or other authority in respect of recruitment of Probationary Assistant B Engineers between September 1, 1958 and the date of this Notification shall be deemed to have been done or taken under the\n\nproisions of this Notification.\""}}, {"text": "Public Service Commission", "label": "ORG", "start_char": 20595, "end_char": 20620, "source": "ner", "metadata": {"in_sentence": "This clearly shows that the Government was aware of the action taken by the Public Service Commission in issuing the Notification dated October I, 1958."}}, {"text": "May 4, 1959", "label": "DATE", "start_char": 20758, "end_char": 20769, "source": "ner", "metadata": {"in_sentence": "After receipt of this letter, the Public Service Commission issued a Notification on May 4, 1959, inviting applications \"from qualified Indian citizens of all classes for recruitment of 80 Probationary Assistant Engineers in the Executive Cadre of the Mysore Public Works Department, including the 40 posts already advertised in this office Notification No."}}, {"text": "November 2, 1960", "label": "DATE", "start_char": 24441, "end_char": 24457, "source": "ner", "metadata": {"in_sentence": "In October 1960 the Mysore Public Service Commission interviewed the candidates and on November 2, 1960, the Commission sent to the Government a list of 80 candidates selected by them."}}, {"text": "Mysore Public Works Engineering Department Service", "label": "ORG", "start_char": 24655, "end_char": 24705, "source": "ner", "metadata": {"in_sentence": "On December 3, 1960, the Government of Mysore sanctioned the establishment of the State Service Cadre in respect of Mysore Public Works Engineering Department Service."}}, {"text": "art. 309", "label": "PROVISION", "start_char": 24779, "end_char": 24787, "source": "regex", "metadata": {"statute": null}}, {"text": "G. Govindaraju", "label": "OTHER_PERSON", "start_char": 25810, "end_char": 25824, "source": "ner", "metadata": {"in_sentence": "One G. Govindaraju, Junior Engineer, filed a petition under art."}}, {"text": "art. 226", "label": "PROVISION", "start_char": 25866, "end_char": 25874, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 309", "label": "PROVISION", "start_char": 26090, "end_char": 26098, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 162", "label": "PROVISION", "start_char": 26694, "end_char": 26702, "source": "regex", "metadata": {"statute": null}}, {"text": "December IO, 1957", "label": "DATE", "start_char": 27444, "end_char": 27461, "source": "ner", "metadata": {"in_sentence": "follows:\n\n\"It would be for the State Government, before it takes a decision on that question, to consider the effect of Rule 4{2) of the Public Service Commission (Function) Rules, made on December IO, 1957, Rules 3 and 4 of the Mysore Stale Civil Services General Recruitment Rules, which came into force on February 10, 1958, and of the Mysore Public Works Engineering Department Service (Recruitment) Rules, which came into force on December 3, 1960, and to further consider whether in the light of those provisions, appointments could be made to the posts of Assistant Engineers, except in accordance with the provisions of the Rules which came into force on December 3, 1960."}}, {"text": "September 29, 1961", "label": "DATE", "start_char": 28124, "end_char": 28142, "source": "ner", "metadata": {"in_sentence": "This order was passed on September 29, 1961."}}, {"text": "art. 309", "label": "PROVISION", "start_char": 28220, "end_char": 28228, "source": "regex", "metadata": {"statute": null}}, {"text": "Governor of Mysore", "label": "RESPONDENT", "start_char": 30186, "end_char": 30204, "source": "ner", "metadata": {"in_sentence": "On October 31, 1961, the Governor of Mysore appointed 88 candidates as Probationary Assistant Engineers in the Mysore Public Works Department and it is these appointments that were challenged before the Mysore High Court in the 16 writ petitions mentioned in the beginning of this judgment."}}, {"text": "Seta!va", "label": "OTHER_PERSON", "start_char": 30457, "end_char": 30464, "source": "ner", "metadata": {"in_sentence": "Mr. Seta!va, d contends that under the proviso to art.", "canonical_name": "Setalvad"}}, {"text": "art. 309", "label": "PROVISION", "start_char": 30503, "end_char": 30511, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 309", "label": "PROVISION", "start_char": 30634, "end_char": 30642, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 309", "label": "PROVISION", "start_char": 30717, "end_char": 30725, "source": "regex", "metadata": {"statute": null}}, {"text": "arts. 245 and 246", "label": "PROVISION", "start_char": 30736, "end_char": 30753, "source": "regex", "metadata": {"statute": null}}, {"text": "Setalvad", "label": "OTHER_PERSON", "start_char": 30783, "end_char": 30791, "source": "ner", "metadata": {"in_sentence": "Mr. Setalvad further contends that the Government is not acting ru; a delegate of any legislature while exercising powers under the proviso to art.", "canonical_name": "Setalvad"}}, {"text": "art. 309", "label": "PROVISION", "start_char": 30922, "end_char": 30930, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 309", "label": "PROVISION", "start_char": 31166, "end_char": 31174, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 313", "label": "PROVISION", "start_char": 31383, "end_char": 31391, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 309", "label": "PROVISION", "start_char": 31954, "end_char": 31962, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 32078, "end_char": 32088, "source": "ner", "metadata": {"in_sentence": "TS\n\n(1966] 3 S.C.R..\n\nMr. Nambiar contends that under an act of Parliament or an act of a State Legislature the executive cannot frame rules retrospectively unless the act specifically empowers it to do so."}}, {"text": "art.\n\n309", "label": "PROVISION", "start_char": 32284, "end_char": 32293, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore State Government", "label": "ORG", "start_char": 32517, "end_char": 32540, "source": "ner", "metadata": {"in_sentence": "Assuming for the sake of argument that Mr. Nambiar is right that the Mysore State Government could not make rules retrospectively and that the rules are thus void, so far as they operate retrospectively, we must ignore these rules and sec whether the appointments made on October 31,\n\n1961, can be upheld."}}, {"text": "October 31,\n\n1961", "label": "DATE", "start_char": 32720, "end_char": 32737, "source": "ner", "metadata": {"in_sentence": "Assuming for the sake of argument that Mr. Nambiar is right that the Mysore State Government could not make rules retrospectively and that the rules are thus void, so far as they operate retrospectively, we must ignore these rules and sec whether the appointments made on October 31,\n\n1961, can be upheld."}}, {"text": "art. 162", "label": "PROVISION", "start_char": 32908, "end_char": 32916, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 309", "label": "PROVISION", "start_char": 33178, "end_char": 33186, "source": "regex", "metadata": {"statute": null}}, {"text": "March, 4, 1959", "label": "DATE", "start_char": 33444, "end_char": 33458, "source": "ner", "metadata": {"in_sentence": "The passage reproduced above from the letter of the Government dated March, 4, 1959, clearly shows that the Government was well aware of what the Public Service Commission was doing."}}, {"text": "December 3 1960", "label": "DATE", "start_char": 34665, "end_char": 34680, "source": "ner", "metadata": {"in_sentence": "He said that the appointments violated Mysore Public Works Engineering Department Services (Recruitment) Rules,\n\n1960 dated December 3, 1960, because the appointments were mad~ on October 31, 1961, and according to him, these appointments had also to he made under the statutory rules made on December 3 1960."}}, {"text": "D. C. Channe Gowda", "label": "OTHER_PERSON", "start_char": 36387, "end_char": 36405, "source": "ner", "metadata": {"in_sentence": "I) Sri D. C. Channe Gowda, who is the son-inlaw of the 2nd member of the Public Service Commission, an ordinary B.E. Graduate with only 49 % of marks;\n\n(2) Sri Kencharase Gowda, who is the sister's son-inlaw, an ordinary B. E. have been selected to the exclusion of myself and several others, who had superior qualificat_ion, both academically and by virtue of seniority in service.", "canonical_name": "D. C. Channe Gowda"}}, {"text": "Kencharase Gowda", "label": "OTHER_PERSON", "start_char": 36540, "end_char": 36556, "source": "ner", "metadata": {"in_sentence": "I) Sri D. C. Channe Gowda, who is the son-inlaw of the 2nd member of the Public Service Commission, an ordinary B.E. Graduate with only 49 % of marks;\n\n(2) Sri Kencharase Gowda, who is the sister's son-inlaw, an ordinary B. E. have been selected to the exclusion of myself and several others, who had superior qualificat_ion, both academically and by virtue of seniority in service.", "canonical_name": "Kencharase Gowda"}}, {"text": "Kencharase", "label": "OTHER_PERSON", "start_char": 37551, "end_char": 37561, "source": "ner", "metadata": {"in_sentence": "I was not aware at the time of the selection, of the relationship of Kencharase Gowda, Shri T. Krishna, Shri Hanume Gowda and Shri M. N. Narase Gowda to the then Second Member of the Public Service Commission.", "canonical_name": "Kencharase Gowda"}}, {"text": "T. Krishna", "label": "OTHER_PERSON", "start_char": 37574, "end_char": 37584, "source": "ner", "metadata": {"in_sentence": "I was not aware at the time of the selection, of the relationship of Kencharase Gowda, Shri T. Krishna, Shri Hanume Gowda and Shri M. N. Narase Gowda to the then Second Member of the Public Service Commission."}}, {"text": "Hanume Gowda", "label": "OTHER_PERSON", "start_char": 37591, "end_char": 37603, "source": "ner", "metadata": {"in_sentence": "I was not aware at the time of the selection, of the relationship of Kencharase Gowda, Shri T. Krishna, Shri Hanume Gowda and Shri M. N. Narase Gowda to the then Second Member of the Public Service Commission."}}, {"text": "M. N. Narase Gowda", "label": "OTHER_PERSON", "start_char": 37613, "end_char": 37631, "source": "ner", "metadata": {"in_sentence": "I was not aware at the time of the selection, of the relationship of Kencharase Gowda, Shri T. Krishna, Shri Hanume Gowda and Shri M. N. Narase Gowda to the then Second Member of the Public Service Commission."}}, {"text": "M. K.\n\nAppajappa", "label": "OTHER_PERSON", "start_char": 37754, "end_char": 37770, "source": "ner", "metadata": {"in_sentence": "The then Second Member of the Public Service Commission, Shri M. K.\n\nAppajappa is since dead."}}, {"text": "D.C. Channe Gowda", "label": "OTHER_PERSON", "start_char": 39449, "end_char": 39466, "source": "ner", "metadata": {"in_sentence": "For example, it was alleged in para 15 that one Shri D.C. Channe Gowda who is the son-in-law of the Second Member of the Public Service Commission, Shri Appajappa, was an ordinary B. E. Graduate with only 49 8 % marks.", "canonical_name": "D. C. Channe Gowda"}}, {"text": "Appajappa", "label": "OTHER_PERSON", "start_char": 39549, "end_char": 39558, "source": "ner", "metadata": {"in_sentence": "For example, it was alleged in para 15 that one Shri D.C. Channe Gowda who is the son-in-law of the Second Member of the Public Service Commission, Shri Appajappa, was an ordinary B. E. Graduate with only 49 8 % marks."}}, {"text": "art. 142", "label": "PROVISION", "start_char": 40353, "end_char": 40361, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_698_705_EN", "year": 1966, "text": "BADKU JOTI SAVANT\n\nI'.\n\nSTATE OF MYSORE\n\nMarch I, 1966\n\n[P. B. GAJE1'DRAGADKAR, C. J .• K. N. WANCHOO,\n\nM. l-IIDAYATULLAll, J.C. SHAH AND\n\nS. M. SJKRI, JJ.)\n\nSta Customs Act (8 of 1878), s. 167(81)-0ffence under-Offender whether must be directly concerned in the ilnport of smuggled gofd.\n\nCentral Excise and Salt Act (I of 1944), s. 21-Deputy Superintendent of Customs and Excise given certain powers of an 'officer-In-char~ of a police station'-Such officer 1vhe1her a police officer lvithiti the nieaning of Indian Evidence Act (I of 1872), s. 25.\n\nThe appellant who lived in a village near Goa was found in possession of contraband gold.\n\nHe was prosecu1ed under s. 167 ( 81 ) of the Sea Customs Act read with s. 9 of the Land Customs Act (9 of 1924). The trial Magistrate convic1ed him but lhe Sessions Judge relying on the decision of the Calcutta High Court in Sitaram Agarwala's cue acquitted\n\nhim. The High Court of Mysore, in appeal against the acquittal, considered the evidence and relying, inter a/ia, on the statement made by the apP.ellant to the Deputy Superintendent of Customs and Excise held him guilty.\n\nWith certificate the appellant came to this Court.\n\nThe questions that fell for consideration were : ( i) whether the view taken by the High Court differing from the view taken by the Calcutta High Court in Sitaram Agl1.rwa/a's case with respect to the interpretation of s. 167(81) was correct, and (ii) whether the statement made by the appellant to the Deputy Superintendent of Customs & E.cise was admissible in view of s. 25 of the Indian Evidence Act.\n\nHELD : (i) The High Court was right in not following the view of the Calcutta High Court in Sltaram Agarwala's case, the correct view a.. to the interpretation of s. 167(81) of the Sea Customs being that the section takes in even those persons who may not be concerned with the actual import of the prohibited goods.\n\n[700 G.H]\n\nSachidananda Banerjee, Assistant Collector of Cu.rtomr v.\n\nSitararn Agarwal, (1966] 2 S.C.R, I, followed.\n\nSltaram Agarwal v. State. (1962] Cr. L.J. 43, disapproved.\n\n(ii) The Central Excise and Salt Act, 1944 does not confer all tho powers of a police officer on Central Excise Officers. The powers conferred on them bys. 21(2) of the Act are only for the purpose of inquiry under s. 21 (1); they would not entitle the said officers to file a chargesbeet under s. 173 of the Code of Criminal Procedure. Therefore even though a Central Excise Officer may have when making enquiries for purp06e8 of the Act, powers which an officer-in-<:hargo of a police station\n\nbas when investigating a cognizable offence. he does not thereby become a police officer within the meaning of s. 25 of the Indian Evidence Act, and the statement of an accused person recorded by him is not hit by that sec:lion.\n\n(704 B-C, F-GJ Raja Ram Jaiswal v. State of Bihar, (1964] 2 S.C.R. 752 and NQ/loo Sheikh Ahmed v. Emperor, (1921) I.L.R. 51 Born. 78, distinguished.\n\nState of Punjab v. Barkat Ram., (1962) 3 S.C.R. 338, relied on.\n\n' D\n\n... '\n\n•••\n\n• T(\n\n• A\n\nRadha Klshun Marwari v. King-Emperor, ( 1933) I.L.R. 12 Patna 46, referred to.\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 26 of 1964.\n\nAppeal from the judgment and order dated November 20, 1963 of the Mysore High Court in Criminal Appeal No. 49 of 1963.\n\nB. R. L. Iyengar and A. G. Ratnaparkhi, for the appellant.\n\nA. K. Sen, D. R. Prem, R.H. Dhebar and B. R. G. K. Achar, for the respondent.\n\nNiren De, Additional Solicitor-General and B. R. G. K. Achar, for the intervener.\n\nThe Judgment of the Court was delivered by Wanchoo, J. This is an appeal on a certificate granted by the Mysore High Court. The appellant was prosecuted under s. 167 (81) of the Sea Customs Act (No. 8 of 1878) read with s. 9 of the Land Customs Act (No. 19 of 1924). The appellant lives in a village which is close to Goa. The incident out of which the present appeal has arisen took place on November 27, 1960 when Goa was not a part oflndia but was Portuguese territory. The Deputy Superintendent of Customs, Goa Frontier Division, Belgaum received information that contraband goods would be found in the house of the appellant. Consequently he raided the house in the company of three panchas. The appellant was not present in the house when the raid took place, but his mother and sisterin-law were there. After necessary formalities the house was searched and a big steel trunk, a cane-box and another steel trunk were taken down from the loft in the kitchen. On opening, a belt, with four pouches stitched to it, was found in the big steel trunk. Inside the pouches, four gold bars with foreign marks and labels of Goa Customs authorities were found. Besides these, a large sum of money and three small cut pieces of gold were also found in the box. In the other two boxes also various sums of money in currency notes were .fonnd. The weight of the gold bars was. 343 tolas.\n\nOn November 30, 1960, the appellant was arrested and interrogated by the Deputy Superintendent of Customs and Excise.\n\nThe answers given by him were reduced in writing and his signature was taken on the writing after it had been read over to him.\n\nDuring this interrogation, the appellant admitted that the four gold bars had been given to him on November 27, 1960 in the morning by one Vittal Morajkar of Goa so that he might deliver them back to Morajkar on the motor-stand at Belgaum or near there, and he had kept them in his house. As the gold was foreign gold\n\n--...\n\n~ ,.\n\n.. ,./\n\nthat the appellant would be guilty within the meaning of s. 167 (81) of the Sea Customs Act.\n\nThis leaves only the second question, and it has been ur1o1ed on behalf of the appellant that a Central Excise Offier under the Central Excises and Salt Act, No. l of 1944 (heremafter referred to as the Act) is a police officer within the meaning of those words in s. 25 of the Evidence Act. Therefore even though the Deputy Superintendent of Customs and Central Excises may have acted under the powers conferred on him by the Sea Custm, ns Act, he was still a police officer, and the statement made to him by the appellant on November 30, 1960 which is in the nat'!lre of a confession would be inadmissible under s. 25 of the Evidence Act. It may be added that the High Court had in this connection relied on the judgment of this Court in the State of Punjab v.\n\nBarkat Ram() where it had been held by majority that a Customs Officer under the Sea Customs Act was not a police officer within the meaning of s. 25 of the Evidence Act. The appellant however relies on a later decision of this Court in Raja Ram Jaiswa/ v. State of Bihar(Z) where by majority it was held that an excise officer under the Bihar and Orissa Excise Act (No. 2of1915) wa~ a police officer within the meaning qf s. 25 of the Evidence Act.\n\nThere has been difference of opinion among the High C01arts. in India as to the meaning of the words \"police officer\" used in s. 25 of the Evidence Act. One view has been that those words must be construed in a broad way and all officers whether they are police officers properly so-called or not would be police officers within the meaning of those words if they have all the powers of a police officer with respect to investigation of offences with which they are concerned. The leading case in support of this view is Nano<> Sheikh Ahmed v. Emperor('). The other view which may be called the narrow view is that the words \"police officer\" in s. 25 of the Evidence Act mean a police officer properly so-called and do not include officers of other departments of government who may. be charged with the duty to investigate under special Acts special crimes thereunder like excise offences or customs offences and so on. The leading case in support of this view is Radh~ Kishun Marwari v. King-Emperor(•).\n\nThe other High Courts have followed one view or the other, the majority being in favour of the view taken by the Bombay High Court.\n\nIt is submitted on behalf of the appellant that the view taken by the. Bombay High Court in Nanoo Sheikh Ahmed(') is the correct view and that the view of the Patna High Court in Radha Kishun Marwari(4) is not correct. On the other hand it has been H urged on behalf of the State that the view taken by the Patna High\n\n(I) [1962] 3 S.C.R. 338,\n\n(2) [1964) 2 S.C.R, 752.\n\n(3) [1927] I.L.R. SI Born. 78.\n\n(4) [1933] I.L.R, IZPatoa 46.\n\nMllSup.C.I./66-13\n\nSUPREME\n\nCOURT REPOlt'l'S\n\n\nCourt in Radha Kislzu11 Manmri(') is the correct one. Prima facie there is in our opinion much to be said for the narrow view taken by the Patna High Court.\n\nBut as we have come to the conclusion that even 0n th~ broad view, a Central Excise Officer\n\nunder the Act is not :. police officer, it is unnecessary to express a final opinion on the two views on the meaning of the words \"police officer\" in s. 25 of the Evidence Act.\n\nWe shall proceed on the assumption that the broad view may be accepted and that requires an examination of the various provisions of the Act to which we turn now.\n\nThe main purpose of the Act is to levy and collect excise duties and Central Excise Officers have been appointed thereunder for this main purpose. In order that they may carry out their duties in this behalf, powers have been conferred on them to see that duty is not evaded and persons guilty of evasion of duty are brought to book. Section 9 of the Act provides for punishment which may extend to imprisonment upto 6 months or to fipd upto Rs. 2,000 or both where a person (a) contravenes any of the provisions of a notification issued under s. 6 or of s. 8 or of a rule made under cl. (iii) of sub-section (2) of s. 37; (b) evades the payment of any duty payable under the Act; (c) fails to supply any information which he is required by rules made under the Act to supply or supplies false information; and (d) attempts to commit or abets the commission of any of the offences mentioned in els. (a) and (b) above. Under s. 13 of the Act, any Central Excise Officer duly empowered by the Central Government in this behalf may arrest any person whom he has reason to believe to be liable to punishment under the Act. Section 18 lays down that all searches made under the Act or any rules made thereunder and all arrests made under the Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 relating respectively to searches and arrests made under that Code. Section 19 lays down that every person arrested under the Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate or if there is no such Central Excise Officer within a reaiOnable 'distance, to the officcr-in-<.:harge of the nearest police station. These sections clearly show that the powers of arrest and search conferred on Central Excise Officers are really in support -0f their main function of levy and collection of duty on excisable goods.\n\nStrong reliance has however been placed on behalf of the appellant on s. 21 of the Act, the material part of which runs thus:\n\n\"21. ( 1) When any person is forwarded under section 19 to a Central Excise Officer empowered to send persons so\n\n(l) (1933] 1.L.lt. 12 htna 46.\n\nD i\n\n• - F \"\"'\n\narrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him. .\n\n(2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case; Provided that. ................................. \" It is urged that under sub-section (2) of s. 21 a Central Excise Officer under the Act has all the powers of an officer-in-charge of a police station under chapter XIV of the Code of Criminal Procedure and therefore he must be deemed to be a police officer within the meaning of those words in s. 25 of the Evidence Act.\n\nIt is true that sub-section (2) confers on the Central Excise Officer under the Act the same powers as an officer-in-charge of a police station has when investigating a cognizable case; but this power is conferred for the purpose of sub-s. (I) which gives power to a Central Excise Officer to whom any arrested person is forwarded to inquire into the charge against him. Thus under s. 21 it is the duty of the Central Excise Officer to whom an arrested person is forwarded to inquire into the charge made against such person. further under proviso (a) to sub-s. (2)of s. 21 if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate.\n\nIt does not however appear that a Central Excise Officer under the Act has power to submit a charge-sheet under s. 173 of the Code of Criminal Procedure. Under s. 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of any offence either\n\n(a) upon receiving a complaint of facts which constitute such offence, of (b) upon a report in writing of such facts made by any police officer, or (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, . that such offence has been committed. A police officer for purposes of cl. (b) above can in our opinion only be a police officer properly so-called as the scheme of the Code of Criminal Procedure shows and it seems therefore that a Central Excise Officer will have to make a complaint under cl. (a) above if he wants the , Magistrate to take cognizance of an offence, for example, under s. 9 of the Act. Thus though under sub-section (2) of s. 21 of the Central Excise Officer under the Act has the powers of an officer-incharge of a police station when investigating a cognizable case, that is for the purpose of his inquiry under sub-s. (1) of s. 21. Section 21 is in terms different from s. 78(3) of the Bihar a_nd Orissa Excise Act, 1915 which came to be considered in Raja Ram Jaiswcil' s\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1966] 3 S.C.R.\n\ncase(') and which provided in terms that \"for the purposes of section 156 of the Code of Criminal Procedure 1898 the area to which an excise officer empowered under section 77: sub-section (2) , is appointed shall be deemed to be a police station, and such officer shall be deemed to be the officer-in-charge of such station\". It cannot therefore be said that the provision in s. 21 is on par with the provision in s. 78(3) of the Bihar and Orissa Excise Act. All that s. 21 provides is that for the purpose of his enquiry, a Central Excise Officer shall have the powers of an officerin-charge of a police station when investigating a cognizable case.\n\nBut even so it appears that these powers do not include the power to submit a charge-sheet under s. 173 of the Code of Criminal Procedure, for unlike the Bihar and Orissa Excise Act, the Central Excise Officer is not deemed to be an officer-in-charge of a police station.\n\nIt has been urged before us that if we considers. 21 in the set•\n\nting of s. 14 of the Act, it would become clear that the enquiry contemplated under s. 21(1) is in substance different from investigation pure and simple into an offence under the Code of Criminal D Procedure. It is not necessary to decide whether the enquiry under s. 14 must also include enquiry mentioned ins. 21 of the Act.\n\nApart from this argument we are of the opinion that mere conferment of powers of investigation into criminal offences under s. 9 • of the Act does not make the Central Excise Officer a police officer even in the broader view mentioned above. Otherwise any E person entrusted with investigation under s. 202 of the Code of Criminal Procedure would become a police officer.\n\nIn any case unlike the provisions of s. 78(3) of the Bihar and Orissa Excise Act, 1915, s. 21 (2) of the Act does not say that the Central Excise Officer shall be deemed to be an officer-in-charge of a police station and the area under his charge shall be deemed lo be a police. station. All that s. 21 does is to give him certain powers to aid him in his enquiry. In these circumstances we are of opinion that even though the Central Excise Officer may have when making enquiries for purposes of the Act powers which an officer-in-charge of a police station has when investigating a cognizable offence, he docs not thereby become a police officer even if we give the broader meaning to those words in s. 25 of the Evi- '1ence Act. The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915, the appellant cannot take advantage of the decision of this Court in Raja RamJaiswals' case( I) taking even the broader view of the words \"police officer\" in\n\ns. 25 of the Evidence Act. We are of opinion that the present case is more in accord with the case of Barkat Ram(2). In this view\n\n(I) [1964) 2 S.C.R. 7S2.\n\n\n,,..\n\nJ....\n\n... , ....\n\n...\n\n\"'\n\n• • •\n\n~.r •\n\n--..\n\n• J\n\n\" ;\"'\n\n--•\n\nof the matter the statement made by the appellant to the Deputy Superintendent of Customs and Excise would not be hit by s. 25 of the Evidence Act and would be admissible in evidence unless the appellant can take advantage of s. 24 of the Evidence Act.\n\nAs to that it was urged on behalf of the appellant in the High Court that the confessional statement was obtained by threats. This was not accepted by the High Court and therefore s. 24 of the Evidence Act has no application in the present case. It is not disputed that if this statement is admissible, the conviction of the appellant is correct. As we have held that a Central Excise Officer is not a police officer within the meaning of those words in s. 25 of the Evidence Act the appellant's statement is admissible. It is not ruled out by anything in s. 24 of the Evidence Act and so the appellant's conviction is correct and the appeal must be dismissed. We hereby dismiss the appeal.\n\nAppeal dismissed.", "total_entities": 129, "entities": [{"text": "BADKU JOTI SAVANT", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "BADKU JOTI SAVANT", "offset_not_found": false}}, {"text": "STATE OF MYSORE", "label": "RESPONDENT", "start_char": 24, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "STATE OF MYSORE", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 88, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 126, "end_char": 133, "source": "metadata", "metadata": {"canonical_name": "J.C. 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Evidence Act", "label": "STATUTE", "start_char": 2698, "end_char": 2717, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "(1964] 2 S.C.R. 752", "label": "CASE_CITATION", "start_char": 2855, "end_char": 2874, "source": "regex", "metadata": {}}, {"text": "(1962) 3 S.C.R. 338", "label": "CASE_CITATION", "start_char": 2986, "end_char": 3005, "source": "regex", "metadata": {}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 3313, "end_char": 3329, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar and A. G. Ratnaparkhi, for the appellant."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 3334, "end_char": 3351, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar and A. G. Ratnaparkhi, for the appellant."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 3373, "end_char": 3382, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, D. R. Prem, R.H. Dhebar and B. R. G. K. Achar, for the respondent."}}, {"text": "D. R. Prem", "label": "LAWYER", "start_char": 3384, "end_char": 3394, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, D. R. Prem, R.H. Dhebar and B. R. G. K. Achar, for the respondent."}}, {"text": "R.H. Dhebar", "label": "LAWYER", "start_char": 3396, "end_char": 3407, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, D. R. Prem, R.H. Dhebar and B. R. G. K. Achar, for the respondent."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 3412, "end_char": 3429, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, D. R. Prem, R.H. Dhebar and B. R. G. K. Achar, for the respondent."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 3452, "end_char": 3460, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General and B. R. G. K. Achar, for the intervener."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 3578, "end_char": 3585, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Wanchoo, J. This is an appeal on a certificate granted by the Mysore High Court."}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 3640, "end_char": 3657, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by Wanchoo, J. This is an appeal on a certificate granted by the Mysore High Court."}}, {"text": "s. 167", "label": "PROVISION", "start_char": 3694, "end_char": 3700, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 3717, "end_char": 3728, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 9", "label": "PROVISION", "start_char": 3755, "end_char": 3759, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 3772, "end_char": 3783, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "November 27, 1960", "label": "DATE", "start_char": 3928, "end_char": 3945, "source": "ner", "metadata": {"in_sentence": "The incident out of which the present appeal has arisen took place on November 27, 1960 when Goa was not a part oflndia but was Portuguese territory."}}, {"text": "Belgaum", "label": "GPE", "start_char": 4069, "end_char": 4076, "source": "ner", "metadata": {"in_sentence": "The Deputy Superintendent of Customs, Goa Frontier Division, Belgaum received information that contraband goods would be found in the house of the appellant."}}, {"text": "Goa Customs authorities", "label": "ORG", "start_char": 4656, "end_char": 4679, "source": "ner", "metadata": {"in_sentence": "Inside the pouches, four gold bars with foreign marks and labels of Goa Customs authorities were found."}}, {"text": "November 30, 1960", "label": "DATE", "start_char": 4920, "end_char": 4937, "source": "ner", "metadata": {"in_sentence": "On November 30, 1960, the appellant was arrested and interrogated by the Deputy Superintendent of Customs and Excise."}}, {"text": "Vittal Morajkar", "label": "OTHER_PERSON", "start_char": 5304, "end_char": 5319, "source": "ner", "metadata": {"in_sentence": "During this interrogation, the appellant admitted that the four gold bars had been given to him on November 27, 1960 in the morning by one Vittal Morajkar of Goa so that he might deliver them back to Morajkar on the motor-stand at Belgaum or near there, and he had kept them in his house."}}, {"text": "Morajkar", "label": "OTHER_PERSON", "start_char": 5365, "end_char": 5373, "source": "ner", "metadata": {"in_sentence": "During this interrogation, the appellant admitted that the four gold bars had been given to him on November 27, 1960 in the morning by one Vittal Morajkar of Goa so that he might deliver them back to Morajkar on the motor-stand at Belgaum or near there, and he had kept them in his house."}}, {"text": "s. 167", "label": "PROVISION", "start_char": 5562, "end_char": 5568, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 5585, "end_char": 5596, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Central Excise Offier under the Central Excises and Salt Act", "label": "STATUTE", "start_char": 5695, "end_char": 5755, "source": "regex", "metadata": {}}, {"text": "s. 25", "label": "PROVISION", "start_char": 5864, "end_char": 5869, "source": "regex", "metadata": {"linked_statute_text": "Central Excise Offier under the Central Excises and Salt Act", "statute": "Central Excise Offier under the Central Excises and Salt Act"}}, {"text": "s. 25", "label": "PROVISION", "start_char": 6213, "end_char": 6218, "source": "regex", "metadata": {"linked_statute_text": "Central Excise Offier under the Central Excises and Salt Act", "statute": "Central Excise Offier under the Central Excises and Salt Act"}}, {"text": "Customs Officer under the Sea Customs Act", "label": "STATUTE", "start_char": 6418, "end_char": 6459, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 25", "label": "PROVISION", "start_char": 6507, "end_char": 6512, "source": "regex", "metadata": {"linked_statute_text": "Customs Officer under the Sea Customs Act", "statute": "Customs Officer under the Sea Customs Act"}}, {"text": "s. 25", "label": "PROVISION", "start_char": 6786, "end_char": 6791, "source": "regex", "metadata": {"linked_statute_text": "Customs Officer under the Sea Customs Act", "statute": "Customs Officer under the Sea Customs Act"}}, {"text": "India", "label": "GPE", "start_char": 6878, "end_char": 6883, "source": "ner", "metadata": {"in_sentence": "in India as to the meaning of the words \"police officer\" used in s. 25 of the Evidence Act."}}, {"text": "s. 25", "label": "PROVISION", "start_char": 6940, "end_char": 6945, "source": "regex", "metadata": {"linked_statute_text": "Customs Officer under the Sea Customs Act", "statute": "Customs Officer under the Sea Customs Act"}}, {"text": "s. 25", "label": "PROVISION", "start_char": 7459, "end_char": 7464, "source": "regex", "metadata": {"linked_statute_text": "Customs Officer under the Sea Customs Act", "statute": "Customs Officer under the Sea Customs Act"}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 7934, "end_char": 7951, "source": "ner", "metadata": {"in_sentence": "The other High Courts have followed one view or the other, the majority being in favour of the view taken by the Bombay High Court."}}, {"text": "Nanoo Sheikh Ahmed", "label": "OTHER_PERSON", "start_char": 8046, "end_char": 8064, "source": "ner", "metadata": {"in_sentence": "Bombay High Court in Nanoo Sheikh Ahmed(') is the correct view and that the view of the Patna High Court in Radha Kishun Marwari(4) is not correct."}}, {"text": "Patna High Court", "label": "COURT", "start_char": 8113, "end_char": 8129, "source": "ner", "metadata": {"in_sentence": "Bombay High Court in Nanoo Sheikh Ahmed(') is the correct view and that the view of the Patna High Court in Radha Kishun Marwari(4) is not correct."}}, {"text": "Radha Kishun Marwari(4", "label": "OTHER_PERSON", "start_char": 8133, "end_char": 8155, "source": "ner", "metadata": {"in_sentence": "Bombay High Court in Nanoo Sheikh Ahmed(') is the correct view and that the view of the Patna High Court in Radha Kishun Marwari(4) is not correct."}}, {"text": "[1962] 3 S.C.R. 338", "label": "CASE_CITATION", "start_char": 8277, "end_char": 8296, "source": "regex", "metadata": {}}, {"text": "Radha Kislzu11", "label": "OTHER_PERSON", "start_char": 8444, "end_char": 8458, "source": "ner", "metadata": {"in_sentence": "C.I./66-13\n\nSUPREME\n\nCOURT REPOlt'l'S\n\nCourt in Radha Kislzu11 Manmri(') is the correct one."}}, {"text": "Act", "label": "STATUTE", "start_char": 8696, "end_char": 8699, "source": "regex", "metadata": {}}, {"text": "s. 25", "label": "PROVISION", "start_char": 8836, "end_char": 8841, "source": "regex", "metadata": {"linked_statute_text": "Central Excise Officer\n\nunder the Act", "statute": "Central Excise Officer\n\nunder the Act"}}, {"text": "Section 9", "label": "PROVISION", "start_char": 9362, "end_char": 9371, "source": "regex", "metadata": {"linked_statute_text": "Central Excise Officer\n\nunder the Act", "statute": "Central Excise Officer\n\nunder the Act"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 9572, "end_char": 9576, "source": "regex", "metadata": {"linked_statute_text": "Central Excise Officer\n\nunder the Act", "statute": "Central Excise Officer\n\nunder the Act"}}, {"text": "s. 8", "label": "PROVISION", "start_char": 9583, "end_char": 9587, "source": "regex", "metadata": {"linked_statute_text": "Central Excise Officer\n\nunder the Act", "statute": "Central Excise Officer\n\nunder the Act"}}, {"text": "s. 37", "label": "PROVISION", "start_char": 9644, "end_char": 9649, "source": "regex", "metadata": {"linked_statute_text": "Central Excise Officer\n\nunder the Act", "statute": "Central Excise Officer\n\nunder the Act"}}, {"text": "s. 13", "label": "PROVISION", "start_char": 9952, "end_char": 9957, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 10019, "end_char": 10037, "source": "ner", "metadata": {"in_sentence": "Under s. 13 of the Act, any Central Excise Officer duly empowered by the Central Government in this behalf may arrest any person whom he has reason to believe to be liable to punishment under the Act."}}, {"text": "Section 18", "label": "PROVISION", "start_char": 10147, "end_char": 10157, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 10331, "end_char": 10363, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 19", "label": "PROVISION", "start_char": 10432, "end_char": 10442, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 11024, "end_char": 11029, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "section 19", "label": "PROVISION", "start_char": 11126, "end_char": 11136, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 11560, "end_char": 11592, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 21", "label": "PROVISION", "start_char": 11725, "end_char": 11730, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 11858, "end_char": 11884, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 25", "label": "PROVISION", "start_char": 11977, "end_char": 11982, "source": "regex", "metadata": {"linked_statute_text": "Central Excise Officer under the Act has all the powers of an officer-in-charge of a police station under chapter XIV of the Code", "statute": "Central Excise Officer under the Act has all the powers of an officer-in-charge of a police station under chapter XIV of the Code"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 12387, "end_char": 12392, "source": "regex", "metadata": {"linked_statute_text": "Central Excise Officer under the Act has all the powers of an officer-in-charge of a police station under chapter XIV of the Code", "statute": "Central Excise Officer under the Act has all the powers of an officer-in-charge of a police station under chapter XIV of the Code"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 12573, "end_char": 12578, "source": "regex", "metadata": {"linked_statute_text": "Central Excise Officer under the Act has all the powers of an officer-in-charge of a police station under chapter XIV of the Code", "statute": "Central Excise Officer under the Act has all the powers of an officer-in-charge of a police station under chapter XIV of the Code"}}, {"text": "s. 173", "label": "PROVISION", "start_char": 12975, "end_char": 12981, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 12989, "end_char": 13015, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 190", "label": "PROVISION", "start_char": 13023, "end_char": 13029, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 13037, "end_char": 13063, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 13555, "end_char": 13581, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 9", "label": "PROVISION", "start_char": 13773, "end_char": 13777, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 13827, "end_char": 13832, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 14032, "end_char": 14037, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 21", "label": "PROVISION", "start_char": 14039, "end_char": 14049, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78(3)", "label": "PROVISION", "start_char": 14077, "end_char": 14085, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa Excise Act, 1915", "label": "STATUTE", "start_char": 14104, "end_char": 14127, "source": "regex", "metadata": {}}, {"text": "Raja Ram Jaiswcil", "label": "OTHER_PERSON", "start_char": 14159, "end_char": 14176, "source": "ner", "metadata": {"in_sentence": "Section 21 is in terms different from s. 78(3) of the Bihar a_nd Orissa Excise Act, 1915 which came to be considered in Raja Ram Jaiswcil' s\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1966] 3 S.C.R.\n\ncase(') and which provided in terms that \"for the purposes of section 156 of the Code of Criminal Procedure 1898 the area to which an excise officer empowered under section 77: sub-section (2) , is appointed shall be deemed to be a police station, and such officer shall be deemed to be the officer-in-charge of such station\".", "canonical_name": "Raja Ram Jaiswcil"}}, {"text": "section 156", "label": "PROVISION", "start_char": 14285, "end_char": 14296, "source": "regex", "metadata": {"linked_statute_text": "Orissa Excise Act, 1915", "statute": "Orissa Excise Act, 1915"}}, {"text": "Code of Criminal Procedure 1898", "label": "STATUTE", "start_char": 14304, "end_char": 14335, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 77", "label": "PROVISION", "start_char": 14388, "end_char": 14398, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure 1898", "statute": "the Code of Criminal Procedure 1898"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 14600, "end_char": 14605, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure 1898", "statute": "the Code of Criminal Procedure 1898"}}, {"text": "s. 78(3)", "label": "PROVISION", "start_char": 14638, "end_char": 14646, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure 1898", "statute": "the Code of Criminal Procedure 1898"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 14692, "end_char": 14697, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure 1898", "statute": "the Code of Criminal Procedure 1898"}}, {"text": "s. 173", "label": "PROVISION", "start_char": 14973, "end_char": 14979, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure 1898", "statute": "the Code of Criminal Procedure 1898"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 14987, "end_char": 15013, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 14", "label": "PROVISION", "start_char": 15223, "end_char": 15228, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure 1898", "statute": "the Code of Criminal Procedure 1898"}}, {"text": "s. 21(1)", "label": "PROVISION", "start_char": 15299, "end_char": 15307, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure 1898", "statute": "the Code of Criminal Procedure 1898"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 15481, "end_char": 15486, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 15668, "end_char": 15672, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 202", "label": "PROVISION", "start_char": 15844, "end_char": 15850, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 15858, "end_char": 15884, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 78(3)", "label": "PROVISION", "start_char": 15954, "end_char": 15962, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar and Orissa Excise Act, 1915", "label": "STATUTE", "start_char": 15970, "end_char": 16003, "source": "regex", "metadata": {}}, {"text": "s. 21", "label": "PROVISION", "start_char": 16005, "end_char": 16010, "source": "regex", "metadata": {"linked_statute_text": "the Bihar and Orissa Excise Act, 1915", "statute": "the Bihar and Orissa Excise Act, 1915"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 16214, "end_char": 16219, "source": "regex", "metadata": {"linked_statute_text": "the Bihar and Orissa Excise Act, 1915", "statute": "the Bihar and Orissa Excise Act, 1915"}}, {"text": "s. 25", "label": "PROVISION", "start_char": 16619, "end_char": 16624, "source": "regex", "metadata": {"linked_statute_text": "the Bihar and Orissa Excise Act, 1915", "statute": "the Bihar and Orissa Excise Act, 1915"}}, {"text": "scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915", "label": "STATUTE", "start_char": 16653, "end_char": 16739, "source": "regex", "metadata": {}}, {"text": "Raja RamJaiswals", "label": "OTHER_PERSON", "start_char": 16810, "end_char": 16826, "source": "ner", "metadata": {"in_sentence": "The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915, the appellant cannot take advantage of the decision of this Court in Raja RamJaiswals' case( I) taking even the broader view of the words \"police officer\" in\n\ns. 25 of the Evidence Act.", "canonical_name": "Raja Ram Jaiswcil"}}, {"text": "s. 25", "label": "PROVISION", "start_char": 16900, "end_char": 16905, "source": "regex", "metadata": {"linked_statute_text": "The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915", "statute": "The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915"}}, {"text": "Barkat Ram(2", "label": "OTHER_PERSON", "start_char": 17002, "end_char": 17014, "source": "ner", "metadata": {"in_sentence": "We are of opinion that the present case is more in accord with the case of Barkat Ram(2)."}}, {"text": "[1964) 2 S.C.R. 7", "label": "CASE_CITATION", "start_char": 17035, "end_char": 17052, "source": "regex", "metadata": {}}, {"text": "s. 25", "label": "PROVISION", "start_char": 17250, "end_char": 17255, "source": "regex", "metadata": {"linked_statute_text": "The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915", "statute": "The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 17355, "end_char": 17360, "source": "regex", "metadata": {"linked_statute_text": "The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915", "statute": "The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 17563, "end_char": 17568, "source": "regex", "metadata": {"linked_statute_text": "The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915", "statute": "The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915"}}, {"text": "s. 25", "label": "PROVISION", "start_char": 17837, "end_char": 17842, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 17939, "end_char": 17944, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_706_723_EN", "year": 1966, "text": "KULATHIL MAMMU\n\nTHE STATE OF KERALA\n\nMarch 2, 1966\n\n[P.B. GAJrnDRAGADKAR, C.J., K.N. WANCHOO, M. HIDAYATULLAll, J.C. SHAH, S.M. SIKRI\n\nAND V. RAMASWAMI, JJ.)\n\nCons1itu#o11 of India Art. ?-'Migrated' 1neaning of-lYhether 111ere nwrenient froni one place to anather constitutes 1nigratlon.\n\nA was born in Kozhikode of parents who were both Indian citizens.\n\nTn 1948 at the age of 12 he went to Pakistan.\n\nHo came to India for some time in 1954 on a Pakisl3ni passport in which he wa.• described as a Pakistani national.\n\nHe again came for some time in 1956. After that there was no record in Kozhikode of his movements but in 1964 he was again found there without any valid travel documents. On action under the Foreigners Act being taken against him a writ petition was filed in the High Court and it was urged that he was an Indian citizen.\n\nThe High Court held that he had 'migrated' to Pakistan within the meaning of Art. 7 of the Constitution in 1948, and therefore was a foreigner.\n\nWith certificate the appellant came to this Court.\n\nHELD: (per P.B. Gajendragadkar, C.J .. K. N. Waochoo, S. M. Sikri and V. Ramaswami, JJ.)\n\n(i) The word \"migrated\" is capable of two meanings : In its narrower connotation it means going from one place to another with the intention of residing permanently in the latter place; in its wider connotation ii simply means going from one place to another whether or not with tho\n\nintention of permanent r.,; idence in the latter place.\n\nIn Art. 7 the word is used in its wider sense, Shanno Devi's caso in which the narro\\\\er\n\nmeaning was attribwed to the word was wrongly decided.\n\n[709 C;\n\n714 A) SmJ. Shanno Devi v. Manga/ Sain, A.LR. 1961 S.C. 58, held wrongly decided.\n\n(ii) 'The non--0b.rtante clause with which Arts. 6 and 7 begin shows that the concept of domicile found in Art. 5 is not to be brought into these Articles.\n\nMoreover Arts. 6 aod 7 speak of migration after March I, 1947 when panition had not yet taken place.\n\nAt that time tho question of change of domicile did not raise, and even after partition\n\npeople moved \\vithout forming anr definite intention as to their pennanent place of abode.\n\n[712 D; 713 B\n\n(iil) However, C\\en when used in the wider sense the word \"migrated\" G cannot take in movement which was involuntary or for a specific purpose and for a short and limited period. [713 0-E!J\n\nPer Hidayatullah J. (dissenting) : 11lc decision in Shanno Devi's case was correct. The word \"migrate\" in the context of Arts. 6 and 7 cannot mean mere going fn.>rr. onl! pi.ace lo another.\n\nIust as domicile is a question of fact and intention, migra- H tion is also a question of fact and intention. The immediate requirement ot intention in migration a.. used in tho Constitution is that tho person\n\nintended to change his abode from one part of India to another. lf the part to which he went came to be incorporated in the territory of Pakis-\n\nJ...,\n\n.. . •\n\nD l,\n\nKULATHIL MAMMU v. KERALA (Wanchoo, !.) 707\n\ntan he had to return the manner prescribed in the proviso to Art. 7 or he would not be deemed to be a citizen of In&ia. [719 B-C; 718 F-Hl\n\nPer Shah J.-The word \"migrate'' is used in more senses than one and the context must decide its meaning. In ascertaining the meaning of that word in Arts. 6 and 7 the court would have regard to the scope and obja:t of the .constitutional provisions examined ii:i the light of te. events which were wunessed both before and after the birth of the dommtons of India and Pakistan. Another matter that must be kept in mind is that Arts. 6 and 7 deal with the status at the commencement of the Constitution. And if intention to take up permanent residence in one or the other dominion, coupled with movement could alone justify a claim for citizenship of the country into which the migrant has moved, a large 11umber of persons who migrated from the territory of Pakistan to India would find themselves without citizenship of India. Therefore \"migrated from the territory of India\" within the meaning of Art. 7 means moving from one place to another but not necessarily with the intention of permanently residing in the country into which the person has moved.\n\n[720 F; 721 C; 723 A-Bl Case law considered.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 24 of 1965.\n\nAppeal from the judgment and order dated December 21, 1964, of the Kerala High Court in O.P. No. 3077 of 1964.\n\nO.P. Malhotra, S.N. Prasad, J.B. Dadachanji, O.C. Mathur and Ravindra Narain, for the appellant.\n\nNiren De, Additional Solicitor-General, A.G. Puddissery and M.R.K. Pillai, for the respondents.\n\nNiren De, Additional Solicitor-General, R. Ganapathy Iyer and B.R.G.K. Achar, for the intervener.\n\nThe Judgment of GAJENDRAGADKAR, C.J., WANCHOO, SII(RI AND RAMASWAMI, JJ. was delivered by WANCHOO J., HIDAYATULLAH AND SHAH, JJ. delivered separate opinions.\n\nWanchoo, J.-The main question that arises in this appeal on a certificate granted by the High Court of Kerala is the interpretation of the word \"migrated\" in Art. 7 of the Constitution. Aboobacker on whose behalf the writ petition from which this appeal has arisen was filed in the High Court was born on March 5, 1936 in the district of Kozhikode of parents who were both Indian citizens.\n\nAboobacker left India sometime in 1948 and went to Karachi in Pakistan when he was a boy of 12 years of age. He remained in Pakistan till 1954.\n\nOn March 10, 1954, he obtained a Pakistani passport and came to district Kozhikode in India on visa granted to him in September 1954.\n\nOn November 1, 1954, he again left for Pakistan. In 1956 he came to India again with the same passport but on a fresh visa obtained in April 1956. He remained in India till June 1956 when he returned again to Pakistan. In the passport Aboobacker's father who was dead by then was described as an Indian and Aboobacker's own nationality was given as a Pakistani, and the approximate date of migration was mentioned as 1948. There was no record in Kozhikode after June 1956 as\n\n708 .\n\nSUPllBllB COURT llBPOll'l'S\n\n[1966) 3 S.C.R.\n\nto the whereabouts of Aboobacker; but in October 1964 he was A found living in the district of Kozhikode and did not have any valid travel documents. Consequently he was arrested and a case under the Indian Passport Rules 1950 was registered against him.\n\nHe was released on bail thereafter and the matter was reported to State Government. On this report the State Government passed on order on November 5, 1964 under the Foreigners Act (No. 31 B of 1946) requiring him not to remain in India. As Aboobacker was unwilling to comply with the order he was arrested and detained.\n\nOn November 16, 1964, a writ petition was filed on behalf of Aboobacker by the appellant in the High Court, and the contention raised therein was that Aboobacker was an Indian citizen and therefore the order passed against him under the Foreigner's Act was c illegal. It was prayed that the order should be quashed and Aboobacker released. The petition was opposed on behalf of the State and on the facts which we have set out above and which are not in dispute now, the contention of the State was that Aboobacker ceased to be a citizen of India when the Constitution came into force by virtue of Art. 7 thereof and in consequence the order directing him to leave India under the Foreigner's Act was legal and proper.\n\nThe main contention raised before the High Court on behalf of Aboobacker was that Art. 7 had no application in this case because migration contemplated in that Article must be with the intention to leave India permanently and settle finally in Pakistan and that as Aboobacker was a minor at the time he left India he could not be imputed with any such intention, and in any case he had no such intention because he had simply gone to Karachi in search of livelihood as he was poor. On the other hand, it was contended on behalf of the State that no such intention was necessary and that migration under Art. 7 of the Constitution simply meant the physical act of going from India to Pakistan and if any person did so whether he was a minor or a major he would be covered by Art. 7 of the Constitution. Reliance was placed in the High Court on behalf of A boo backer on a decision of this Court in Smt. Shanno\n\nDe1i v. Mango/ Sain.(') The High Court seems to have held that even if any such intention was necessary there was sufficient indication to prove that Aboobacker had such intention. The High Court did not accept the extreme argument on behalf of Aboobacker that a minor could never have any such intention.\n\nIt therefore held that Aboobacker had migrated to Pakistan within the meaning of Art. 7 and was thus a foreigner within the meaning of that word in the Foreigner's Act and the State Government was justified in ordering him not to remain in India, and as he was unwilling to comply with that order his arrest for the purpose of deporting him to Pakistan was justified. In consequence, the\n\n\"(ijll961] I S.C.R. 576: A 1.R. 1961 S.C. 58.\n\n... ,/'\n\nKULATHIL MAMMU v. KERALA (Wanchoo, /.) 709\n\nA petition was dismissed. Thereafter on an application for a certificate, the High Court granted the certificate to appeal to this Court on the ground that a question as to the interpretation of Art. 7 of the Constitution was involved in the case.\n\nThe main question that falls for consideration therefore is the meaning of the word \"migrated\" used in Art. 7 of the Constitution B Article 7 runs thus:\n\n\"Notwithstanding anything in articles 5 and 6, a person who has after the first day of March 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen oflndia:\n\nProvided ........................ \" The word \"migrated\" is capable both of a narrower meaning as well as of a wider meaning. In its narrower connotation it means . going from one place to another with the intention of resi4ing permanently in the latter place; in its wider connotation it simply means going from one place to another whether or not with any intention of permanent residence in the latter place. In Webster's dictionary (Second Edition, 1937), the word \"migrate\" means \"to go from one place to another; especially to move from one country, region or place of abode or sojourn to another, with a view to residence; to move.\" Corpus Juris Secundum published in 1948 gives the same meaning except that it adds one more meaning namely, \"to change one's place of residence\". It will be seen that if the narrower meaning is given an intention to settle in the place to which a person moves on migration is necessary. On the other hand if the wider meaning is given all that is necessary is that there should be movement from one place to another whether or not there is any intention of settlement in the place to which one moves. The question that is posed for our consideration is which of the two meanings was intended by the Constitution-makers when they used the word \"migrated\" in Art. 7. The matter has been referred to a larger Bench because when dealing with the same word \"migrated\" in Art. 6, this Court took the view in Smt. Shanno Devi's case(!) that the word \"migrated\" had been used in that Article in the narrower sense. The contention on behalf of Aboobacker is that the same narrower meaning should be given to this word in Art. 7.\n\nIn order to decide the question whether the narrower or the wider meaning of the word \"migrated\" was intended by the Constitution-makers, we have to look at the scheme of Part II of the Constitution which deals with citizenship. The first Article in that Part is Art. 5 and it lays down the normal rule of citizenship. Under that Article every person who has his domicile in the territory of India at the commencement of the Constitution and satisfies one of\n\n(I) [1961] l S.C.R. 576 : A.I.R. 1961 S.C. 58.\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1966] 3 S.C.R.\n\nthe three conditions laid down therein is a citizen of India. But the Constitution also deals with the abnormal situation that prevailed in the country about the time of its partition between India and Pakistan and Articles 6 and 7 deal with that abnormal situation.\n\nIt is well-known that there was large movement of population from what is now the territory of Pakistan to the territory of India and vice l'ersa from about March 1947 and this continued late into\n\n1948. Articles 6 deals with this movement of population from the territory now included in Pakistan to the territory of India while Article 7 deals with the movement from the territory of India to what is now the territory of Pakistan. Both these Articles begin with a non obstante \"Clause.\n\nArticle 6 begins with the words \"notwithstanding anything in Article 5\" and Article i begins with the words \"notwithstanding anything in articles 5 and 6\". The presence of the non vbstante clause in both these Articles clearly indicates that they were meant to deal with the abnormal situation to which we have already referred and prescribe conditions as to who shall be deemed to be citizens of India on the date of the commencement of the Constitution (Art. 6) and who shall not be so deemed (Art. 7). It is also remarkable that both these Articles are silent on the question of domicile and the presence of the non obstante clause in the beginning of these Articles clearly shows in our opinion that the concept of domicile was not to be brought into them when deciding who shall be deemed citizens of India (Art. 6) or who shall not be deemed to he citizens of India (Art. 7).\n\nThese two Articles make special provision for dealing with the abnormal situation created by large movement of population from one side to the other and vice versa and lay down special criteria of their own, in one case for deciding who shall be deemed to be citizens of India (Art. 6) and in the other case who shall not be deemed to be such citizens (Art. 7).\n\nIt seems to us therefore that the Constitution-makers did not intend that the concept of domicile should be brought into Articles 6 and 7 notwithstanding that such concept was present in Art. 5, which provides for the normal case of citizenship of India. Jn this situation it seems to us clear that when Art. 6 a; well as Art. 7 use the word \"migrated\", the intention must have been to gi' e the wider meaning to that word, namely, going from one territory to the other.\n\nWe may in this connection refer to the following observations of Mahajan, C.J. in Central Bank of India v. Ram Narain(') to show that the idea of domicile or permanent change of residence could not be a part of the meaning of the word \"migrated\" as used in Arts. 6 and 7 :-\n\n\"It has to he remembered that in October or November 1947 men's minds were in a state of flux. The partition of India and the events that followed in its wake in both\n\n- ··--·-\n\n(!) [19551 I S.C.R. 697 : A.LR. 1955 S.C. 36.\n\nF >-- ...\n\nKULATHIL MAMMU v. KERALA (Wanchoo, /.) 71t\n\nPakistan and India were unprecedented and it is difficult to cite any historical precedent for the situation that arose.\n\nMinds of people affected by this partition and who were living in those parts, were completely unhinged and unbalanced and there was hardly any occasion to form intentions requisite for acquiring domicile in one place or another. People vacillated and altered their programmes from day to day as events happened. They went backward and forward; families were sent from one place to another for the sake of safety.\n\n\"Most of those displaced from West Pakistan had no permanent homes in India where they could go and take up abode. They overnight became refugees, living in camps in Pakistan or in India. No one, as a matter of fact, at the moment thought that when he was leaving Pakistan for India or vice versa that he was doing so for ever or that he was for ever abandoning the place of his ancestors.\" If this was the situation (and we have no doubt that it was so even from March 1947) at the time when the abnormal movement of population from one side to the other took place, there can be no doubt that when the Constitution-makers used the word \"migrated\" in Arts. 6 and 7 they could never have intended to give what we have called the narrower meaning to the word \"migrated\", for there could be no deliberate intention to change one's residence permanently when this large movement of population from one side to the other and vice versa took place. That is also the reason why both these Articles begin with a non obstante clause and thus in our opinion exclude the concept of domicile for the purposes of these Articles. If that was so and if the concept of domicile is excluded from these two Articles and we have no doubt that it is so excluded by the use of the non obstante clause in both these Articles, the word \"migrated\" used therein must be given the wider meaning. If we give the narrower meaning to it we shall be introducing the concept of domicile in these two \"Articles which was obviously not intended by the Constitution-makers and in any case was definitely negatived by the use of the non obstante clause at the beginning of both these Articles.\n\nIt is said that curious consequences would follow if the intention of residing permanently in one territory or another when the migration took place is not inherent in these two Articles. These curious consequences are said to be illustrated by the case of two persons, one of whom was born in what is now India and has all along lived there and another person who though born in what is now India went to live in areas now in Pakistan and then moved back to areas in what is now India. The first named person would have to satisfy the requirement of domicile at the commencement of the Constitution under Art. 5 before he can be a citizen of India while the other\n\n712 SUPllEMI! COURT RBPOllTS\n\n[1966) 3 S.C.R.\n\nwould not have to satisfy this condition if he falls within Art. 6.\n\nA That is undoubtedly so.\n\nBut we do not see anything strange in it.\n\nIn the hypothetical example the first person would have no difficulty in establishing his domicile in India for the very assumption that he was born in India and lived in India all along would prove his domicile. In the case of the other man the necessity of domicile is certainly obviated on our interpretation of Art. 6 but that is B because Art. 6 was dealing with an abnormal situation and therefore did away with the concept of domicile by the use of the non obstante clause therein. That is one reason why we think that the Constitutio.n-makers intended to give what we have called the wider meaning to the word \"migrated\" in Articles 6 and 7.\n\nThen we may refer to Art. 8.\n\nThat Article also begins with the non obstante clause \"notwithstanding anything in article 5\".\n\nThat Article confers Indian citizenship on a person who on the face of it had no domicile in India, if certain conditions mentioned therein are fulfilled. It is clear therefore that when Art. 8 as well as Articles 6 and 7 use the non obstante clause, the intention clearly is to exclude the concept of domicile from these three Articles.\n\nArticle 6 would deem a person to be a citizen of India if the conditions thereof were satisfied while Article 7 would make a person not a citizen of India if conditions thereof were satisfied and finally Art. 8 would deem a person to be a citizen oflndia if the conditions thereof were satisfied -all of course at the commencement of the Constitution. We may add that Art. 7 begins with a non obsra11rc clause which excludes both Articles 5 and 6.\n\nTherefore, a person to whom Art. 7 applies cannot claim citizenship either under Art. 5 or under Art. 6.\n\nHe can either fall under the main part of Art. 7 (in which case he will not be deemed to be a citizen of India) or take advantage of the proviso to Art. 7, if he can, to show that he has become a citizen of India thereunder.\n\nThere is another consideration which leads us to the same conclusion. Article 6 which provide; for deeming a person to be a citizen of India lays down in cl. (b) (i) that such person should have migrated to India before the 19th day of July 1948 and should be ordinarily resident in the territory of India since the date of his migration.\n\nNow this provision will apply to all cases of migration before the 19th day of July 1948 and even before the 15th day of August 1947 when India and Pakistan came into existence. Take a case of a person who migrated from what is now the territory of Pakistan to what is now the territory of India in 1946.\n\nAt that time there could he no question of his changing his domicile for both territories were parts of the same country. Therefore when Art. 6 speaks of migration it can only mean going from one part of the country to another and there would be no question of any intention to change the domicile by such migration. Similarly Art. 7 speaks of migration from the territory\n\n.........\n\n\" r\n\n·~ '\n\nKULATHIL MAMMU v. KERALA (Wanchoo, !.) 713\n\nof India to the territory of Pakistan after March 1, 1947. Take the case where a person migrated after March 1, 1947 but before August 15, 1947, when India and Pakistan came into existence. At that time there could be no question of any intention of changing the domicile for the two countries were still one and it was only in June 1947 that the final decision to divide India as it was before August 15, 1947 was taken. Even so, the exact boundary between the two countries which were to come into existence was not settled till the Radcliffe award just about August 15, 1947. In such a situation it would in our opinion be odd to introduce the concept of domicle either in Art. 6 or Art. 7. All these considerations therefore lead us to the conclusion that when the Constitution-makers used the word \"migrated\" in Art. 6 and Art. 7 they used it in the wider sense to which we have referred earlier and not in the narrower sense and this meaning is in our opinion in accord with the circumstances which prevailed at the time which resulted in large movement of population from one side to the other.\n\nEven so we are of opinion that there is one qualification which must be attached to the word \"migrated\" as used in these two Articles, even though that word has the wider meaning of going from one place to another in the context of these Articles. That qualification is that the movement should have been voluntary and should not have been for a specific purpose and for a short and limited period.\n\nA case where a person went on what may be called a visit from the territory of India to the territoryof Pakistan for a short and limited period with a specific purpose would not be covered by the word \"migrated\" as used in art. 7.\n\nSimilarly a case where a person was forced to go from the territory of India to the territory of Pakistan as, for example, where he might have been kidnapped or abducted would not be covered by the word \"migrated\" as used in Art. 7. Barring such cases the word \"migrated\" as used in Articles 6 and 7 has the wiaer meaning, namely, movement from one territory to another territory whether or not with the intention of permanent residence in the latter place. We may in this connection refer to State of Bihar v. Kumar Amar Singh( I), In that case a lady went to Karachi in July 1948 leaving her husband .in India. Her case was that she had gone there for medical treatment, but this was found to be false.\n\nIt was held that she had migrated from India to Pakistan after March l, 1947 and even if Art. 5 could be said to be applicable on the assumption that her domicile was that of her husband, the case was covered by Art. 7 which applied notwithstanding anything in Art. 5. Thus this case shows that if migration was voluntary and not with a specific purpose and for a short and limited period, Art. 7 would apply irrespective of the fact whether the migration was with the intention of residing permanently in the place {o which the person migrated.\n\n(1) [1955] 1 S.C.R. 1259: A.I.R. 1955 S.C. 282.\n\nSUPREME\n\nCOURT RBPOllTS\n\n\nThis brings us to Smt. Shanno Devi's case('). We are of opinion that the narrower meaning given in that case to the word \"migrated\" as used in Art. 6 is with respect not correct, and that the word\n\n\"migrated\" used in Arts. 6 and 7 has the wider meaning namely, roming or going from one place to another, whether or not with the intention of residence in the latter place, subject to the qualification which we have already indicated.\n\nWe may incidentally refer to Art. 9 also though it docs not directly arise insofar as the question before us is concerned. That Article provides that no person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8 if he has voluntarily acquired the citizenship of any foreign State. That Article came up for consideration rn State of Madhya Pradesh v. Peer Mohd. & Another(') and it was held that it did not apply to a case of acquisition of foreign citizenship after the Constitution came into force but only applied to such <:ases where foreign citizenship was acquired before the Constitution commenced.\n\nBy oversight however in Abdul Sattar Haji Ibrahim Patel v. State of Gujarat(') it has been stated that cases in which migration had taken place after January 26, 1950 fall to be considered under Art. 9 of the Constitution. Article 9 does not use the word \"migration\" and deals only with voluntary acquisition of citizenship of a foreign State before the Constitution came into force as already decided in Peer Mohd.'s case(2).\n\nWe have thought it fit to refer to Art. 9 to correct the slip which has occurred in Abdul\n\nSattar' s case(').\n\nCases of voluntary acquisition of foreign citizenship after the commencement of the Constitution have to be dealt with by the Government of India under the Citizenship Act, 1955.\n\nComing now to the facts of the present case it is obvious that Aboobacker went voluntarily to the territory of Pakistan some time after March I, 1947.\n\nIt is equally obvious that he did not go for any specific purpose and for a short and limited perio l His case therefore clearly falls within the meaning which we have given to the word \"migrated\" in Art. 7 and therefore by virtue of thllt Article he will be deemed not to be a citizen of India on the date of the commencement of the Constitution. Thereafter he has not acquired the citizenship of India and he should therefore be held to be a foreigner; and if that is so, it is not disputed that the order passed by the State Government is legal and the view taken by the High Court thereof is correct.\n\nIn the view we have taken of the meaning of the word \"migrated\" in Art. 7, it is unnecessary to consider the other point raised on behalf of Aboobackcr, namely, that a minor can never have the\n\n(I) (196111 S.C.R. 576: A.1.R. 1961 S.C. 58.\n\n(2) 11963) Supp. I S.C.R. 429.\n\n(3) A.l.R. 1965 S.C. 810.\n\n... -~\n\n~ . •\n\n....\n\n¥''\n\n-..,\n\n....\n\nKULATHIL MAMMU v. KERALA (Hidayatullah, /.) 715\n\nA intention implicit in the narrower meaning of the word \"migrated\".\n\nThe appeal therefore fails and is hereby dismissed.\n\nHidayatullah, J. I agree that Aboobacker, on whose behalf this appeal has been filed cannot be said to have acquired the citizenship of India under the Constitution, bnt as I construe the word 'migrate' in Arts. 6 and 7 of the Constitution differently I wish to record my reasons separately. The facts have been stated already and I need not repeat them at length. Aboobacker left India in 1948 when he was 12 years old and went to Karachi. He came to India in 1954 on a Pakistani passport obtained on March 10, 1954 and returned to Pakistan in November 1954. He came once again on the same passport in June 1956 and went back to Pakistan. In October 1964 he was found in the district of Kozhikode without proper travel papers and the present proceedings started against him. He does not claim to have returned to India under a permit for resettlement of permanent return issued by or under the authority of any law, which primafacie, he ought to have done under Arts. 6 and 7 if he wished to assert his Indian citizenship. As he admittedly 'migrated' after March 1, 1947, Art. 7 would apply to him but his claim is that he did not 'migrate' because he had no intention at the time, being a minor of acquiring a new domicile. He relies on a decision of this Court reported in Smt. Shanno Devi v .\n\nManga/ Sain(') (to which I was a party) in support of his contention that the word 'migrate' means going to another country with a view of acquiring a new domicile there. That ruling is questioned in this appeal. It was decided in Shanno Devi's case(') that the word 'migrate' means going from one place to another with the intention of permanently residing in the latter place .\n\nAs doubt has been expressed I wish to give my reasons for adhering to the view then expressed. The word 'migrate' has many shades of meaning. At one end of the spectrum it means to go from one place to another and at the other to leave one's country to settle in another. The word also connotes movement from one place of abode to another place of abode.\n\nMy learned brother Wanchoo has held that the word 'migrate' means no more than to go from one place to another and that the element of an intention to acquire a domicile is not necessary.\n\nHe has, however, given fostances of some cases in which going from one place to another would not be sufficient because either the going was involuntary or there was no intention to stay in the new place but to return. These instances, which I also adopt, show that migration is not bare physical movement from India to the territory now included in Pakistan but is such movement accompanied by an intention of some sort. What that intention should be is the matter in dispute.\n\n(l) (1961] 1 S.C.R. 576: A.I.R. 1961 S.C. 58.\n\nSUPREME COURT\n\nREPORTS\n\n\nArticles 5* to 10 deal with who shall be regarded as a citizen of India and who shall not.\n\nBy the fifth article• every citizen, who at the conunencement of the Constitution had his domicile in the territory of India and (a) who was born in the territory of India or (b) either of whose parents was born in the territory of India; or (c) who had been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, is a citizen of India. If we were to apply this test we would have to enquire whether A boo backer, who admittedly was born in India, had his domicile in the territory on January 26, 1950. But this article does not apply to him because he admittedly left India for Karachi which is now in Pakistan, after the !st day of March, 1947.\n\nHis case therefore, falls within Art. 7. It is, however, claimed that as he was a minor in I 948 he could not have any intention to change his domicile and as he went to Karachi in search of livelihood, his domicile continued to be Indian. As Aboobacker was aged 12 at the time he went to Karachi, can we say that his going to a place now in the territory of Pakistan amounts in the circumstances to what the word 'migrate' connotes and attracts the provisions applicable to persons migrating after March I, 1947 ?\n\nBefore I attempt to answer this question I shall say a few words about Arts. 6 and 7 because that will show how f view the word 'migrate' used in them. Article 6f begins with the words \"Notwithstanding anything in article 5\" and lays down that a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of the Constitution if he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted) and (a) in case such person had so migrated before the nineteenth day of July, 1948 he had been ordinarily resident in the territory\n\n•5. Citizenship at the commencement of the Constitution.\n\nAt the commeno:mcnt of th~ Constitution every person who has his domicile in the territory of India and- -\n\n(a) who was born in the territory of India; or\n\n(b) either of whose parents was born in the territory of India; or\n\n(c) who has been ordinarily resident in the territory of India for not lcs..'> G than fiv~ years immediately preceding such commencement\n\nsha11 be a citizen of India. t\"6. Rights of citizenship of ocrlain pcr5ons who have migrated to India from Pakistan.\n\nNotwithstanding anything in article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shaJI be deemed to be a citizen of India at the commencement of this Constitution if-\n\n(1) be or either of bis parents or any of bis grand parents was born in India ..\n\ndefined in tho Government of India Act, 193 5 (as ori&inally enacted); and\n\n, ~• F\n\nKULATHIL MAMMU v. KERALA (Hidayatu/lah, J.) 717\n\nof India since the date of his migration, or (b) in case snch person had so migrated on or after the nineteenth day of July, 1948, he had been registered as citizen of India. The non obstante clause has the effect or segregating article 6 from Art. 5.\n\nViewing Aboobacker's case in the light of Art. 6 I find that he has not applied for registration nor has he proved that he returned to India before the nineteenth day of July, 1948. In fact he came back much after that date. Since Art. 6 deals with rights of citizenship of persons who migrated to India from Pakistan both the conditions in Art. 6 are not satisfied by Aboobacker.\n\nI shall now examine his claim under the proviso to Art. 7.\n\nArticle 7* also begins with the words \"Notwithstanding anything in articles 5 and 6\", and deals with a person who has, after the !st day of March 1947, migrated from the territory of India to the territory now included in Pakistan. Aboobacker migrated from the territory of India to the territory now included in Pakistan after the !st day of March, 1947 and the'\n\narticle, therefore, applies to him. He can only claim the benefit of the proviso provided he returned to India under a permit for resettlement or permanent return issued to him, as provided. A person who returned to India as provided in the proviso was deemed to be treated as if he returned to India after the 19th day of July, 1948 and had to register himself. As Aboobacker went to Karachi after the !st day of March, 1947 he could only return to India inthe manner provided in the proviso, that is to say, under a permit for resettlement and he had to get himself registered on his return. Again, Aboobacker must fail on this claim as he did not get himself registered after his return to India.\n\n(b) (i) in the case where such person has so migrated bl!fore the ninetenth\n\nday of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or\n\n(ii) in the case where such person has so migrated on or after the nine ..\n\nttcnth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that lNchalf by the Government of the Dominion of India on an application made by him thereof to such officer before the commenc.:ment of this Constitution in the form and manner prescribed by that Government :\n\nProvided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately precding the date of his application.'' •\"7 Rights of citizenship of certain migrants to Pakistan.\n\nNotwithstanding anything in articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deem, d to be a citizen of India:\n\nProvided that nothing in this article shall apply to a person who -; H after l'aving so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under th<: authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to their territory of India after the nineteenth day of July, 1948\".\n\nMllSup. CI/66-14\n\nSUPREME\n\nCOURT\n\nREPORTS [I 96<i] 3 S.CR.\n\nIt will appear from this that three dates are important. The first is the 26th of January, 1950 on which day a person who had his domicile in the territory of India and satisfied one only of the three conditions in Art. 5 was deemed to be a citizen of India without anything more. The application of the other two articles depends on two dates. The first date is the 19th day of July, 1948 when a permit system was introduced. Persons who had not migrated to the territory of Pakistan but were in what is now Pakistan could return and claim citizenship under Art. 6. If they did so before the 19th day of July, 1948 and ordinarily resided in the territory of India from that time till January 26, 1950 they were to be citizens oflndia without anything more. If they migrated to India after the 19th day of July, 1948 they had to apply and get registered as citizens of India after residing for six months continuously in the territory of India.\n\nThe other date is the I st of March, 1947 which is crucial for persons who migrated after that date into the territory now in Pakistan. Such persons are not deemed to be citizens of India irrespective of whether they had, before their migration, domicile in the territory of India ,, nd whether they satisfied anyone of the three conditions in Art. 5. Since Aboobacker does not satisfy the conditions of Art. 5, 6 or the proviso to Art. 7 he cannot claim to be a citizen oflndia. He, however, contends that the word 'migrate' in Arts. 6 and 7 means migration with the intention of acquiring a domicile in Pakistan. I shall now examine this contention.\n\nThe word 'migrate' in this context cannot obviously mean mere going from one place to another. A lawyer in Amritsar who conducted a case in Lahore on the 2nd of March, 1947 could not be said to have migrated from India to the territory now in Pakistan.\n\nHis intention was not to change his place of abode. In the same way when persons fled the dangerous area because death and rapine were at their heels, they could not be said to have migrated to the territory now in Pakistan unless they were changing their abode.\n\nThe decisive consideration is whether in so migrating a person changed his abode, that is to say, he left the territory of India to go and acquire an abode in the territory which is now in Pakistan.\n\nJust as domicile is a question of fact and intention, migration is also a question of fact and intention.\n\nThe immediate requirement of intention in migration as used in the Constitution is that the person intended to change his abode from one part of India to another. If the part to which he went came to be incorporated in the territory of Pakistan he had to return in the manner prescribed in the proviso to Art. 7 or he would not be deemed to be a citizen of India.\n\nAboobacker left India in circumstances to which Art. 7 must dearly apply. That he was a minor makes no difference. The\n\nF •\n\nB ..\n\n---- ...\n\nKULATHIL MAMMU v. KERALA (Shah, J,) 719\n\nConstitution does not make a distinction between an adult and a minor. The intention of changing his abode from India to the territory now in Pakistan (whether he had it at the time or not) must be attributed to him because he returned to India several times and went back again under a Pakistani passport which clearly showed that he was intending to change his abode from India to Pakistan.\n\nHis subsequent action shows the intention and an election to change the abode which the word 'migrate' in Art. 7 of the Constitution obviously indicate. This was the view taken by Das Gupta J, in Shanno Devi's case and I think that the decision was correct.\n\nI would dismiss the appeal for the reasons I have set down above.\n\nShah, J, The principal question raised in this appeal relates to the true meaning of the expression \"migrated from the territory of India\" in Art. 7 of the Constitution, conflict of opinion in this Court.\n\nPart II of the Constitution deals with citizenship. By Art. 11 Parliament is given the power to make provision with respect to the acquisition and termination of citizenship, and by Art. 10 every person who is or is deemed to be a citizen of India under the provisions of Arts. 5 to 9 shall, subject to the provisions of any law that may be made by Parliament, continue to be a 'citizen of India. Articles 5, 6, 7 and 9 were intended to deal with citizenship at the commencement of the Constitution. Article 8 deals with acquisition of citizenship by registration of a person ordinarily residing in any country outside India, if he is either before or after the commencement of the Constitution been registered as a citizen ..\n\nBy Art. 5 of the Constitution every person who had his domicile in the territory of India [as defined in Art. 1(3)] and who was either born in territory of India, or either of whose parents was born in the territory of India, or who had been ordinarily resident in the territory of India for not less than five years im mediately preceding such commencement was to be a citizen of India. This is the basic rule conferring citizenship at the commencement of the Constitution upon every person who had his domicile in the territory of India and who satisfied one or more of the three conditions in Art. 5. But Art. 5 was not exhaustive of the conditions in which citizenship of India could be claimed at the commencement of the Constitution : persons who did not satisfy the requirements of Art. 5 could still be citizens. By Act. 6 a person who has migrated to the territory of India from the terri tory now included in Pakistan would be deemed to be a citizen of India at the commencement of the Constitution if he satisfied two conditions that (a) he or either of his parents or any of his grand-parents was born in India as defined in the Governement of India Act, 1935; and that (b) he had either migrated before\n\nSUPREME\n\nCOURT RBPOlt.TS\n\n\nJuly 19, 1948, and had ordinarily been resident in the territory\n\nof India since the date of his migration or where he had migrated after July 19, 1948, he had been registered as a citizen of India by an officer appointed in that behalf. A person who could not claim to be a citizen of India under Art. 5 could still be deemed to be a citizen of India if the conditions mentioned in cl. (a) and either of the conditions in cl. (b) of Art. 6 were satisfied. Article 7 engrafts an exception both upon Arts. 5 and 6.\n\nA person who would have been a citizen of India because he satisfied the conditions of Art. 5 or who would be deemed to be a citizen of India because he satisfied the requirements of Art. 6, would still not be deemed to be a citizen of India, if he had after the first day of March, 1947, migrated from the territory of India to the territory included in Pakistan, unless he had after having migrated to Pakistan returned to the territory of India under a permit for resettlement or permanent return.\n\nArticle 6 therefore confers citizenship upon a person in the conditions mentioned therein who would otherwise not be entitled to that status, under Art. 5, where as Art. 7 disables a person from claiming the status, notwithstanding that he otherwise complies with the requirements of Art. 5 or of Art. 6, if he has after the specified date migrated from the territory of India to the territory of Pakistan. Article 6 deals with migration into India which confers citizenship and Art. 7 deals with migration from India which disables a person from claiming citizenship of India at the commencement of the Constitution. The expression \"migrated\" cannot have different meanings in the two Articles.\n\nThe word \"migrate\" is used in more senses than one : it in some contexts means movement from one region or country to another implying intention to settle in a new land pennanently; it in other contexts means movement from one place to another without an intention to settle pennanently in that of the other place.\n\nIn ascertaining the meaning ofthe expression \"migrate\" in Arts. 6 and 7 the Court would have regard to the scope and object of the Constitutional pro' isions examined in the light of the events which were witnessed both before and after the birth of the dominions of India and Pakistan, resulting in a violent upheaval in which largescale exodus of population took place from across the boundaries which divided the dominions.\n\nAs pointed out by Mahajan, J., in Central Bank of India v. Ram Narain (1) : \"Minds of people affected by this partition and who were living in those parts were completely unhinged and unbalanced and there was hardly any occasion to form intentions requisite for acquiring domicile in one place or another.\n\nPeople vacillated and altered their programmes from day to\n\n(I) 11955! 1 S.C.R. 697, 705.\n\nKULATffiL MAMMU v. KERALA (Shah, J.) 721\n\nday as events happened. They went backward and forward; families were sent from one place to another for the sake of safety. Most of those displaced from West Pakistan had no permanent homes in India where they could go and take up abode. They overnight became refugees, living in camps in Pakistan or in India. No one, as a matter of fact, at the moment thought that when he was leaving Pakistan for India or vice versa that he was doing so for ever or that he was for ever abandoning the place of his ancestors.\n\nLater policies of the Pakistan Government that prevented people from going back to their homes cannot be taken into consideration in determining the intention of the people who migrated at the relevant moment.\" Another matter which must also be kept in mind is that Arts. 6 and 7 deal with the status at the commencement of the Constitution.\n\nTherefore migration into the territory of India which conferred the status of citizenship under Art. 6, and migration from India which disabled a person from claiming citizenship under Art. 7 must be complete before the date of the commencement of the Constitution.\n\nH therefore intention to settle permanently in the country in which a person has moved is a necessary component of migration, snch intention must have been formed before the commencemnt of the Constitution, and many persons who were compelled to move from their hearths and homes on account of a sense of insecurity resulting from riots and civil commotion still hoping that they would be going back to the abodes of their ancestors when the situation returned to normal, may not be deemed to have migrated at all.\n\nThis, in my judgment, would introduce an element of uncertainty in the determination of citizenship and involve great hardship to the migrants.\n\nTwo cases in which this Court was called upon to consider the meaning of \"migrate\" may be referred to. In Smt. Shanno Devi v. Mangat Sain(!) it was held by this Court that the expression \"migrated to the territory of India\" in Art. 6 of the Constitution means \"come to the territory of India with the intention of residing there permanently\". The dispute in that case arose in an election case. Mangal Sain who was born in 1927 of Indian parents in the territory which since August 15, 1947 had become part of Pakistan, moved in 1944 to Jullunder, and thereafter lived in the territory which is part of India, except for a short period when he went to Burma.\n\nIt was contended in an election dispute that Mangal Sain was not a citizen of India and therefore could not stand for election. That contention was rejected by this Court on the finding that the respondent Mangal Sain who had earlier moved from a place in Pakistan to Jullunder had definitely made up his mind to make India his permanent home and therefore he satisfied the first\n\n(1) [1961] l S.C.R. 576.\n\nSUPREME\n\nCOURT Rl!POll.TS\n\n\nrequirement of Art. 6 after migration to the territory of India from the territory now included in Pakistan and it heing established that MangaI Sain was born in India as defined in the Go\\'ernment of India Act, 1935, he satisfied the requirement of cl. (a) of Art. 6.\n\nThe Court in that cae regarded movement from one territory to another, with intention to reside permanently in the new territory as a necessary ingredient.\n\nBut in an earlier judgment of this Court in The Srarc of Bihar \\'.Kumar Amar Singh & Others( I), the question whether one Kumar Rani Sayecda Khatoon was, because of migration from the territory of India after March I, 1947, not to be deemed a citizen of India.\n\nKumar Rani who was born in the territory of India and had married Captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya in 1920 left for Karachi in July 1948 and returned to India in December 1948 on a temporary permit. She again left for Pakistan in April 1949 on the expiry of the permit. Her claim that she went to Pakistan temporarily for medical treatment was not accepted. After her property in India was taken over by the Custodian of Evacuee Property, she obtained a permit for permanent return and came to India in 1950.\n\nThis permit was later cancelled, and she was directed to leave India.\n\nIn a petition filed before the High Court of Patna it was declared that Kumar Rani was a citizen of India and the order directing her to leave India was set aside. This Court reversed the order of the High Court holding that since Kumar Rani had migrated from the territory of India to the territory of Pakistan, she had disqualified herself from claiming citizenship of India. The facts proved in Kumar Amar Singh's case(') disclose that there was no evidence tending to show that Kumar Rani had entertained at any time before the commencement of the Constitution an intention permanently to reside in Pakistan. Her husband was in India, her property was in India and she had gone to Pakistan for about eight months in the year 1948 and thereafter in April 1949. The Court in that case apparently did not accept the view that to attract Art. 7, migration from the territory of India must be with an intention permanently to reside in the territory now included in Pakistan.\n\nAs already observed migration which has a bearing on the acquisition of citizenship must be complete before the commencement of the Constitution. And if intention to take up permanent residence in one or the other Dominion, coupled with movement could alone justify, a claim for citizenship into which the migrant has moved, a large number of persons who migrated from the territory of Pakistan to India would find themselves without citizenship of India in the territory whereof on account of the compulsion of political events they had moved and had since then lived. ---··--- (I) (t955] t S.C.R. 1259.\n\nF -· '\n\nH •\n\n\nKULATHIL MAMMU v. KERALA (Shah, ],) 723\n\nA In my view \"migrated from the territory of India\" within the meaning of Art. 7 means moving from one place to another but not necessarily with the intention of permanently residing in the country in which the person has moved. I agree, however, that the movement should be voluntary and not purely temporary, such as movement for purposes of a business transaction or a professional B or a social visit. I agree that the appeal shall stand dismissed.\n\nAppeal dismissed_", "total_entities": 233, "entities": [{"text": "KULATHIL MAMMU", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "KULATHIL MAMMU", "offset_not_found": false}}, {"text": "THE STATE OF KERALA", "label": "RESPONDENT", "start_char": 16, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF KERALA", "offset_not_found": false}}, {"text": "March 2, 1966", "label": "DATE", "start_char": 37, "end_char": 50, "source": "ner", "metadata": {"in_sentence": "KULATHIL MAMMU\n\nTHE STATE OF KERALA\n\nMarch 2, 1966\n\n[P.B. GAJrnDRAGADKAR, C.J., K.N. WANCHOO, M. HIDAYATULLAll, J.C. SHAH, S.M. SIKRI\n\nAND V. RAMASWAMI, JJ.)"}}, {"text": "K.N. WANCHOO", "label": "JUDGE", "start_char": 80, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "C. 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"label": "PETITIONER", "start_char": 5027, "end_char": 5037, "source": "ner", "metadata": {"in_sentence": "Aboobacker on whose behalf the writ petition from which this appeal has arisen was filed in the High Court was born on March 5, 1936 in the district of Kozhikode of parents who were both Indian citizens.", "canonical_name": "Aboobacker"}}, {"text": "March 5, 1936", "label": "DATE", "start_char": 5146, "end_char": 5159, "source": "ner", "metadata": {"in_sentence": "Aboobacker on whose behalf the writ petition from which this appeal has arisen was filed in the High Court was born on March 5, 1936 in the district of Kozhikode of parents who were both Indian citizens."}}, {"text": "Aboobacker", "label": "PETITIONER", "start_char": 5232, "end_char": 5242, "source": "ner", "metadata": {"in_sentence": "Aboobacker left India sometime in 1948 and went to Karachi in Pakistan when he was a boy of 12 years of age.", "canonical_name": "Aboobacker"}}, {"text": "Karachi", "label": "GPE", "start_char": 5283, "end_char": 5290, "source": "ner", "metadata": {"in_sentence": "Aboobacker left India sometime in 1948 and went to Karachi in Pakistan when he was a boy of 12 years of age."}}, {"text": "March 10, 1954", "label": "DATE", "start_char": 5380, "end_char": 5394, "source": "ner", "metadata": {"in_sentence": "On March 10, 1954, he obtained a Pakistani passport and came to district Kozhikode in India on visa granted to him in September 1954."}}, {"text": "1, 1954", "label": "DATE", "start_char": 5524, "end_char": 5531, "source": "ner", "metadata": {"in_sentence": "On November 1, 1954, he again left for Pakistan."}}, {"text": "SUPllBllB COURT llBPOll'l'S\n\n[1966) 3 S.C.R.", "label": "COURT", "start_char": 5995, "end_char": 6039, "source": "ner", "metadata": {"in_sentence": "SUPllBllB COURT llBPOll'l'S\n\n[1966) 3 S.C.R.\n\nto the whereabouts of Aboobacker; but in October 1964 he was A found living in the district of Kozhikode and did not have any valid travel documents."}}, {"text": "Consequently he was arrested and a case under the Indian Passport Rules 1950", "label": "STATUTE", "start_char": 6191, "end_char": 6267, "source": "regex", "metadata": {}}, {"text": "November 5, 1964", "label": "DATE", "start_char": 6436, "end_char": 6452, "source": "ner", "metadata": {"in_sentence": "On this report the State Government passed on order on November 5, 1964 under the Foreigners Act (No."}}, {"text": "Foreigners Act", "label": "STATUTE", "start_char": 6463, "end_char": 6477, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "November 16, 1964", "label": "DATE", "start_char": 6622, "end_char": 6639, "source": "ner", "metadata": {"in_sentence": "On November 16, 1964, a writ petition was filed on behalf of Aboobacker by the appellant in the High Court, and the contention raised therein was that Aboobacker was an Indian citizen and therefore the order passed against him under the Foreigner's Act was c illegal."}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 7217, "end_char": 7223, "source": "regex", "metadata": {"linked_statute_text": "Consequently he was arrested and a case under the Indian Passport Rules 1950", "statute": "Consequently he was arrested and a case under the Indian Passport Rules 1950"}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 7421, "end_char": 7427, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 7942, "end_char": 7948, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 8113, "end_char": 8119, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 8637, "end_char": 8643, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 9240, "end_char": 9246, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": 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{"text": "Art. 6", "label": "PROVISION", "start_char": 13453, "end_char": 13459, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 13513, "end_char": 13519, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 13801, "end_char": 13807, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 13876, "end_char": 13882, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 6 and 7", "label": "PROVISION", "start_char": 14007, "end_char": 14023, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 14073, "end_char": 14079, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 14190, "end_char": 14196, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 14208, "end_char": 14214, "source": "regex", "metadata": {"statute": null}}, {"text": "Mahajan", "label": "JUDGE", "start_char": 14423, "end_char": 14430, "source": "ner", "metadata": {"in_sentence": "We may in this connection refer to the following observations of Mahajan, C.J. in Central Bank of India v. Ram Narain(') to show that the idea of domicile or permanent change of residence could not be a part of the meaning of the word \"migrated\" as used in Arts."}}, {"text": "Arts. 6 and 7", "label": "PROVISION", "start_char": 14615, "end_char": 14628, "source": "regex", "metadata": {"statute": null}}, {"text": "West Pakistan", "label": "GPE", "start_char": 15480, "end_char": 15493, "source": "ner", "metadata": {"in_sentence": "\"Most of those displaced from West Pakistan had no permanent homes in India where they could go and take up abode."}}, {"text": "Arts. 6 and 7", "label": "PROVISION", "start_char": 16102, "end_char": 16115, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 17717, "end_char": 17723, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 17884, "end_char": 17890, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 6", "label": "PROVISION", 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"regex", "metadata": {"statute": null}}, {"text": "Article 7", "label": "PROVISION", "start_char": 19181, "end_char": 19190, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 8", "label": "PROVISION", "start_char": 19283, "end_char": 19289, "source": "regex", "metadata": {"statute": null}}, {"text": "oflndia", "label": "GPE", "start_char": 19326, "end_char": 19333, "source": "ner", "metadata": {"in_sentence": "8 would deem a person to be a citizen oflndia if the conditions thereof were satisfied -all of course at the commencement of the Constitution."}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 19447, "end_char": 19453, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 5 and 6", "label": "PROVISION", "start_char": 19509, "end_char": 19525, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 19556, "end_char": 19562, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 19609, "end_char": 19615, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 19625, "end_char": 19631, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 19676, "end_char": 19682, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 19782, "end_char": 19788, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 6", "label": "PROVISION", "start_char": 19930, "end_char": 19939, "source": "regex", "metadata": {"statute": null}}, {"text": "19th day of July 1948", "label": "DATE", "start_char": 20084, "end_char": 20105, "source": "ner", "metadata": {"in_sentence": "b) (i) that such person should have migrated to India before the 19th day of July 1948 and should be ordinarily resident in the territory of India since the date of his migration."}}, {"text": "15th day of August 1947", "label": "DATE", "start_char": 20309, "end_char": 20332, "source": "ner", "metadata": {"in_sentence": "Now this provision will apply to all cases of migration before the 19th day of July 1948 and even before the 15th day of August 1947 when India and Pakistan came into existence."}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 20643, "end_char": 20649, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 20833, "end_char": 20839, "source": "regex", "metadata": {"statute": null}}, {"text": "March 1, 1947", "label": "DATE", "start_char": 20990, "end_char": 21003, "source": "ner", "metadata": {"in_sentence": "713\n\nof India to the territory of Pakistan after March 1, 1947."}}, {"text": "August 15, 1947", "label": "DATE", "start_char": 21074, "end_char": 21089, "source": "ner", "metadata": {"in_sentence": "Take the case where a person migrated after March 1, 1947 but before August 15, 1947, when India and Pakistan came into existence."}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 21622, "end_char": 21628, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 21632, "end_char": 21638, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 21763, "end_char": 21769, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 21774, "end_char": 21780, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 7", "label": "PROVISION", "start_char": 22672, "end_char": 22678, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 22906, "end_char": 22912, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 6 and 7", "label": "PROVISION", "start_char": 22964, "end_char": 22980, "source": "regex", "metadata": {"statute": null}}, {"text": "March l, 1947", "label": "DATE", "start_char": 23450, "end_char": 23463, "source": "ner", "metadata": {"in_sentence": "It was held that she had migrated from India to Pakistan after March l, 1947 and even if Art."}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 23476, "end_char": 23482, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 23599, "end_char": 23605, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 23648, "end_char": 23654, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 23777, "end_char": 23783, "source": "regex", "metadata": {"statute": null}}, {"text": "[1955] 1 S.C.R. 1259", "label": "CASE_CITATION", "start_char": 23938, "end_char": 23958, "source": "regex", "metadata": {}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 24152, "end_char": 24158, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 6 and 7", "label": "PROVISION", "start_char": 24226, "end_char": 24239, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 9", "label": "PROVISION", "start_char": 24473, "end_char": 24479, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 5", "label": "PROVISION", "start_char": 24645, "end_char": 24654, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 6", "label": "PROVISION", "start_char": 24707, "end_char": 24716, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 8", "label": "PROVISION", "start_char": 24720, "end_char": 24729, "source": "regex", "metadata": {"statute": null}}, {"text": "January 26, 1950", "label": "DATE", "start_char": 25274, "end_char": 25290, "source": "ner", "metadata": {"in_sentence": "By oversight however in Abdul Sattar Haji Ibrahim Patel v. State of Gujarat(') it has been stated that cases in which migration had taken place after January 26, 1950 fall to be considered under Art."}}, {"text": "Art. 9", "label": "PROVISION", "start_char": 25319, "end_char": 25325, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 9", "label": "PROVISION", "start_char": 25347, "end_char": 25356, "source": "regex", "metadata": {"statute": null}}, {"text": "Peer Mohd", "label": "OTHER_PERSON", "start_char": 25529, "end_char": 25538, "source": "ner", "metadata": {"in_sentence": "Article 9 does not use the word \"migration\" and deals only with voluntary acquisition of citizenship of a foreign State before the Constitution came into force as already decided in Peer Mohd."}}, {"text": "Art. 9", "label": "PROVISION", "start_char": 25587, "end_char": 25593, "source": "regex", "metadata": {"statute": null}}, {"text": "Abdul\n\nSattar", "label": "OTHER_PERSON", "start_char": 25636, "end_char": 25649, "source": "ner", "metadata": {"in_sentence": "9 to correct the slip which has occurred in Abdul\n\nSattar' s case(')."}}, {"text": "Government of India", "label": "ORG", "start_char": 25789, "end_char": 25808, "source": "ner", "metadata": {"in_sentence": "Cases of voluntary acquisition of foreign citizenship after the commencement of the Constitution have to be dealt with by the Government of India under the Citizenship Act, 1955."}}, {"text": "Citizenship Act, 1955", "label": "STATUTE", "start_char": 25819, "end_char": 25840, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "March I, 1947", "label": "DATE", "start_char": 25979, "end_char": 25992, "source": "ner", "metadata": {"in_sentence": "Coming now to the facts of the present case it is obvious that Aboobacker went voluntarily to the territory of Pakistan some time after March I, 1947."}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 26195, "end_char": 26201, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 26668, "end_char": 26674, "source": "regex", "metadata": {"statute": null}}, {"text": "Aboobackcr", "label": "PETITIONER", "start_char": 26742, "end_char": 26752, "source": "ner", "metadata": {"in_sentence": "7, it is unnecessary to consider the other point raised on behalf of Aboobackcr, namely, that a minor can never have the\n\n(I) (196111 S.C.R. 576: A.1.R. 1961 S.C. 58.", "canonical_name": "Aboobacker"}}, {"text": "Arts. 6 and 7", "label": "PROVISION", "start_char": 27316, "end_char": 27329, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 6 and 7", "label": "PROVISION", "start_char": 28073, "end_char": 28086, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 28183, "end_char": 28189, "source": "regex", "metadata": {"statute": null}}, {"text": "Shanno", "label": "OTHER_PERSON", "start_char": 28391, "end_char": 28397, "source": "ner", "metadata": {"in_sentence": "Shanno Devi v .", "canonical_name": "Shanno Devi"}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 29164, "end_char": 29171, "source": "ner", "metadata": {"in_sentence": "My learned brother Wanchoo has held that the word 'migrate' means no more than to go from one place to another and that the element of an intention to acquire a domicile is not necessary.", "canonical_name": "WANCHOO"}}, {"text": "(1961] 1 S.C.R. 576", "label": "CASE_CITATION", "start_char": 29817, "end_char": 29836, "source": "regex", "metadata": {}}, {"text": "Articles 5", "label": "PROVISION", "start_char": 29885, "end_char": 29895, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 30719, "end_char": 30725, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 6 and 7", "label": "PROVISION", "start_char": 31273, "end_char": 31286, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 6", "label": "PROVISION", "start_char": 31354, "end_char": 31363, "source": "regex", "metadata": {"statute": null}}, {"text": "article 5", "label": "PROVISION", "start_char": 31416, "end_char": 31425, "source": "regex", "metadata": {"statute": null}}, {"text": "article 5", "label": "PROVISION", "start_char": 32472, "end_char": 32481, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act", "label": "STATUTE", "start_char": 32763, "end_char": 32786, "source": "regex", "metadata": {}}, {"text": "article 6", "label": "PROVISION", "start_char": 33110, "end_char": 33119, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act", "statute": "Government of India Act"}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 33125, "end_char": 33131, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act", "statute": "Government of India Act"}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 33176, "end_char": 33182, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act", "statute": "Government of India Act"}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 33365, "end_char": 33371, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act", "statute": "Government of India Act"}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 33475, "end_char": 33481, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act", "statute": "Government of India Act"}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 33567, "end_char": 33573, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act", "statute": "Government of India Act"}}, {"text": "Article 7", "label": "PROVISION", "start_char": 33576, "end_char": 33585, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act", "statute": "Government of India Act"}}, {"text": "articles 5 and 6", "label": "PROVISION", "start_char": 33643, "end_char": 33659, "source": "regex", "metadata": {"linked_statute_text": "Government of India Act", "statute": "Government of India Act"}}, {"text": "19th day of July, 1948", "label": "DATE", "start_char": 34252, "end_char": 34274, "source": "ner", "metadata": {"in_sentence": "A person who returned to India as provided in the proviso was deemed to be treated as if he returned to India after the 19th day of July, 1948 and had to register himself."}}, {"text": "Government of the Dominion of India", "label": "ORG", "start_char": 35027, "end_char": 35062, "source": "ner", "metadata": {"in_sentence": "(b) (i) in the case where such person has so migrated bl!fore the ninetenth\n\nday of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or\n\n(ii) in the case where such person has so migrated on or after the nine ..\n\nttcnth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that lNchalf by the Government of the Dominion of India on an application made by him thereof to such officer before the commenc.:ment of this Constitution in the form and manner prescribed by that Government :\n\nProvided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately precding the date of his application.''"}}, {"text": "articles 5 and 6", "label": "PROVISION", "start_char": 35484, "end_char": 35500, "source": "regex", "metadata": {"statute": null}}, {"text": "article 6", "label": "PROVISION", "start_char": 36020, "end_char": 36029, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 36402, "end_char": 36408, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 36746, "end_char": 36752, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 37477, "end_char": 37483, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5, 6", "label": "PROVISION", "start_char": 37537, "end_char": 37546, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 37565, "end_char": 37571, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 6 and 7", "label": "PROVISION", "start_char": 37662, "end_char": 37675, "source": "regex", "metadata": {"statute": null}}, {"text": "Amritsar", "label": "GPE", "start_char": 37893, "end_char": 37901, "source": "ner", "metadata": {"in_sentence": "A lawyer in Amritsar who conducted a case in Lahore on the 2nd of March, 1947 could not be said to have migrated from India to the territory now in Pakistan."}}, {"text": "Lahore", "label": "GPE", "start_char": 37926, "end_char": 37932, "source": "ner", "metadata": {"in_sentence": "A lawyer in Amritsar who conducted a case in Lahore on the 2nd of March, 1947 could not be said to have migrated from India to the territory now in Pakistan."}}, {"text": "2nd of March, 1947", "label": "DATE", "start_char": 37940, "end_char": 37958, "source": "ner", "metadata": {"in_sentence": "A lawyer in Amritsar who conducted a case in Lahore on the 2nd of March, 1947 could not be said to have migrated from India to the territory now in Pakistan."}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 38916, "end_char": 38922, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 39024, "end_char": 39030, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 39658, "end_char": 39664, "source": "regex", "metadata": {"statute": null}}, {"text": "Das Gupta", "label": "JUDGE", "start_char": 39732, "end_char": 39741, "source": "ner", "metadata": {"in_sentence": "This was the view taken by Das Gupta J, in Shanno Devi's case and I think that the decision was correct."}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 40020, "end_char": 40026, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 11", "label": "PROVISION", "start_char": 40139, "end_char": 40146, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 40147, "end_char": 40157, "source": "ner", "metadata": {"in_sentence": "11 Parliament is given the power to make provision with respect to the acquisition and termination of citizenship, and by Art."}}, {"text": "Art. 10", "label": "PROVISION", "start_char": 40266, "end_char": 40273, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 5 to 9", "label": "PROVISION", "start_char": 40356, "end_char": 40368, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 5, 6, 7 and 9", "label": "PROVISION", "start_char": 40481, "end_char": 40503, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 8", "label": "PROVISION", "start_char": 40584, "end_char": 40593, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 40815, "end_char": 40821, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 1(3)", "label": "PROVISION", "start_char": 40917, "end_char": 40926, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 41408, "end_char": 41414, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 41420, "end_char": 41426, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 41601, "end_char": 41607, "source": "regex", "metadata": {"statute": null}}, {"text": "India as defined in the Governement of India Act, 1935", "label": "STATUTE", "start_char": 41929, "end_char": 41983, "source": "regex", "metadata": {}}, {"text": "July 19, 1948", "label": "DATE", "start_char": 42194, "end_char": 42207, "source": "ner", "metadata": {"in_sentence": "TS\n\nJuly 19, 1948, and had ordinarily been resident in the territory\n\nof India since the date of his migration or where he had migrated after July 19, 1948, he had been registered as a citizen of India by an officer appointed in that behalf."}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 42354, "end_char": 42360, "source": "regex", "metadata": {"linked_statute_text": "India as defined in the Governement of India Act, 1935", "statute": "India as defined in the Governement of India Act, 1935"}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 42490, "end_char": 42496, "source": "regex", "metadata": {"linked_statute_text": "India as defined in the Governement of India Act, 1935", "statute": "India as defined in the Governement of India Act, 1935"}}, {"text": "Article 7", "label": "PROVISION", "start_char": 42513, "end_char": 42522, "source": "regex", "metadata": {"linked_statute_text": "India as defined in the Governement of India Act, 1935", "statute": "India as defined in the Governement of India Act, 1935"}}, {"text": "Arts. 5 and 6", "label": "PROVISION", "start_char": 42555, "end_char": 42568, "source": "regex", "metadata": {"linked_statute_text": "India as defined in the Governement of India Act, 1935", "statute": "India as defined in the Governement of India Act, 1935"}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 42658, "end_char": 42664, "source": "regex", "metadata": {"linked_statute_text": "India as defined in the Governement of India Act, 1935", "statute": "India as defined in the Governement of India Act, 1935"}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 42754, "end_char": 42760, "source": "regex", "metadata": {"linked_statute_text": "India as defined in the Governement of India Act, 1935", "statute": "India as defined in the Governement of India Act, 1935"}}, {"text": "Article 6", "label": "PROVISION", "start_char": 43073, "end_char": 43082, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 43221, "end_char": 43227, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 43238, "end_char": 43244, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 5", "label": "PROVISION", "start_char": 43357, "end_char": 43363, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 43370, "end_char": 43376, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 6", "label": "PROVISION", "start_char": 43480, "end_char": 43489, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 43552, "end_char": 43558, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 6 and 7", "label": "PROVISION", "start_char": 44144, "end_char": 44157, "source": "regex", "metadata": {"statute": null}}, {"text": "Pakistan Government", "label": "ORG", "start_char": 45491, "end_char": 45510, "source": "ner", "metadata": {"in_sentence": "Later policies of the Pakistan Government that prevented people from going back to their homes cannot be taken into consideration in determining the intention of the people who migrated at the relevant moment.\""}}, {"text": "Arts. 6 and 7", "label": "PROVISION", "start_char": 45735, "end_char": 45748, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 45908, "end_char": 45914, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 45997, "end_char": 46003, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 46967, "end_char": 46973, "source": "regex", "metadata": {"statute": null}}, {"text": "Mangal Sain", "label": "RESPONDENT", "start_char": 47135, "end_char": 47146, "source": "ner", "metadata": {"in_sentence": "Mangal Sain who was born in 1927 of Indian parents in the territory which since August 15, 1947 had become part of Pakistan, moved in 1944 to Jullunder, and thereafter lived in the territory which is part of India, except for a short period when he went to Burma.", "canonical_name": "Mangal Sain"}}, {"text": "Jullunder", "label": "GPE", "start_char": 47277, "end_char": 47286, "source": "ner", "metadata": {"in_sentence": "Mangal Sain who was born in 1927 of Indian parents in the territory which since August 15, 1947 had become part of Pakistan, moved in 1944 to Jullunder, and thereafter lived in the territory which is part of India, except for a short period when he went to Burma."}}, {"text": "Burma", "label": "GPE", "start_char": 47392, "end_char": 47397, "source": "ner", "metadata": {"in_sentence": "Mangal Sain who was born in 1927 of Indian parents in the territory which since August 15, 1947 had become part of Pakistan, moved in 1944 to Jullunder, and thereafter lived in the territory which is part of India, except for a short period when he went to Burma."}}, {"text": "Mangal Sain", "label": "RESPONDENT", "start_char": 47606, "end_char": 47617, "source": "ner", "metadata": {"in_sentence": "That contention was rejected by this Court on the finding that the respondent Mangal Sain who had earlier moved from a place in Pakistan to Jullunder had definitely made up his mind to make India his permanent home and therefore he satisfied the first\n\n(1) [1961] l S.C.R. 576.", "canonical_name": "Mangal Sain"}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 47850, "end_char": 47856, "source": "regex", "metadata": {"statute": null}}, {"text": "MangaI Sain", "label": "RESPONDENT", "start_char": 47973, "end_char": 47984, "source": "ner", "metadata": {"in_sentence": "6 after migration to the territory of India from the territory now included in Pakistan and it heing established that MangaI Sain was born in India as defined in the Go\\'ernment of India Act, 1935, he satisfied the requirement of cl. (", "canonical_name": "Mangal Sain"}}, {"text": "India Act, 1935", "label": "STATUTE", "start_char": 48036, "end_char": 48051, "source": "regex", "metadata": {}}, {"text": "Art. 6", "label": "PROVISION", "start_char": 48096, "end_char": 48102, "source": "regex", "metadata": {"linked_statute_text": "India Act, 1935", "statute": "India Act, 1935"}}, {"text": "Srarc of Bihar", "label": "ORG", "start_char": 48310, "end_char": 48324, "source": "ner", "metadata": {"in_sentence": "But in an earlier judgment of this Court in The Srarc of Bihar \\'."}}, {"text": "Kumar Amar Singh", "label": "OTHER_PERSON", "start_char": 48328, "end_char": 48344, "source": "ner", "metadata": {"in_sentence": "Kumar Amar Singh & Others( I), the question whether one Kumar Rani Sayecda Khatoon was, because of migration from the territory of India after March I, 1947, not to be deemed a citizen of India."}}, {"text": "Kumar Rani Sayecda Khatoon", "label": "OTHER_PERSON", "start_char": 48384, "end_char": 48410, "source": "ner", "metadata": {"in_sentence": "Kumar Amar Singh & Others( I), the question whether one Kumar Rani Sayecda Khatoon was, because of migration from the territory of India after March I, 1947, not to be deemed a citizen of India."}}, {"text": "Kumar Rani", "label": "OTHER_PERSON", "start_char": 48524, "end_char": 48534, "source": "ner", "metadata": {"in_sentence": "Kumar Rani who was born in the territory of India and had married Captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya in 1920 left for Karachi in July 1948 and returned to India in December 1948 on a temporary permit."}}, {"text": "Maharaj Kumar Gopal Saran Narayan Singh", "label": "OTHER_PERSON", "start_char": 48598, "end_char": 48637, "source": "ner", "metadata": {"in_sentence": "Kumar Rani who was born in the territory of India and had married Captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya in 1920 left for Karachi in July 1948 and returned to India in December 1948 on a temporary permit."}}, {"text": "Gaya", "label": "GPE", "start_char": 48641, "end_char": 48645, "source": "ner", "metadata": {"in_sentence": "Kumar Rani who was born in the territory of India and had married Captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya in 1920 left for Karachi in July 1948 and returned to India in December 1948 on a temporary permit."}}, {"text": "High Court of Patna", "label": "COURT", "start_char": 49159, "end_char": 49178, "source": "ner", "metadata": {"in_sentence": "In a petition filed before the High Court of Patna it was declared that Kumar Rani was a citizen of India and the order directing her to leave India was set aside."}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 49966, "end_char": 49972, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 7", "label": "PROVISION", "start_char": 50839, "end_char": 50845, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_724_735_EN", "year": 1966, "text": "COCHIN DEV ASWOM BOARD, TRICHUR\n\nYAMANA SHETTY AND ORS.\n\nMarch 2, 1966\n\n[P. B. GAJ~NDRAGADKAR, C.J., K. N. WANCHOO, M.\n\nHIDAYATULLAH, J.C. SHAH ANDS. M. SIKRI, JJ.]\n\nThe Trava11core-Cochin Kanam Tenancy Act (24 o/ 1955)-I/ applies to Devaswo1ns.\n\nConstitution o/ India. 1950, Art. 14-Act applicable only to CocliirJ area of the Kera/a State-If Act. ultra vire>.\n\nIn 1910. the Ruler of Cochin issued a Proclamation publishing Ruic. to secure the better administration of Devaswoms.\n\nClause 9 of the Proclamation authorised the Diwan of the State to make Rules 10 carry out the main object and scheme of the Proclamation.\n\nIn exerci9C of the authority conferred upon him. tho Diwan publ.shed rules on March 21.\n\n1910 regulating the procedure in the matter of collection Paartam, Mlchovaram, rcoewal fee and other dues payable to Devaswoms.\n\nThese Rules applied to all tenants-<>nlinary as well as Ka11am. In 1955, the\n\nLegislature of the Part B State of Travancore C<>chin enacted the Travan- COl'O-Cocbin Kanam Tenancy Act conferring full proprietary right.I oo Kanam tenanl\\ in the Cochin area of the State, subject only to the payment of Janimikaram .., a result of which, the .KanamAenant wao; declared proprietor of the land and the right of the J.emni was only to receive rhe Janniikaram.\n\nAfter the enactment of the Act, the Cochin Dcvaswom Board c1aimed to recover n1icliavaram from the Kanam tenants at the r.it~ settled under the Rule; made under the Proclamation of 1910.\n\nThe Kanamtenant..; petitioned the Hih C.ourt for an appropriate writ qu.., hing the notices of demand issued by the Board. and the High Court allowed the petition. and directed the Board not to proceed to enforce the notices.\n\nIn appeal to this Court. it waa contended that; (i) the Act applied only to land held under a contract of tenancv and not to Devaswom lands in respect of which the mi.schavaram and rencv•al fee \\\\ere governed by Rules framed under the Proclamation\n\n(ii) the Act v.'a~ discriminatory and void.\n\nHELD : (i) The Tnl\\ancoro-Cochin Kanom l'enancy Act goverm lands held from Deva.nvonzs in the Cochin region of the State Kerala.\n\nThe Scheme of the Rules published by the Diwan under the Proclamation was lh3t an offer of Pattah on the terms c:,.pecifie<l in a rough draft\n\nwas to he made to the tenant and after the terms were settled a final Pattah wao; to h: given :ind the Kanamtenanl had to execute a K\\'cliit\n\n(undertaking) in favour of the State.\n\nThouh the quantum of ,\\firh1Jva. ,_ and the renewal fee was determined by the Rules under the proclamation the terms of the Pattah and Kychir evidenced the contract which determined the rights of rhe Kanam tenant and the Devasao1n.\n\nThere fore. the definitions of 'holding', 'miclzavara1n'. 'Kana.?1', 'Renewal fee' and 'lanmikaratn' in s. 2 of the Act applied !o all lando; held hv K\"'nam tenants whether they \\vere Dtva.nvom or non.Devasom.\n\nFurther, though the Rulec; under the Procl:imation are not cnrelv repe:1led hv tli~ Act. the Act mu't be deemed ro have partially super.<eded the Proclamar'on and the Rule. in so far as the latter related to the rights and oblia•ions of the Kanam.tenant! in the three religions, the Act is not discriminatory.\n\nBoard. [732 D-D; 733 A-BJ\n\nII •\n\n\"\"--·\n\n(ii) The Act does not infringe tho guarantee of equal protection of the laws in Art. 14 of the Constitution.\n\nThough the Act only applies to the Cochin area of the State of Kerala which consists of the three regions of Travancore, Cochin and Malabar, since there is a difference between the relations governing the Jenmies and the Kanam-tenants in the three religions, the Act is not discriminatory.\n\n[734 C-E) B CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 11-18 of\n\n1964.\n\nAppeals from the judgmeut aud orders dated November 7, IS, 1960 of the Kerala High Court in Original Petitions Nos. 269, 284, 129, 250, 285 and 265 of 1957, and 102 and 269 of 1958 respectively.\n\nM. K. Nambyar, P. K. Krishnan Kutty Menon, B. Dutta, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant.\n\nNiren De, Additional Solicitor-General, A. G.\n\nPudissery and M. R. K. Pillai, for the respondent the State of Kerala (In C. As.\n\nNos. 17 and 18 of 1964).\n\nThe Judgment of the Court was delivered by\n\nShah, J. Two questions fall to be determined in these appeals: (!) Whether the Travancore-Cochin Kanam Tenancy Act 24 of 1955 governs lands held from Devaswoms (religious institutions) in the Cochin region of the State of Kerala; and\n\n(2) Whether the Act infringes the guarantee of equal protection of the laws and is on that account void?\n\nKanam tenure has a feudal origin. Broadly stated it is a customary transfer which partakes of the character of a mortgage and of a lease: it cannot be redeemed before a fixed number of years-normally twelve-and the (Kanamdar) mortgagee-lessee is entitled on redemption to compensation for improvements. The annual payments to the (Jenmi) mortgagor-lessor are regulated by what remains of the fixed share of the produce after deducting interest. If the land is not redeemed on the expiry of 12 years, a renewal fee becomes payable to the jenmi. The Cochin State Manual contains the following description of the kanam tenure in the Cochin region:\n\n\"The Verumpattam (simple lease) becomes a kanam lease when the janmi (landholder) acknowledges liability to pay a lump sum to the tenant on the redemption of his lease. In the old days his liability was created in most cases as a reward to the tenant for military or other services rendered by him, but in more recent times, kanam encumbrances were generally created by the janmi borrowing money from his tenant to meet any extraordinary\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1966] 3 S.C.R.\n\nexpenditure by the conversion of the compensation payable to Kuzhikanam (lessee who had a right to make improvements) holders into a kanam debt, or by the treatment of the amount deposited by the tenant for the punctual payment of rent and husband-like cultivation as a charge on the land. In kanam leases the net produce, after deducting the cost of seed and cultivation, is shared equally between the landlord and the tenant, and from the share of the former the tenant is entitled to deduct interest on the kanam amount at five per cent. The overplus, that is payable to the janmi after making these deductions, is known as michavaram. The kanamdar is entitled to the undisturbed enjoyment of the land for twelve years, but formerly it was for the life time of the demisor. At the end of this period, the lease may be terminated by the janmi paying the kanam amount and the value of the improvements effected by the tenant, or it may be renewed on the latter paying a premium or renewal fee to the landlord.\"\n\nAfter the expulsion in 1762 of the Zamorin of Calicut who had invaded Cochin, the Ruler of Cochin divested the chieftains who had supported the invader of their administrative powers and confiscated their properties and the Devaswoms under their management.\n\nManagers of the major Devaswoms who had welcomed the invader were also deprived of their powers, and administration of a large majority of Devaswoms was assumed by the State. Some minor Devaswoms were later taken over by the State, because of incompetent or dishonest management, and a scheme was devised by the State for maintenance of accounts of the Devaswom properties and for administration of the affairs of the Devaswoms according to the existing usage. The Devaswoms, revenues and expenditure whereof were thus completely merged in the general revenues, were called 'Incorporated' Devaswoms. Some time after the incorporation of these Devaswoms, management of two wellknown endowed temples was surrendered to the Ruler, but administration of these Devaswoms was not amalgamated with the \"Incorporated\" Devaswoms and their expenditure continued to be met from the receipts from the temples.\n\nLater the State assumed management of some more Devaswoms and treated them in the same manner as the two major temples. These institutions which were later acquired were treated as independent of each other as well as of the \"Incorporated\" Devaswoms and were called \"Unincorporated\" Devaswoms.\n\nOn February 11, 1910, the Ruler of Cochin issued a Proclamation publishing rules to secure better administration of the Incorporated and Unincorporated Devaswoms. The rules provided that the endowments attached to and the income derived from\n\nI D r\n\nthe Devaswoms, whether \"Incorporated\" or Unincorporated\", shall' be constituted into a Common Trust for all administrative purposes, that accounts shall be maintained as directed and that the surplus after defraying the expenses shall be appropriated in the manner prescribed. By cl. 9 the Diwan of the State was given authority to frame rules for carrying out the main object and the scheme of the Proclamation, and the rules so framed were to have the same force and validity as the Proclamation, and were to regulate the renewals, prescribe the mode of collection of rents as well as rates of rents payable by tenants, and to provide for such other matters as may be necessary for securing efficiency and uniformity in the administration of the landed properties belonging to all Devaswoms.\n\nThe Diwan of Cochin promulgated on March 21, 1910, rules regulating procedure in the matter of collecting Paattam, Michavaram, renewal fee and other dues payable to Devaswoms and other religious institutions. The rules provided for maintenance of public registers in respect of landed properties, payment of rent due by the tenants to the Devaswom Officer and prescribed methods for recovery of arrears by sequestration of property either temporarily or permanently. These rules applied to all tenants-ordinary and kanam.\n\nOn November 8, 1910, some more rules were published by the Diwan. These rules were designed to regulate the principles and procedure to be observed in fixing the rates of rents, renewal of holdings and for securing efficiency and uniformity in the administration of landed properties of all the Devaswoms. By cl. 5 the principles to be followed in the classification of lands and for fixing rents were prescribed. It was directed by cl. 8 that the lands shall be carefully examined and classified with reference to soil, situation, productiveness, drainage and irrigation facilities and other relevant considerations. By cl. 13 all Devaswom lands held under kanam, and other tenures of a cognate nature were to be charged full rent fixed in accordance with the provisions of Part II of the Rules, but from the full rent so charged, deductions were to be made on account of interest on kanam etc.\n\nBy cl. 16 it was provided that holdings of land under kanam and other tenures were subject to renewal periodically once in fifteen years, at each of which occasion the tenant was liable to pay renewal fee calculated at the customary rates prevailing in each Devaswom.\n\nOn July 12, 1911, supplementary rules were published to regulate the administration of lands belonging to Devaswoms and for maintenance of accounts connected therewith. By cl. 3 rights and obligations under a Pattah to be issued by the Devaswom were prescribed and these obligations under the Pattah were to be embodied in a kychit (undertaking) which each Devaswom tenant receiv-- ing a Pattah had to execute.\n\n728 •\n\nSUPREME\n\nCOURT\n\nREPORTS [1966] 3 S.Cl.R.\n\nOn October 24, 1914, the Maharaja of Cochin Promulgated the Cochin Tenancy Act II of 1090 M. E. (1914 A.D.).\n\nThe expression \"Kanam tenant\" was defined by s. 2 (c) as meaning a tenant who holds lands on payment of consideration in money or in kind or partly in money and partly in kind to the landlord for his holding, and on a demise made or renewed by a landlord on a tenure that is subject to renewal after a fixed period on payment of a renewal fee. \"Michavaram\" was defined in s. 2 (g) as \"whatever is agreed to be paid to a landlord by a kanam tenant after deducting from the paal/om the interest due on the kan:cm.\" Provision was made in Ch. III for renewals of kanam holdings and ejectment of kanam tenants and for other incidental matters.\n\nOn May 29, 1949 the Rulers of Travancore and Cochin States entered into a covenant for the formation of the United State of Travancore-Cochin. On January 26, 1950 the State of Travancore- Cochin became a Part 'B' State within the Union of India. By s. 62 of Act 15 of 1950 effect was given to Art. 8-D of the covenant and it was provided that the administration of \"Incorporated\" and \"Unincorporated\" Devaswoms and Hindu religious institutiolli which were under the management of the Ruler of Cochin immediately prior to the first day of July, 1949, and all their propertie5 and funds and the estates and all institutions under the management of the Devaswom Department of Cochin, shall vest in the Cochin Devaswom Board.\n\nBy s. 113 (2) the provisions of the Devaswom Proclamation dated February II, 1910 and the rule1> framed thereunder in respect of the procedure to be adopted and the mode of recovery of pattom, micliavaram, renewal fees and other dues were, it was declared, to apply mlllatis mutandis to the procedure and mode of recovery of paa11om, michavaram renewal fee.; and other dues relating to \"Incorporated\" and \"Unincorporated\" Devaswoms.\n\nThe Legislature of the State of Travancore-Cochin enacted Act 24 of 1955 called the Travancore-Cochin Kanam Tenancy Act 24 of 1955 with the object of conferring full proprietary rights on kanam tenants in the Cochin area subject only to the payment\n\nof janmikaram and to provide for the settlement, collection and payment of jamnikaram and for matters incidental thereto.\n\nBy G s. 3 ( 1) of the Act it was provided :\n\n\"From and after the commencement of this Act, the Jenmi shall not have any right, claim or interest in an) land in a holding except the right to receive the jenmikaram thereon and the kanam-tenant shall be deemed to be the owner of the land subject only to the payment of H the jenmikaram.\n\nExplanation (I).\n\nExplanation (2).\n\nExplanation (3).\n\nThe jenmi's right as well as the kanam tenant's right were declared heritable and transferable by sale, gift or otherwise. By s. 5, jenmikaram was made a first charge on land. Under the customary kanam-tenure the jenmi was either a lessor or a mortgagor having rights of ownership in the land, but by Act 24 of 1955 the relationship was fundamentally altered; subject to payment of jenmikaram the kanam-tenant was declared a proprietor of the land and the right of the jenmi was only to receive the jenmikaram.\n\nAfter the enactment of Act 24 of 1955 the Cochin Devaswom Board (which was constituted under s. 62 of the Travancore-Cochin Hindu Religious Institutions Act 15 of 1950) claimed to recover Michavaram at the rates settled under the rules made in exercise of the power conferred by cl. 9 of the Proclamation of 1910. The kanam-tenants thereupon petitioned the High Court of Kerala for a writ of certiorari, prohibition or other writ quashing the notices of demand issued by the Board and all proceedings taken by the Assistant Devaswom Commissioner. It was claimed by the kanamtenants that on expressing their readiness to pay jenmikaram settled under the rules framed under Act 24 of 1955, they were entitled to hold the lands in their occupation as proprietors and the Board could not demand any amount in excess of the jenmikaram. The Board presented in their turn two petitions praying for the issue of writs of certiorari or other appropriate writ quashing notices issued by the Jenmikaram Settlement Officers under the provisions of the Kanam Tenancy Act 24 of 1955 in respect of the lands owned by \"Unincorporated\" Devaswoms and for a writ of prohibilio11 against those Officers from enforcing the provisions of Act 24 of 1955 and the rules framed thereunder. The Board claimed that the provisions of Act 24 of 1955 did not apply to land held by its ka1tam tenants, and that in any event the proceedings taken by the Jenmikaram Settlement Officer for settlement of the jenmikaram payable by its kanam-tenants and the rules framed thereunder \"were illegal and ultra vires of their powers.\"\n\nThe High Court of Kerala held that by the enactment of Act 24 of 1955, the Board's fundamental rights under Art. 31(2) or under Art. 14 of the Constitution were not infringed, and that the Board could not demand payment of Michavaram as regulated by the Proclamation of 1910, because the provisions settling the Michavaram under the Proclamation were superseded by Act 24 of 1955. The High Court accordingly rejected the petitions filed by the Board and directed the Board in the petitions filed by the tenants \"not to proceed further under the notices issued\" against the kanam-tenants.\n\ni30\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1966] 3 SC R\n\nThe two questions raised in the appeals may now be consider- -ed. Counsel for the appellants says that whereas under the Proclamation of 1910 and the rules framed thereunder there is a statutory fixation of Miclzavaram and the renewal fee in respect of the lands held by kanam-tenants belonging to the Devaswoms which later came to be vested in the Board, Act 24 of 1955 only applies to kanam-tenants holding lands under contracts with jenmis. The relation between the je11mi and the kanam-tenant in respect of lands Dcvaswom \"Incorporated\" or \"Unincorporated\" is, it is urged, governed by the tenns of the Proclamation and the rules framed thereunder relating to fixation of Miclzavaram and renewal fee, whereas Act 24 of 1955 deals with liability to pay jenmikaram in respect of land held under an engagement by a kanam-tenant with a jenmi. In support of this contention, reliance is placed primarily upon the definitions in s. 2 of the Act of \"Jenmikaram\", \"Jenml\", \"Renewal fee\" \"Holding\", \"Kanam\" and \"Michavaram. 1bc expression \"Jenmikaram\" was defined by s. 2 (13) as the amount \"payable in respect of that holding or land under the provisions of this Act by the kanam-tenant to the jenmi every year in lieu of all claims of the jenmi in respect of the holding, or land and shall be the sum total of the mic/zararam and the fractional fee\"; \"ka11amtenant\" was defined by s. 2 (I 2) as a person who holds land on kanarn tenure; and a \"Jenmi\" was defined in s. 2 (3) as \"a person immediately under whom a kanam-tenant holds''. \"Renewal fee\" was defined ins. 2 (11) as fee or fees payable by a kanam-tenant to his jenmi under the contract of tenancy for the renewal of the legal relationship under which the kanam-tenant has been holding any land. \"Holding\" was defined by s. 2 (2) as a parcel or parcels of land held under a single engagement by a tenant as a kanam from a jemni and shall include any portion of a holding as above defined which the jenmi and kanam-tenant have agreed to treat as a separate holding. By s. 2 (4) \"Kanam\" meant a demise with the incidents SP<!cified therein. \"Miclzamram\" was defined by s. 2 (6) as meaning the balance of money or produce or both payable periodically under the contract of tenancy to the jenmi after deducting from the pa/tom the interest due on the kanam amount and p11ra11kadam, if any.\n\nRelying upon these definitions it was urged that the Act applies only to land held under a contract of tenancy and not to land in respect of which the Michavaram and the renewal fee are governed by rules framed under the Proclamation of 1910. It was claimed that the definitions in the Act disclosed clearly an intention not to interfere with the relation between the ka11am-tenants and jenmis in respect of the Devaswom Iands-\"lncorporated\" or \"Unincorporated\". This argument in substance canvasses the plea that the relations between kanamtenants of the Devaswom lands were not governed by contracts.\n\nThis plea is, in our judgment, without substance. It is true that hy Part JI of the Rules dated November ' 1910 issued in\n\nI ·('\n\nexercise of the powers under cl. 9 of the Proclamation of 1910, rules were framed for fixation and collection of \"michavaram\", \"paattom\",\n\nrenewal fee and other dues in respect of Sirkar Devaswoms and other religious institutions. By cl. 13 of the Rules, rent in respect of all Devaswom lands held under kanam tenure was to be fixed in accordance with the provisions of Part II of those Rules and the kanam-leases are to be renewed every fifteen years as provided in\n\ncl. 16. By cl. 25 it was provided that before the introduction of the new rates of rent, a rough Pattah will be furnished to each tenant, showing the details of his holding, rent to be paid, the kanam amount, interest deductions and renewal fees fixed on the kanam holding, if any, Provision was then made in els. 27, 28 & 29 for lodging objections relating to the draft Pattah and determination thereof, and for the issue of a final Pattah in Form C under the signature of the Devaswom Commissioner setting out the particulars of his holding, the rent due from him in kind as well as in money including miscellaneous items, the kanam amounts, interest deductions and renewal fees on kanam lands held by him and the number of instalments in which the rent was payable.\n\nClause 29 further provided that the Pattah so issued shall be considered to be sufficient acknowledgment by the Government of the tenant's right to occupy the land or lands comprised in his holding on the conditions specified in the Pattah and that the tenant's obligations on these conditions shall be embodied in a corresponding kychit. By paragraph-3 of the supplementary rules dated July 17, 19Jl which were intended to regulate the administration of lands belonging to Sirkar Devaswoms the rights and obligations under the Pattah were prescribed, and by sub-paragraph (f) of that paragraph it was provided that the obligations under a Pattah shall be embodied in a kychit in Form Appendix II which each Devaswom tenant receiving a Pattah shall execute. The Form in Appendix JI was as follows :\n\n\"Kychit executed by Pattadar No ......... of. ...•• _ Desam ...... Village ...... Taluk relating to Devaswom properties in group ...... of Cochin State before the Devaswom Katcherry (Office).\n\nIn view of the grant of original Pattah No ..... granted from the Devaswam relating to properties in my possession and which are Devaswam Janmam lands, the Paattam Michavaram (annual rent) Puravka (customary dues) etc. will be paid by me after necessary cleaning the quantity of paddy according to kist mentioned in the Patta. After payment in kind and cash I shall take a receipt for the same. In case of default for any instalment, I shall pay the proper interest for such sum. In the alternative if I cause any loss to the Devaswam, I agree to the realization of such losses caused to Devaswam\n\nSUPREME\n\nCOURT llBPORTS\n\n[1966] 3 S.C.R.\n\nby taking appropriate legal steps by the Devaswam against me.\n\nBesides I am bound hy all the orders of the Dewan from time to time made under the Royal Proclamation of 29th Makaram 1085 (11-2-1910).\"\n\nThe scheme of the Rules clearly was that an offer of a Pattah on the terms specified in a rough draft was to be made to a tenant.\n\nThe tenant was entitled to raise objections thereto and after the objections were heard and disposed of, a final Pattah was to be given to the tenant and the kanam-tenant had to execute the kychit in favour of the State. The terms of the Patta/1 and kychit evidenced the contract which determined the rights of the kanam-tenant and the Devaswom. It is true that under the Proclamation of 1910 and the rules framed thereunder, the quantum of Michavaram and renewal fee was determined in accordance with the rules.\n\nBut the kychit constituted an engagement with the Board, and land held by a kanam-tenant under the kychit was a holding within the meaning of Act 24 of 1955. The Pattah constituted a demise within the meaning of sub-s. (4) of s. 2, Micha1aram defined in s. 2 (6) was deemed payable under the contract of tenancy, and renewal fee under s. 2 (11) wa• payable under that contract of tenancy. We are therefore of the view that the definitions of 'holding', 'Michavaram', 'Kanam', 'Renewal fee' and 'Je11mikaram' in s. 2 of Act 24 of 1955 applied to all lands held by kanam-tenants whether the lands held were Devaswom or non-Devaswom.\n\nIt is true that the Proclamation of 1910 and the rules framed thereunder have not been repealed by the Act. But they could not be repealed for reasons which are obvious. The machinery for grant of Pattah and the execution of kychit was prescribed under those rules. The repeal \"f the Proclamation and the rules framed thereunder would have necessitated a fresh enactment under which the terms which were to govern the relations between the jenmi and the ka11am-tenant were determined. Again repeal of the Proclamation would have necessitated re-enactment of els. 2 & 3 thereof which set up a Common Trust and prescribed the management through the Devaswom Department. Again the rules framed by the Diwan set up machinery for fixation of rent and other dues and for recovery thereof in respect of lands held on kanam and other tenures as well.\n\nNo inference may therefore arise from the notifications issued by the State after enactment of Act 24 of 1955 in pursuance of the rules and Proclamation of 1910 that the Act was not intended to apply to ka11am-tenants holding lands from Devaswoms. The notifications dated February 4, 1958, and July I 1958 issued by the Kerala Government in exercise of the power~ conferred by cl. 9 of the Cochin Proclamation amended the supplementary rules regulating the administration of lands belonging to Sirkar Devaswoms and thereby enabled tenants from whom paddy demand was due according to Pattah to deliver the\n\nl!.\n\nF •\n\n• c\n\nsame in kind or pay the value of paddy calculated at the average nirak rate published by the Government. The notifications are in general terms and could apply to tenures other than those governed by the statute enacted by the Legislature. The Act must be deemed therefore to have partially superseded the Proclamation and the rules framed in so far as the latter related to the rights and obligations of the kanam-tenants in respect of land held by them from the Devaswom Board.\n\nThe plea about infringement of the fundamental rights of the Devaswom Board by the enactment of Act 24 of 1955 needs no elaborate discussion. In the High Court the plea was sought to be sustained on the grounds that the Act infringed the fundamental rights under Art. 14 and also under Art. 31 (2) of the Constitution.\n\nBefore us no argument has been advanced in support of the plea that the Act infringes the right under Art. 31 (2) and nothing more need be said about it. Before dealing with the plea of infringement of the right of equality before the law, it is necessary to set out the case of the Board as pleaded in their affidavit in reply to the tenants' claim. In paragraph-7 of the counter-affidavit filed by the Board in reply to the tenants' petition, it was submitted :\n\n\"The Jenmies of the erstwhile Cochin area where alone the Kanom Tenancy Act has been made applicable have been denied equality before the law and equal protection of the laws in enacting the Kanom Tenancy Act.\n\nThe Legislature discriminates the Jenmies of the Cochin area as against Jenmies similarly situated in the Travancore and Malabar areas of the State. The classification made is unreasonable and there is no reasonable nexus between the classification and the object sought to be achieved by the Act. It is therefore submitted that the Kanom Tenancy Act, XXIV of 1955, offends Article 14 of the Constitution.\"\n\nIn petition No. 102 of 1958 filed by the Devaswom Board, by paragraph 9 (e) it was submitted :\n\n\"The Kanom Tenancy Act offends Article 14 of the Constitution in that the Jenmies in the erstwhile Cochin State have been denied equality before law and the equal protection of the laws. It discriminates the Jenmies of the Cochin area as against the Jenmies similarly situated in Travancore and Malabar areas of the Kerala State.\n\nThe grouping of Kanom tenants in Cochin area for purposes of legislation is not based on any reasonable classification or conceived in the interests of the general public.\" The argument raised on beh&lf of the Board in the two sets of petitions is that the Act only applies to the Cochin area and does\n\n734 5UPR.t:ME\n\nCOURT REPOl.TS\n\n[1966) 3 S.C.R.\n\nnot apply to the whole State of Kerala which consists of three regions, viz., Travancore, Cochin and Malabar and is on that account discriminatory. The argument assumes that the principal incidents of the kanam-tenure in the three regions of the Kerala State are identical and that when Act 24 of 1955 wa' enacted. without any rational ground a distinction was made between the Jenmies in respect of kanam lands in the Travancore and Cochin regions and after the reorganisation of the State in 1936 that discrimination was perpetuated even qua the Jenmies in the Malabar region. This assumption on the finding recorded by the High Court on an extensive review of the legislative history in the three regions has no basis in fact.\n\nThe relation between the Jenmies and the kanamtenants in the Travancore region was governed by the Jenmi and Kudiyan Regulation No. 5 of 1071, as later modified by Regulation No. 12 of I I 08.\n\nThe incidents of the k1111a111-lenure in Travancore region were substantially different from those prevailing in Cochin.\n\nThe customary ka11a111-lenure in Malabar region was governed by\n\nMadras Act I of I 887 which was amended by Act 1 of 1900.\n\nLater the Madras Legislature passed the Malabar Tenancy Act 14 of\n\n1930 which was amended by Acts 33 of I 95 I and 7 of 1954.\n\nFrom a review of the provisions of the Act, the High Court observed that no renewal fee could be levied from a kanamdar in the Malabar region and that fixity of tenure was conferred by s. 25 of Act 14 of 1930. that where'\" in the Malabar region no renewal fee was required to be paid. in the Travancore region fractional fee was charged and that in the Cochin region a renewal fee calculated under s. 28 was payable under the Cochin Tenancy Act 15of1938.\n\nThe Jenmie.1 in the three regions were therefore not similarly circumstanced. If the Legislature with a view to agrarian reform selected the Cochin region and enacted an Act limited to that region, it could not he said, merely on the ground that it applies only to the Cochin region, that it is based on no intelligible differentia.\n\nThe Board only pleaded that by the enactment of the Act there was discrimination between Jenmies in the three regions.\n\nIn the absence of any pica and proof about relative fertility of the soil, nature of crops raised, extent of holdings, historical development of the kanam-tenure and the terms on which the kanam-tenants hold land from the Jenmies, it would be impossible to decide whether the Jemnies in the three regions are similarly circumstanced and that the Legislature has made an unlawful discrimination by providing a different tariff of payments.\n\nA person relying upon the plea of unlawful discrimination which infringes a guarantee of equality before the Jaw or equal protection of the laws must set out with sufficient particulars his plea showing that between the persons similarly circumstanced, discrimination has been made which is founded on no intelligible differentia.\n\nIf the claimant for relief establishes similaritybetween persons who are subjected to a differential treatment it may lie upon the State lo establish\n\nF •\n\nDEVASWOM BOARD V. YAMANA SHBTTY (Shah, /.) 735\n\nthat the differentiation is based on a rational object sought to be achieved by the Legislature. In the present case the pleading of the Devaswom Board is wholly insufficient to discharge the onus of proving similarity of status between the Jenrnies in the three regions, and the findings recorded by the High Court which are not challenged before us clearly show that there is a difference between the relations governing the Jenrnies and the kanarn-tenants in the three regions. The plea about infringement of the fundamental right under Art. 14 of the Constitution must therefore fail.\n\nThe appeals are dismissed with costs.\n\nOne hearing fee in all the appeals.\n\nAppeals dismissed.", "total_entities": 102, "entities": [{"text": "COCHIN DEV ASWOM BOARD, TRICHUR", "label": "PETITIONER", "start_char": 0, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "COCHIN DEVASWOM BOARD, TRICHUR", "offset_not_found": false}}, {"text": "YAMANA SHETTY AND ORS.", "label": "RESPONDENT", "start_char": 33, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "VAMANA SHETTY AND ORS", "offset_not_found": false}}, {"text": "March 2, 1966", "label": "DATE", "start_char": 57, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "March 2, 1966\n\n[P. B. GAJ~NDRAGADKAR, C.J., K. N. WANCHOO, M.\n\nHIDAYATULLAH, J.C. SHAH ANDS."}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 101, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "HIDAYATULLAH, J", "label": "JUDGE", "start_char": 120, "end_char": 135, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "C. SHAH ANDS. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 136, "end_char": 163, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Cochin Kanam Tenancy Act", "label": "STATUTE", "start_char": 182, "end_char": 206, "source": "regex", "metadata": {}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 276, "end_char": 283, "source": "regex", "metadata": {"linked_statute_text": "Cochin Kanam Tenancy Act", "statute": "Cochin Kanam Tenancy Act"}}, {"text": "Clause 9", "label": "PROVISION", "start_char": 482, "end_char": 490, "source": "regex", "metadata": {"linked_statute_text": "Cochin Kanam Tenancy Act", "statute": "Cochin Kanam Tenancy Act"}}, {"text": "Cocbin Kanam Tenancy Act", "label": "STATUTE", "start_char": 997, "end_char": 1021, "source": "regex", "metadata": {}}, {"text": "Cochin Dcvaswom Board", "label": "ORG", "start_char": 1330, "end_char": 1351, "source": "ner", "metadata": {"in_sentence": "After the enactment of the Act, the Cochin Dcvaswom Board c1aimed to recover n1icliavaram from the Kanam tenants at the r.it~ settled under the Rule; made under the Proclamation of 1910."}}, {"text": "Cochin", "label": "GPE", "start_char": 2097, "end_char": 2103, "source": "ner", "metadata": {"in_sentence": "HELD : (i) The Tnl\\ancoro-Cochin Kanom l'enancy Act goverm lands held from Deva.nvonzs in the Cochin region of the State Kerala."}}, {"text": "Kerala", "label": "GPE", "start_char": 2124, "end_char": 2130, "source": "ner", "metadata": {"in_sentence": "HELD : (i) The Tnl\\ancoro-Cochin Kanom l'enancy Act goverm lands held from Deva.nvonzs in the Cochin region of the State Kerala."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 2794, "end_char": 2798, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 3332, "end_char": 3339, "source": "regex", "metadata": {"statute": null}}, {"text": "Travancore", "label": "GPE", "start_char": 3471, "end_char": 3481, "source": "ner", "metadata": {"in_sentence": "Though the Act only applies to the Cochin area of the State of Kerala which consists of the three regions of Travancore, Cochin and Malabar, since there is a difference between the relations governing the Jenmies and the Kanam-tenants in the three religions, the Act is not discriminatory."}}, {"text": "Malabar", "label": "GPE", "start_char": 3494, "end_char": 3501, "source": "ner", "metadata": {"in_sentence": "Though the Act only applies to the Cochin area of the State of Kerala which consists of the three regions of Travancore, Cochin and Malabar, since there is a difference between the relations governing the Jenmies and the Kanam-tenants in the three religions, the Act is not discriminatory."}}, {"text": "M. K. Nambyar", "label": "LAWYER", "start_char": 3928, "end_char": 3941, "source": "ner", "metadata": {"in_sentence": "M. K. Nambyar, P. K. Krishnan Kutty Menon, B. Dutta, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "P. K. Krishnan Kutty Menon", "label": "LAWYER", "start_char": 3943, "end_char": 3969, "source": "ner", "metadata": {"in_sentence": "M. K. Nambyar, P. K. Krishnan Kutty Menon, B. Dutta, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "B. Dutta", "label": "LAWYER", "start_char": 3971, "end_char": 3979, "source": "ner", "metadata": {"in_sentence": "M. K. Nambyar, P. K. Krishnan Kutty Menon, B. Dutta, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "J.B. Dadachanji", "label": "LAWYER", "start_char": 3981, "end_char": 3996, "source": "ner", "metadata": {"in_sentence": "M. K. Nambyar, P. K. Krishnan Kutty Menon, B. Dutta, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "O.C. Mathur", "label": "LAWYER", "start_char": 3998, "end_char": 4009, "source": "ner", "metadata": {"in_sentence": "M. K. Nambyar, P. K. Krishnan Kutty Menon, B. Dutta, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 4014, "end_char": 4029, "source": "ner", "metadata": {"in_sentence": "M. K. Nambyar, P. K. Krishnan Kutty Menon, B. Dutta, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "Niren De", "label": "LAWYER", "start_char": 4051, "end_char": 4059, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General, A. G.\n\nPudissery and M. R. K. Pillai, for the respondent the State of Kerala (In C. As."}}, {"text": "A. G.\n\nPudissery", "label": "LAWYER", "start_char": 4091, "end_char": 4107, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General, A. G.\n\nPudissery and M. R. K. Pillai, for the respondent the State of Kerala (In C. As."}}, {"text": "M. R. K. Pillai", "label": "LAWYER", "start_char": 4112, "end_char": 4127, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-General, A. G.\n\nPudissery and M. R. K. Pillai, for the respondent the State of Kerala (In C. As."}}, {"text": "Shah", "label": "JUDGE", "start_char": 4250, "end_char": 4254, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nShah, J. Two questions fall to be determined in these appeals: (!)"}}, {"text": "Whether the Travancore-Cochin Kanam Tenancy Act", "label": "STATUTE", "start_char": 4317, "end_char": 4364, "source": "regex", "metadata": {}}, {"text": "Kuzhikanam", "label": "WITNESS", "start_char": 5779, "end_char": 5789, "source": "ner", "metadata": {"in_sentence": "In the old days his liability was created in most cases as a reward to the tenant for military or other services rendered by him, but in more recent times, kanam encumbrances were generally created by the janmi borrowing money from his tenant to meet any extraordinary\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1966] 3 S.C.R.\n\nexpenditure by the conversion of the compensation payable to Kuzhikanam (lessee who had a right to make improvements) holders into a kanam debt, or by the treatment of the amount deposited by the tenant for the punctual payment of rent and husband-like cultivation as a charge on the land."}}, {"text": "Calicut", "label": "GPE", "start_char": 6777, "end_char": 6784, "source": "ner", "metadata": {"in_sentence": "After the expulsion in 1762 of the Zamorin of Calicut who had invaded Cochin, the Ruler of Cochin divested the chieftains who had supported the invader of their administrative powers and confiscated their properties and the Devaswoms under their management."}}, {"text": "February 11, 1910", "label": "DATE", "start_char": 8187, "end_char": 8204, "source": "ner", "metadata": {"in_sentence": "On February 11, 1910, the Ruler of Cochin issued a Proclamation publishing rules to secure better administration of the Incorporated and Unincorporated Devaswoms."}}, {"text": "cl. 9", "label": "PROVISION", "start_char": 8714, "end_char": 8719, "source": "regex", "metadata": {"statute": null}}, {"text": "March 21, 1910", "label": "DATE", "start_char": 9264, "end_char": 9278, "source": "ner", "metadata": {"in_sentence": "The Diwan of Cochin promulgated on March 21, 1910, rules regulating procedure in the matter of collecting Paattam, Michavaram, renewal fee and other dues payable to Devaswoms and other religious institutions."}}, {"text": "November 8, 1910", "label": "DATE", "start_char": 9755, "end_char": 9771, "source": "ner", "metadata": {"in_sentence": "On November 8, 1910, some more rules were published by the Diwan."}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 10061, "end_char": 10066, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 8", "label": "PROVISION", "start_char": 10185, "end_char": 10190, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 13", "label": "PROVISION", "start_char": 10373, "end_char": 10379, "source": "regex", "metadata": {"statute": null}}, {"text": "Part II of the Rules", "label": "STATUTE", "start_char": 10527, "end_char": 10547, "source": "regex", "metadata": {}}, {"text": "cl. 16", "label": "PROVISION", "start_char": 10652, "end_char": 10658, "source": "regex", "metadata": {"linked_statute_text": "Part II of the Rules", "statute": "Part II of the Rules"}}, {"text": "July 12, 1911", "label": "DATE", "start_char": 10921, "end_char": 10934, "source": "ner", "metadata": {"in_sentence": "On July 12, 1911, supplementary rules were published to regulate the administration of lands belonging to Devaswoms and for maintenance of accounts connected therewith."}}, {"text": "cl. 3", "label": "PROVISION", "start_char": 11090, "end_char": 11095, "source": "regex", "metadata": {"linked_statute_text": "Part II of the Rules", "statute": "Part II of the Rules"}}, {"text": "October 24, 1914", "label": "DATE", "start_char": 11382, "end_char": 11398, "source": "ner", "metadata": {"in_sentence": "R.\n\nOn October 24, 1914, the Maharaja of Cochin Promulgated the Cochin Tenancy Act II of 1090 M. E. (1914 A.D.)."}}, {"text": "Maharaja of Cochin", "label": "PETITIONER", "start_char": 11404, "end_char": 11422, "source": "ner", "metadata": {"in_sentence": "R.\n\nOn October 24, 1914, the Maharaja of Cochin Promulgated the Cochin Tenancy Act II of 1090 M. E. (1914 A.D.)."}}, {"text": "Tenancy Act II of 1090", "label": "STATUTE", "start_char": 11446, "end_char": 11468, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 11534, "end_char": 11538, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act II of 1090", "statute": "Tenancy Act II of 1090"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 11861, "end_char": 11865, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act II of 1090", "statute": "Tenancy Act II of 1090"}}, {"text": "May 29, 1949", "label": "DATE", "start_char": 12132, "end_char": 12144, "source": "ner", "metadata": {"in_sentence": "On May 29, 1949 the Rulers of Travancore and Cochin States entered into a covenant for the formation of the United State of Travancore-Cochin."}}, {"text": "United State of Travancore-Cochin", "label": "ORG", "start_char": 12237, "end_char": 12270, "source": "ner", "metadata": {"in_sentence": "On May 29, 1949 the Rulers of Travancore and Cochin States entered into a covenant for the formation of the United State of Travancore-Cochin."}}, {"text": "January 26, 1950", "label": "DATE", "start_char": 12275, "end_char": 12291, "source": "ner", "metadata": {"in_sentence": "On January 26, 1950 the State of Travancore- Cochin became a Part 'B' State within the Union of India."}}, {"text": "Travancore- Cochin", "label": "GPE", "start_char": 12305, "end_char": 12323, "source": "ner", "metadata": {"in_sentence": "On January 26, 1950 the State of Travancore- Cochin became a Part 'B' State within the Union of India."}}, {"text": "Union of India", "label": "ORG", "start_char": 12359, "end_char": 12373, "source": "ner", "metadata": {"in_sentence": "On January 26, 1950 the State of Travancore- Cochin became a Part 'B' State within the Union of India."}}, {"text": "s. 62", "label": "PROVISION", "start_char": 12378, "end_char": 12383, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act II of 1090", "statute": "Tenancy Act II of 1090"}}, {"text": "Art. 8", "label": "PROVISION", "start_char": 12422, "end_char": 12428, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act II of 1090", "statute": "Tenancy Act II of 1090"}}, {"text": "Devaswoms and Hindu religious institutiolli which were under the management of the Rule", "label": "STATUTE", "start_char": 12530, "end_char": 12617, "source": "regex", "metadata": {}}, {"text": "first day of July, 1949", "label": "DATE", "start_char": 12654, "end_char": 12677, "source": "ner", "metadata": {"in_sentence": "8-D of the covenant and it was provided that the administration of \"Incorporated\" and \"Unincorporated\" Devaswoms and Hindu religious institutiolli which were under the management of the Ruler of Cochin immediately prior to the first day of July, 1949, and all their propertie5 and funds and the estates and all institutions under the management of the Devaswom Department of Cochin, shall vest in the Cochin Devaswom Board."}}, {"text": "Devaswom Department of Cochin", "label": "ORG", "start_char": 12779, "end_char": 12808, "source": "ner", "metadata": {"in_sentence": "8-D of the covenant and it was provided that the administration of \"Incorporated\" and \"Unincorporated\" Devaswoms and Hindu religious institutiolli which were under the management of the Ruler of Cochin immediately prior to the first day of July, 1949, and all their propertie5 and funds and the estates and all institutions under the management of the Devaswom Department of Cochin, shall vest in the Cochin Devaswom Board."}}, {"text": "Cochin Devaswom Board", "label": "ORG", "start_char": 12828, "end_char": 12849, "source": "ner", "metadata": {"in_sentence": "8-D of the covenant and it was provided that the administration of \"Incorporated\" and \"Unincorporated\" Devaswoms and Hindu religious institutiolli which were under the management of the Ruler of Cochin immediately prior to the first day of July, 1949, and all their propertie5 and funds and the estates and all institutions under the management of the Devaswom Department of Cochin, shall vest in the Cochin Devaswom Board."}}, {"text": "s. 113", "label": "PROVISION", "start_char": 12855, "end_char": 12861, "source": "regex", "metadata": {"linked_statute_text": "Devaswoms and Hindu religious institutiolli which were under the management of the Rule", "statute": "Devaswoms and Hindu religious institutiolli which were under the management of the Rule"}}, {"text": "February II, 1910", "label": "DATE", "start_char": 12916, "end_char": 12933, "source": "ner", "metadata": {"in_sentence": "By s. 113 (2) the provisions of the Devaswom Proclamation dated February II, 1910 and the rule1> framed thereunder in respect of the procedure to be adopted and the mode of recovery of pattom, micliavaram, renewal fees and other dues were, it was declared, to apply mlllatis mutandis to the procedure and mode of recovery of paa11om, michavaram renewal fee.;"}}, {"text": "Legislature of the State of Travancore-Cochin", "label": "PETITIONER", "start_char": 13290, "end_char": 13335, "source": "ner", "metadata": {"in_sentence": "The Legislature of the State of Travancore-Cochin enacted Act 24 of 1955 called the Travancore-Cochin Kanam Tenancy Act 24 of 1955 with the object of conferring full proprietary rights on kanam tenants in the Cochin area subject only to the payment\n\nof janmikaram and to provide for the settlement, collection and payment of jamnikaram and for matters incidental thereto."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 13664, "end_char": 13668, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 14175, "end_char": 14179, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 62", "label": "PROVISION", "start_char": 14654, "end_char": 14659, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 9", "label": "PROVISION", "start_char": 14840, "end_char": 14845, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Kerala", "label": "COURT", "start_char": 14918, "end_char": 14938, "source": "ner", "metadata": {"in_sentence": "The kanam-tenants thereupon petitioned the High Court of Kerala for a writ of certiorari, prohibition or other writ quashing the notices of demand issued by the Board and all proceedings taken by the Assistant Devaswom Commissioner."}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 16263, "end_char": 16273, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 16283, "end_char": 16290, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 17716, "end_char": 17720, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 17851, "end_char": 17855, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 18167, "end_char": 18171, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 18252, "end_char": 18256, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 18566, "end_char": 18570, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 18813, "end_char": 18817, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 18912, "end_char": 18916, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 9", "label": "PROVISION", "start_char": 19895, "end_char": 19900, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 13", "label": "PROVISION", "start_char": 20100, "end_char": 20106, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 16", "label": "PROVISION", "start_char": 20334, "end_char": 20340, "source": "regex", "metadata": {"linked_statute_text": "Devaswom lands held under kanam tenure was to be fixed in accordance with the provisions of Part II of those Rules", "statute": "Devaswom lands held under kanam tenure was to be fixed in accordance with the provisions of Part II of those Rules"}}, {"text": "cl. 25", "label": "PROVISION", "start_char": 20345, "end_char": 20351, "source": "regex", "metadata": {"linked_statute_text": "Devaswom lands held under kanam tenure was to be fixed in accordance with the provisions of Part II of those Rules", "statute": "Devaswom lands held under kanam tenure was to be fixed in accordance with the provisions of Part II of those Rules"}}, {"text": "Devaswom", "label": "OTHER_PERSON", "start_char": 20812, "end_char": 20820, "source": "ner", "metadata": {"in_sentence": "27, 28 & 29 for lodging objections relating to the draft Pattah and determination thereof, and for the issue of a final Pattah in Form C under the signature of the Devaswom Commissioner setting out the particulars of his holding, the rent due from him in kind as well as in money including miscellaneous items, the kanam amounts, interest deductions and renewal fees on kanam lands held by him and the number of instalments in which the rent was payable.", "canonical_name": "Devaswom"}}, {"text": "Clause 29", "label": "PROVISION", "start_char": 21104, "end_char": 21113, "source": "regex", "metadata": {"linked_statute_text": "Devaswom lands held under kanam tenure was to be fixed in accordance with the provisions of Part II of those Rules", "statute": "Devaswom lands held under kanam tenure was to be fixed in accordance with the provisions of Part II of those Rules"}}, {"text": "July 17, 19Jl", "label": "DATE", "start_char": 21491, "end_char": 21504, "source": "ner", "metadata": {"in_sentence": "By paragraph-3 of the supplementary rules dated July 17, 19Jl which were intended to regulate the administration of lands belonging to Sirkar Devaswoms the rights and obligations under the Pattah were prescribed, and by sub-paragraph (f) of that paragraph it was provided that the obligations under a Pattah shall be embodied in a kychit in Form Appendix II which each Devaswom tenant receiving a Pattah shall execute."}}, {"text": "Devaswam", "label": "OTHER_PERSON", "start_char": 22623, "end_char": 22631, "source": "ner", "metadata": {"in_sentence": "In the alternative if I cause any loss to the Devaswam, I agree to the realization of such losses caused to Devaswam\n\nSUPREME\n\nCOURT llBPORTS\n\n[1966] 3 S.C.R.\n\nby taking appropriate legal steps by the Devaswam against me.", "canonical_name": "Devaswom"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 23809, "end_char": 23813, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 23837, "end_char": 23841, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 23918, "end_char": 23922, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 24094, "end_char": 24098, "source": "regex", "metadata": {"statute": null}}, {"text": "No inference may therefore arise from the notifications issued by the State after enactment of Act", "label": "STATUTE", "start_char": 25059, "end_char": 25157, "source": "regex", "metadata": {}}, {"text": "Kerala Government", "label": "ORG", "start_char": 25379, "end_char": 25396, "source": "ner", "metadata": {"in_sentence": "The notifications dated February 4, 1958, and July I 1958 issued by the Kerala Government in exercise of the power~ conferred by cl."}}, {"text": "cl. 9", "label": "PROVISION", "start_char": 25436, "end_char": 25441, "source": "regex", "metadata": {"linked_statute_text": "No inference may therefore arise from the notifications issued by the State after enactment of Act", "statute": "No inference may therefore arise from the notifications issued by the State after enactment of Act"}}, {"text": "Pattah", "label": "OTHER_PERSON", "start_char": 25642, "end_char": 25648, "source": "ner", "metadata": {"in_sentence": "9 of the Cochin Proclamation amended the supplementary rules regulating the administration of lands belonging to Sirkar Devaswoms and thereby enabled tenants from whom paddy demand was due according to Pattah to deliver the\n\nl!."}}, {"text": "Devaswom Board", "label": "ORG", "start_char": 26144, "end_char": 26158, "source": "ner", "metadata": {"in_sentence": "The Act must be deemed therefore to have partially superseded the Proclamation and the rules framed in so far as the latter related to the rights and obligations of the kanam-tenants in respect of land held by them from the Devaswom Board."}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 26424, "end_char": 26431, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 26447, "end_char": 26454, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 26583, "end_char": 26590, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 27531, "end_char": 27541, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 27692, "end_char": 27702, "source": "regex", "metadata": {"statute": null}}, {"text": "Kerala State", "label": "GPE", "start_char": 27977, "end_char": 27989, "source": "ner", "metadata": {"in_sentence": "It discriminates the Jenmies of the Cochin area as against the Jenmies similarly situated in Travancore and Malabar areas of the Kerala State."}}, {"text": "Madras Act", "label": "STATUTE", "start_char": 29455, "end_char": 29465, "source": "regex", "metadata": {}}, {"text": "Later the Madras Legislature passed the Malabar Tenancy Act", "label": "STATUTE", "start_char": 29514, "end_char": 29573, "source": "regex", "metadata": {}}, {"text": "s. 25", "label": "PROVISION", "start_char": 29826, "end_char": 29831, "source": "regex", "metadata": {"linked_statute_text": "Later the Madras Legislature passed the Malabar Tenancy Act", "statute": "Later the Madras Legislature passed the Malabar Tenancy Act"}}, {"text": "s. 28", "label": "PROVISION", "start_char": 30039, "end_char": 30044, "source": "regex", "metadata": {"linked_statute_text": "Later the Madras Legislature passed the Malabar Tenancy Act", "statute": "Later the Madras Legislature passed the Malabar Tenancy Act"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 32067, "end_char": 32074, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_736_743_EN", "year": 1966, "text": "V. D. JHANGAN\n\nSTATE OF UITAR PRADESH\n\nMarch 3, 1966\n\n(K. SUBBA RAO, V. RAMASWAMI AND J. M. SllELAT, JJ.j B\n\nPrevention of Corruption Act, 1947 (2 o/ 1947), 1. 4(1)-PrUllmprion under section, when arises-Receipt of money or valuable thin1 hy accused whether sufTu:ient-Nature of burden of proof on ar:custd for r1butt/na such presumption.\n\nThe appellant, an employee of the Ministry of Commerce was tried for o1Iellee6 1111der s. 161 of the Indian Penal Code and a. 5(2) read with t. 5(l)(d) of tho Prevention of Comiption Act on the allegation that he received a sum of money and aome cloth from a trader. He wu convicted and bis appeal before the High Court failed.\n\nIn appeal before thia Coun the questions that fell for determination related to : (i) the circu=tances in which a prumption under 8\\lb.6. ( 1) of s. 4 of the Prevention of Corruption Act could arise, and (ii) the nature of the burden of proof that lay on an accused person to rebut such a pumpllon when it arises.\n\nHELD: (i) For a presumption to be raised under s. 4(1) it ii not necessary for the prosecution to prove anything more than that money or other valuable thing was received by the accusedi it is not nece918ry toe\n\ntho prosecution, for the above purpose, to prove the incriminating character of the said paym\"\"t. (739 E, Fl\n\nDhanvantral BalwanrraJ Desai v. State of Maharashtra, A.I.R. 19&4 S.C. 515 and C. I. Emden v. State of Uttar Pradesh, A.l.R. 1960 S.C. 548, followed.\n\n(ii) The burden of proof lying upon tho accused under s. 4(1) will be satisfied if the accused penon establishes his case by a preponderance of probability and it is not necessary that he should establish his case by tho test of proof beyond a reason.able doubt.\n\nThe onus on an accused may well be compared to the onus on a party in civil proceedmgs. (741 BJ\n\nWoolmlngton v. Director of PubUc Prosecutions, [1935] A.C. 462, Rex ,., Carr-Briant, [1943] 1 K.B. 607 and Harbhajan Singh v. State of Punjab. [1965] 3 S.C.R. 235, referred to.\n\nIn the pre<ent case the appellant had not proved his case even by the test of preponderance of probability.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 157 of 1964.\n\nAppeal by special leave from the judgment and order dated March 20, 1964 of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal Appeal No. 20of1962.\n\nJai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellaut.\n\nS. T. Desai, R. L. Mehta and 0. P. Rana, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. The appellant was tried for offences under s. 161, Indian Penal Code and s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act by special Judge, Anti-Corruption, Lucknow who by his judgment dated January 8, 1962 convicted . the appellant and sentenced him to three years' rigorous imprisonment and a fine of Rs. 2,000. In default for payment of fine the appellant was further ordered to undergo rigorous imprisonment for one year. The appellant preferred an appeal to the Allahabad High Court, Lucknow Bench, which dismissed the appeal by its judgment dated March 20, 1964 and affirmed the conviction and sentence imposed by the Special Judge upon the appellant. This appeal is brought, by special leave, from the judgment of the Allahabad High Court, Lucknow Bench.\n\nThe appellant was employed as Assistant Director Enforcement, Government of India, Ministry of Commerce at Kanpur and used to deal with matters regarding the cancellation of licences of cloth dealers at Kanpur. On or about September 5, 1951 the appellant received a confidential letter dated August 30, 1951 from the District Magistrate, Kanpur. On the same date the appellant called one Ram Lal Kapoor who was the legal adviser of New Victoria Mills Ltd. at his house. The appellant showed him the letter of the District Magistrate and on the strength of that letter he demanded through Ram Lal Kapoor a bribe of Rs. 30,000 from Sidh Gopal for saving his licence from being cancelled. It appears that Sidh Gopal was a partner of various firms dealing in cloth and it was suspected that these firms were indulging in black-marketing in cloth. Sidh Gopal came to the appellant on September 9, 1951 to talk over the matter and the appellant made the same demand of bribe from him. On September 11, 1951, the appellant is alleged to have agreed with Ram Lal Kapoor to receive a sum of Rs. 10,000 as first instalment of the bribe from Sidh Gopal through Ram Lal Kapoor. Accordingly on September 11, 1951 at about 8 p.m. the appellant went to the house of Ram Lal Kapoor and accepted the bribe of Rs. 10,000 in currency notes and also a Than of long cloth from the said Ram Lal Kapoor undertaking that in lieu thereof the appellant would not report against Sidh Gopal and thereby save his licence from cancellation. A raid had been prearranged and the raiding party consisting of Shri Satish Chander P.W. 1 and Shri Onkar Singh P.W. 2, the District Magistrate and the Senior Superintendent of Police respectively were lying in wait at the premises of Ram Lal Kapoor. At about 9 45 p.m. the appellant came out of the bungalow of Ram Lal Kapoor and on the agreed signal being given, the raiding party came and on search .of the appellant an amount of Rs. 10,000 was found from his person.\n\n738 SUPREME COUllT REPORTS\n\n\nAt the time of the recovery of the money the appellant made a statement that the amount received by him was as a loan as he wanted to purchase a bungalow. The defence of the appellant was that he never negotiated with Ram Lal Kapoor or Sidh Gopal regarding the bribe but the appellant had been falsely implicated because he had prosecuted one Bhola Nath of the firm of M/s Mannulal Sidh Gopal under s. 7 of Essential Supplies Act and the District Magistrate had arrested Bhola Nath and kept him under detention under the powers conferred by the Preventive Detention Act. In order to take revenge for the arrest of Bhola Nath, Sidh Gopal and Ram Lal Kapoor had conspired together and falsely implicated the appellant. The Special Judge disbelieved the case of the appellant and held that the prosecution evidence sufficiently established the charges under s. 161, Indian Penal Code and s. 5(2) read with s. 5(I)(d) of the Prevention of Corruption Act.\n\nThe findings of the trial court have been affirmed by the Allahabad High Court in appeal which also rejected the case of the appellant as untrue and held that the amount of Rs. 10,000 was received by the appellant from Ram Lal Kapoor by way of illegal gratification and not as a loan for purchasing a house.\n\nThe first question for determination is whether a presumption under sub-s. ( l) of s. 4 of the Prevention of Corruption Act arises in this case. That provision reads as follows:\n\n\"Where in any trial of an offence punishable under s. 161 or s. 165 of the Indian Penal Code it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted or obtain, for himself or for any other person, any gratification (other than legal remuneration or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the saids. 161, or as the case may be, without consideration or for a consideration which he knows to be inadequate.\"\n\nIt was held by this Court in Dhanl'Gntrai Balwantrai Desai v. State of Maharashtra(') that in order to raise the presumption under this 6 sub-section what the prosecution has to prove is that the accused person has received \"gratification other than legal remuneration\" and when it is shown that he has received a certain sum of money which was not a legal remuneration, then the condition prescribed by this section is satisfied and the presumption thereunder must be raised. It was contended in that case that the mere receipt of any money did not justify the raising of the presumption and that\n\n(I) A.I .R. 1964 S.C'. 575.\n\nA '\n\n4. __ _.,,\n\n---~\n\n• },.\n\n_,.\n\nF .,.\n\nG . ,\n\nsomething more than the mere receipt of the money had to be proved. The argument was rejected by this Court and it was held that the mere receipt of the money was sufficient to raise a presumption under the sub-section. A similar argument was addressed in C. I. Emden v. State of Uttar Pradesh(t). In rejecting that argument this Court observed:\n\n\"If the word 'gratification' is construed to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the raising of the presumption .\n\nTechnically it may no doubt be suggested that the object which the statutory presumption serves on this construction is that the court may then presume that the money was paid by way of a bribe as a motive or reward as required by s. 161 of the Code. In our opinion this could not have been the intention of the Legislature in prescribing the statutory presumption under s. 4(1).\"\n\nThis Court proceeded to state:\n\n\"It cannot be suggested that the relevant clause ins. 4(1) which deals with the acceptance of any valuable thing should be interpreted to impose upon the prosecution an obligation to prove not only that the valuable thing has been received by the accused but that it has been received by him without consideration or for a consideration which he knows to be inadequate. The plain meaning of this clause undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused without anything more. If that is the true position in respect of the construction of this part of s. 4(1) it would be unreasonable to hold that the word 'gratification' in the same clause imports the necessity to prove not only the payment of money but the incriminating character of the said payment. It is true that the Legislature might have used the word 'money' or 'consideration' as has been done by the relevant section of the English statute; ...... \" It must, therefore, be held that, in the circumstances of the present case, the requirements of sub-s. (1) of s. 4 have been fulfilled and the presumption thereunder must be raised.\n\nThe next question arising in this case is as to what is the burden\n\nf pr?of placed upon the accused person against whom the presumptm.n ts drawn nder s. 4(1) of the Prevention of Corruption Act.\n\nIt is well-established that where the burden of an issue lies upon the\n\naused, he is not equired to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is,\n\n(!) A.LR. 1960 S.C. 548.\n\nSUPREME\n\nCOURT\n\nR.BPOR.TS\n\n\nof course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under s. 4(1) of the Prevention of Corruption Act.\n\nIt is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty.\n\nThe onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has lo discharge its original onus that never shifts i.e., that of establishing on the whole case the guilt of the accused beyond a reasonable doubt.\n\nIt was observed by Viscount Sankey in Woolmi11gto11 v. Director of Public Prosecutions(') that \"no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained\". This principle is a fundamental part of the English Common Law and the same position prevails in the Criminal Law of India. That does not mean that if the statute places the burden of proof on an accused person, he is not required to establish his pica; but the degree and character of proof which the accused is expected to furnish in support of his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case.\n\nIn Rex v. Carr-Briant,(2) a somewhat similar question arose before the English Court of Appeal.\n\nIn that case, the appellant was charged with the offence of corruptly making a gift or loan to a person in the employ of the War Department as an inducement to show, or as a reward for showing, favour to him. The charge was laid under the Prevention of Corruption Act, 1916, and in respect of such a charge, s. 2 of the Prevention of Corruption Act, 1916, had provided that a consideration shall be deemed to be given corruptly unless the contrary is proved. The question which arose before the Court was: what is the accused required lo prove if he wants to claim the benefit of the exception? At the trial, the Judge had directed the jury that the onus of proving his innocence lay on the accused and that the burden of proof resting on him to negative corruption was as heavy as that ordinarily resting on the prosecution. The Court of Criminal Appeal held that this direction did not correctly represent the true position in Jaw.\n\nIt was held by the Court of Appeal that where, either by statute or at Common Law, some matter is presumed against an accused person \"unless the contrary is proved,\" the jury should be directed that the burden of proof on the accused is less than that required at the hands of the prosecution in proving the case beyod a reasoab.le doubt, and that this burden may be discharged by evidence sausfymg the Jury of the\n\n(I) !1935JA.C. 462.\n\n(2) !194311 K.n. 607.\n\n• ;.-\n\n...\n\n• •.. ...\n\n• •\n\ntr;\"~\n\nI • ,_\n\n_,,\n\nprobability of that which the accused is called on to establish. The ratio of this case was referred to with approval by this Court in Harbhajan Singh v. T71e State of Punjab.(I) We are accordingly of the opinion that the burden of proof lying upon the accused under s. 4(1) of the Prevention of Corruption Act will be satisfied if the accused person establishes his case by a preponderance of probability and it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt. In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities, so must a criminal court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him.\n\nIt is against this background of principle that we must proceed to examine the contention of the appellant that the charges under s. 161, Indian Penal Code and s. 5(2) read with s. 5(I)(d) of the Prevention of Corruption Act have not been proved against him.\n\nIt was argued by Mr. Sethi that the circumstances found by the High Court in their totality do not establish that the appellant acc.epted the amount of Rs. 10,000 as illegal gratification and not as a loan. It was also argued for the appellant that he had adduced sufficient evidence to show that the amount was really given to him as a loan by Ram Lal Kapoor. Having examined the findings of both the lower courts, we are satisfied that the appellant has not proved his case by the test of preponderance of probability and the lower courts rightly reached the conclusion that the amount was taken by the appellant not as a loan but as illegal gratification. It has been found by the High Court that Ram Lal Kapoor was not likely to lend a sum f Rs\" J 0,000 to the appellant without getting a formal document executed. It is not suggested by the appellant that he executed a hand-note in favour of Ram Lal Kapoor. There was a suggestion that he granted a receipt for Rs. 10,000 to Ram Lal Kapoor but the High Court rejected the case of the appellant on this point. The High Court has observed that, in the first instance, the appellant did not make a statement with regard to the receipt as soon as the amount was recovered from him. It was only after he was taken to Marden Singh's place that he made a belated statement that tli.e amount was advanced to him by Ram Lal Kapoor as a )oan and he had granted a receipt. Mr. Sethi contended that it was the duty of the District Magistrate and the Senior Superintendent of Police to have made a search of the whole bungalow of Ram Lal Kapoor for the alleged receipt and the failure of these two officers to make the search should be taken to prove the appellant's case regarding the grant of the alleged receipt.\n\n(I) (1965) 3 S.C.R; 235.\n\nSUPAEME\n\nC:OUAT REPOllTS\n\n[1966] 3 S.CR.\n\nWe do not accept the submission of the learned counsel as correct.\n\nThe High Court has remarked that the statement of the appellant was highly belated and the District authorities were justified in not making a search and ransacking the whole bungalow of Ram Lal Kapoor for the recovery of the alleged receipt. It was then contended on behalf of the appellant that no panchanama was prepared by the District Magistrate or the Senior Superintendent of Police who recovered the money from the appellant. It was also stated that no independent witness was summoned to be present at the time of the search. It was pointed out that the District Magistrate is related to Sidh Gopal and it was suggested by Mr. Sethi that the evidence of the District Magistrate, of the Senior Superintendent of Police and of Sidh Gopal should not have been accepted by the High Court as true. But all the circumstances have been taken into account hy the High Court in discussing the testimony of these witnesses and ordinarily it is not permissible for the appellant to reopen conclusions of fact in this Court, especially when both the lower Courts have agreed with those conclusions which relate to the credibility of witnesses who have been believed by the trial Court which had the advantage of seeing them and hearing their evidence. It was then contended by the appellant that the High Court has taken into account the statement of Ram Lal Kapoor made in a departmental proceeding in coming to a conclusion regarding the guilt of the appellant. We do not think there is any justification for this argument. The High Court has properly held that the evidence of Ram Lal Kapoor dated December 16,\n\n1952-Ex. P-1 I-was not admissible and has excluded it from its consideration in discussing the guilt of the appellant. It is true that in setting out the history of the case the High Court has referred to the statement of Ram Lal Kapoor but that does not mean that the High Court has used the statement of Ram Lal Kapoor for the purpose of convicting the appellant in the present case. It was also contended by Mr. Sethi on behalf of the appellant that the statements-Exs. P-3 an P.4-should have been excluded from consideration. It was contended that .these statements were made by the appellant to the District Magistrate after the recovery of the money and were hit by the provisions of s. 162 of the Criminal Procedure Code. On behalf of the respondent Mr. Desai said that these statements are admissible because they were made to the District Magistrate and not to a police officer and were not during the course of investigation because the First Information Report was lodged on September 13, 1951 at 8 30 p.m. long after the statements were made. We do not consider it necessary to express any concluded opinion as to whether Exs. P-3. and ~-4 are admissible .but even if they are excluded from cons1derallon there ts sufficient evidence to support the conviction of the appellant on the charges under s. 161, Indian Penal Code and s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act.\n\n• r ..\n\n• ..\n\n... ..-..·\n\n• •\n\n• A\n\n\\_\"\"\"\n\nIt was also submitted by Mr. Sethi that the evidence of Sidh Gopal should not have been accepted by the High Court. It was pointed out that the appellant had received the letter of District Magistrate-Ex. P-1 on September 5, 1951 and it-was, therefore, not likely that the appellant should have contacted Ram Lal Kapoor and Sidh Gopal on the 18th or 19th August, 1951. There is, however, evidence in this case that Bhola Nath who was a Salesman of M/s Mannulal Sidh Gopal was arrested in August, 1951 on the report of the appellant and Sidh Gopal apprehended that he would also come under the clutches of the law and his licences may also possibly be cancelled. In any event, this is a question regarding the credibility of Sidh Gopal and it is not open to the appellant to contest the finding of the lower courts with regard to the credibility of that witness in this appeal.\n\nLastly, Mr. Sethi submitted that the appellant was 66 years old and the offence was committed in 1951 and legal proceedings have protracted for 15 years. Mr. Sethi, therefore, prayed that the sentence imposed on the appellant may be reduced. We are unable to accept this argument. We do not consider that the sentence is excessive in the circumstances of the case.\n\nFor the reasons already expressed, we hold that there is no merit in this appeal which is accordingly dismissed.\n\nAppeal dismissed .", "total_entities": 86, "entities": [{"text": "V. D. JHANGAN", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "V. D. 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L. Sareen and R. L. Kohli, for the appellaut."}}, {"text": "L. Sareen", "label": "LAWYER", "start_char": 2355, "end_char": 2364, "source": "ner", "metadata": {"in_sentence": "Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellaut."}}, {"text": "R. L. Kohli", "label": "LAWYER", "start_char": 2369, "end_char": 2380, "source": "ner", "metadata": {"in_sentence": "Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellaut."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 2402, "end_char": 2413, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, R. L. Mehta and 0."}}, {"text": "R. L. Mehta", "label": "LAWYER", "start_char": 2415, "end_char": 2426, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, R. L. Mehta and 0."}}, {"text": "0. P. Rana", "label": "LAWYER", "start_char": 2431, "end_char": 2441, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, R. L. Mehta and 0."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 2508, "end_char": 2517, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. The appellant was tried for offences under s. 161, Indian Penal Code and s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act by special Judge, Anti-Corruption, Lucknow who by his judgment dated January 8, 1962 convicted .", "canonical_name": "V. RAMASWAMI"}}, {"text": "s. 161", "label": "PROVISION", "start_char": 2565, "end_char": 2571, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 2573, "end_char": 2590, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 2595, "end_char": 2602, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 5(1)(d)", "label": "PROVISION", "start_char": 2613, "end_char": 2623, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 2631, "end_char": 2659, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Allahabad High Court, Lucknow Bench", "label": "COURT", "start_char": 3005, "end_char": 3040, "source": "ner", "metadata": {"in_sentence": "The appellant preferred an appeal to the Allahabad High Court, Lucknow Bench, which dismissed the appeal by its judgment dated March 20, 1964 and affirmed the conviction and sentence imposed by the Special Judge upon the appellant."}}, {"text": "March 20, 1964", "label": "DATE", "start_char": 3091, "end_char": 3105, "source": "ner", "metadata": {"in_sentence": "The appellant preferred an appeal to the Allahabad High Court, Lucknow Bench, which dismissed the appeal by its judgment dated March 20, 1964 and affirmed the conviction and sentence imposed by the Special Judge upon the appellant."}}, {"text": "Government of India", "label": "ORG", "start_char": 3363, "end_char": 3382, "source": "ner", "metadata": {"in_sentence": "The appellant was employed as Assistant Director Enforcement, Government of India, Ministry of Commerce at Kanpur and used to deal with matters regarding the cancellation of licences of cloth dealers at Kanpur."}}, {"text": "Kanpur", "label": "GPE", "start_char": 3408, "end_char": 3414, "source": "ner", "metadata": {"in_sentence": "The appellant was employed as Assistant Director Enforcement, Government of India, Ministry of Commerce at Kanpur and used to deal with matters regarding the cancellation of licences of cloth dealers at Kanpur."}}, {"text": "September 5, 1951", "label": "DATE", "start_char": 3524, "end_char": 3541, "source": "ner", "metadata": {"in_sentence": "On or about September 5, 1951 the appellant received a confidential letter dated August 30, 1951 from the District Magistrate, Kanpur."}}, {"text": "August 30, 1951", "label": "DATE", "start_char": 3593, "end_char": 3608, "source": "ner", "metadata": {"in_sentence": "On or about September 5, 1951 the appellant received a confidential letter dated August 30, 1951 from the District Magistrate, Kanpur."}}, {"text": "Ram Lal Kapoor", "label": "OTHER_PERSON", "start_char": 3689, "end_char": 3703, "source": "ner", "metadata": {"in_sentence": "On the same date the appellant called one Ram Lal Kapoor who was the legal adviser of New Victoria Mills Ltd. at his house."}}, {"text": "New Victoria Mills Ltd.", "label": "ORG", "start_char": 3733, "end_char": 3756, "source": "ner", "metadata": {"in_sentence": "On the same date the appellant called one Ram Lal Kapoor who was the legal adviser of New Victoria Mills Ltd. at his house."}}, {"text": "Sidh Gopal", "label": "OTHER_PERSON", "start_char": 3931, "end_char": 3941, "source": "ner", "metadata": {"in_sentence": "30,000 from Sidh Gopal for saving his licence from being cancelled."}}, {"text": "September 9, 1951", "label": "DATE", "start_char": 4180, "end_char": 4197, "source": "ner", "metadata": {"in_sentence": "Sidh Gopal came to the appellant on September 9, 1951 to talk over the matter and the appellant made the same demand of bribe from him."}}, {"text": "September 11, 1951", "label": "DATE", "start_char": 4283, "end_char": 4301, "source": "ner", "metadata": {"in_sentence": "On September 11, 1951, the appellant is alleged to have agreed with Ram Lal Kapoor to receive a sum of Rs."}}, {"text": "Satish Chander", "label": "WITNESS", "start_char": 4881, "end_char": 4895, "source": "ner", "metadata": {"in_sentence": "A raid had been prearranged and the raiding party consisting of Shri Satish Chander P.W. 1 and Shri Onkar Singh P.W. 2, the District Magistrate and the Senior Superintendent of Police respectively were lying in wait at the premises of Ram Lal Kapoor."}}, {"text": "Onkar Singh", "label": "WITNESS", "start_char": 4912, "end_char": 4923, "source": "ner", "metadata": {"in_sentence": "A raid had been prearranged and the raiding party consisting of Shri Satish Chander P.W. 1 and Shri Onkar Singh P.W. 2, the District Magistrate and the Senior Superintendent of Police respectively were lying in wait at the premises of Ram Lal Kapoor."}}, {"text": "Bhola Nath", "label": "OTHER_PERSON", "start_char": 5656, "end_char": 5666, "source": "ner", "metadata": {"in_sentence": "The defence of the appellant was that he never negotiated with Ram Lal Kapoor or Sidh Gopal regarding the bribe but the appellant had been falsely implicated because he had prosecuted one Bhola Nath of the firm of M/s Mannulal Sidh Gopal under s. 7 of Essential Supplies Act and the District Magistrate had arrested Bhola Nath and kept him under detention under the powers conferred by the Preventive Detention Act."}}, {"text": "Mannulal Sidh Gopal", "label": "OTHER_PERSON", "start_char": 5686, "end_char": 5705, "source": "ner", "metadata": {"in_sentence": "The defence of the appellant was that he never negotiated with Ram Lal Kapoor or Sidh Gopal regarding the bribe but the appellant had been falsely implicated because he had prosecuted one Bhola Nath of the firm of M/s Mannulal Sidh Gopal under s. 7 of Essential Supplies Act and the District Magistrate had arrested Bhola Nath and kept him under detention under the powers conferred by the Preventive Detention Act."}}, {"text": "s. 7", 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"label": "COURT", "start_char": 6323, "end_char": 6343, "source": "ner", "metadata": {"in_sentence": "The findings of the trial court have been affirmed by the Allahabad High Court in appeal which also rejected the case of the appellant as untrue and held that the amount of Rs."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 6657, "end_char": 6661, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 6669, "end_char": 6697, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161", "label": "PROVISION", "start_char": 6804, "end_char": 6810, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 165", "label": "PROVISION", "start_char": 6814, "end_char": 6820, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 6828, "end_char": 6845, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161", "label": "PROVISION", "start_char": 8858, "end_char": 8864, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 8998, "end_char": 9005, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 9671, "end_char": 9678, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 10143, "end_char": 10147, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 10366, "end_char": 10373, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 10381, "end_char": 10409, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 10902, "end_char": 10909, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 10917, "end_char": 10945, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Viscount Sankey", "label": "OTHER_PERSON", "start_char": 11556, "end_char": 11571, "source": "ner", "metadata": {"in_sentence": "It was observed by Viscount Sankey in Woolmi11gto11 v. Director of Public Prosecutions(') that \"no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained\"."}}, {"text": "England", "label": "GPE", "start_char": 11780, "end_char": 11787, "source": "ner", "metadata": {"in_sentence": "It was observed by Viscount Sankey in Woolmi11gto11 v. Director of Public Prosecutions(') that \"no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained\"."}}, {"text": "India", "label": "GPE", "start_char": 11960, "end_char": 11965, "source": "ner", "metadata": {"in_sentence": "This principle is a fundamental part of the English Common Law and the same position prevails in the Criminal Law of India."}}, {"text": "charge was laid under the Prevention of Corruption Act, 1916", "label": "STATUTE", "start_char": 12635, "end_char": 12695, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2", "label": "PROVISION", "start_char": 12730, "end_char": 12734, "source": "regex", "metadata": {"linked_statute_text": "The charge was laid under the Prevention of Corruption Act, 1916", "statute": "The charge was laid under the Prevention of Corruption Act, 1916"}}, {"text": "Prevention of Corruption Act, 1916", "label": "STATUTE", "start_char": 12742, "end_char": 12776, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 14132, "end_char": 14139, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 14147, "end_char": 14175, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161", "label": "PROVISION", "start_char": 14888, "end_char": 14894, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 14896, "end_char": 14913, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 14918, "end_char": 14925, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 5(I)(d)", "label": "PROVISION", "start_char": 14936, "end_char": 14946, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 14954, "end_char": 14982, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sethi", "label": "OTHER_PERSON", "start_char": 15039, "end_char": 15044, "source": "ner", "metadata": {"in_sentence": "It was argued by Mr. Sethi that the circumstances found by the High Court in their totality do not establish that the appellant acc.epted the amount of Rs."}}, {"text": "Marden Singh", "label": "OTHER_PERSON", "start_char": 16286, "end_char": 16298, "source": "ner", "metadata": {"in_sentence": "It was only after he was taken to Marden Singh's place that he made a belated statement that tli.e amount was advanced to him by Ram Lal Kapoor as a )oan and he had granted a receipt."}}, {"text": "December 16,", "label": "DATE", "start_char": 18512, "end_char": 18524, "source": "ner", "metadata": {"in_sentence": "The High Court has properly held that the evidence of Ram Lal Kapoor dated December 16,\n\n1952-Ex."}}, {"text": "s. 162", "label": "PROVISION", "start_char": 19216, "end_char": 19222, "source": "regex", "metadata": {"statute": null}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 19287, "end_char": 19292, "source": "ner", "metadata": {"in_sentence": "On behalf of the respondent Mr. Desai said that these statements are admissible because they were made to the District Magistrate and not to a police officer and were not during the course of investigation because the First Information Report was lodged on September 13, 1951 at 8 30 p.m. long after the statements were made."}}, {"text": "September 13, 1951", "label": "DATE", "start_char": 19512, "end_char": 19530, "source": "ner", "metadata": {"in_sentence": "On behalf of the respondent Mr. Desai said that these statements are admissible because they were made to the District Magistrate and not to a police officer and were not during the course of investigation because the First Information Report was lodged on September 13, 1951 at 8 30 p.m. long after the statements were made."}}, {"text": "s. 161", "label": "PROVISION", "start_char": 19836, "end_char": 19842, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 19844, "end_char": 19861, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 19866, "end_char": 19873, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 5(1)(d)", "label": "PROVISION", "start_char": 19884, "end_char": 19894, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 19902, "end_char": 19930, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "18th or 19th August, 1951", "label": "DATE", "start_char": 20318, "end_char": 20343, "source": "ner", "metadata": {"in_sentence": "P-1 on September 5, 1951 and it-was, therefore, not likely that the appellant should have contacted Ram Lal Kapoor and Sidh Gopal on the 18th or 19th August, 1951."}}]}
{"document_id": "1966_3_744_810_EN", "year": 1966, "text": "NARFSH SHRIDHAR., MIRAJKAR AND ORS.\n\nl'.\n\nSTATE OF MAHARASHTRA AND ANR.\n\nMarch 3, 1966\n\n[P. B.\n\nGAJENDRAGADKAR, c. J., A. K. SARKAR,\n\nK. N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH, J. R. MUDHOLKAR, S. M. SUCRJ, R. S. BACllAWAT\n\nAND V. R.\\MASWAMI, JJ.).\n\nPractice ancl Procedure-Inherent jurisdiction of High Couri-Power to stop publication of proceedings of a trial-Order If violates fundamental right under Art. 19(1)(a)-lf amenabl.e to proceedings under Alll. 32 of the Constitution.\n\nIn a suit for defamation against the editor of a weekly newspaper, field on the original side of the High Court, one of the witnesses prayed that the Court may order that publicity should not be given to his evidence in the prOS$ as his business would be affected.\n\nAfter hearing arguments, the trial Judge passed an oral order prohibiting tho publication of the \"'idenee of the witness. A reporter of the weekly along with othor journalists moved this Court und-er Art. 32 challenging the validity of the order.\n\nIt was contended that : (i) the High O>urt did not have inherent power to pass the order; (ii) the impugned order violated the fundamental rights of the petitioners under Art. 19(1)(a); and (iii) tho order was amenable to the writ jurisdiction of this Court under Art. 32.\n\nHELD: (i) (Per Gajendragadkar C. J., Wanchoo, Mudho!kar, Sikri, Bachawat and Ramawami, JI.) : As the impugned order must be held te> prevent the publication of the evidence of the witness during the COUille of the trial and not thereafter. and the order was passed to help tho administration of justice for the purpC>SC of obtaining true evidence in the case. the order was within the inherent power of the High Court.\n\n[754 A-B; 759 CJ The High Cou't has inherent jurisdiction to hold a trial in camera if the ends of justice clcarll and necessarily require the adoption of such a course.\n\nSection 14 o the Official Secrets Act, 1923 in terms recognises the existence of such inherent powers in its opening clause, and s. 151, Code of Civil Procedure, saves the inherent power of the Hi&b Court to make such orders as may be necessary for the ends of justice or to prevent abu.so of the process of the Court.\n\nSuch a power includes the power to hold a part of the trial In camera or to prohibit \"<cessive publication of a part of rhe proceedings at such trial. [755 F:\n\n759 C, G; 760 CJ\n\nScott v. Scott, [1913) A.C. 417 and Moosbrugger v.\n\nMoosbrugger, (1912-13) 29 T.L.R. 658, referred to.\n\nPer Sarkar J. : The High Court has inherent power to prevent publication of the proceedings of a trial. The power to t publication of proceedinp is a facet of the power to hold a trial in camera ond slSm from it. [776 CJ\n\nScolt v. Scott (1913) A.C. 417, explained.\n\nH p,,. Shah J. : The Code of Civil Procedure contains no express provioion authorising the C'.ourt to bold its procecdinp In camera, but if\n\n' •\n\nSUPREME COURT REPORTS\n\n[1966] 3 S.C.R.\n\nFurther, the order is based on a good and valid law. The power to prohibit publication of proceedings is essentially the same as the power ID bold a trial in camer<1; and the law empowering a trial in camera is a valid law and does not , iolate the fundamental right in regard to liberty of speech because, the person restrained is legally prevented from entering the Court and hearing the proceedings, and the liberty of speech is affected only indirectly.\n\nMoreover, the Jaw empowering a Court to prohibit publication of iL< proCC<:dings is protected by Art. 19(2), because, the Jaw relates lo contempt of Court and the restriction is reasonable as it U. based on the principle that publication would interfere with tho course of justice and us due admini<tration. [777 EG; 778 C-E, GI\n\nThe Parbhani Transport Couper<Hive Society Lrd. v. RTA Aura1111abad, [1960) 3 S.C.R. and A. K. Gopa/a11 v. Srate, (1950] S.C.R. 88, followed.\n\nBudhan Chowdhry v. The State. (1955) I S.C.R. 1045, explained.\n\nPer Shah J. : Jurisdiction to exercise these powers which may affect righti of persons other than tho>e who are parties to the litigation is either expressly granted to the Court by the statute or arises from the necessity to regulate the course of proceedings so as to make them an effective instmment for the administration of justice.\n\nAn order made against a str3nger in aid of administration of justice between contending parties or for enforcement of iLs adjudication doe< not directly infringe any fundamental right under Art. 19 of the person affec!ed thereby, for it is founded either expressly or by necessary implication upon the nonu.istence of the right claimed.\n\nSuch a determmation of the disputed queat:on would be a• much exempt from the jurisdiction of his Court to grant relief againat infringement of a fundamental right under Art. 19, a determination of the disputed question between the partie.. on merih or on procedure. (803 C-D; F-HJ\n\nPer Bachawat J. : The Jaw empowering the High Court to restrain the publication of the report of its proceedings does not infringe Art. 19(1){a), because it affects the freedom of speech only incidentally and indirectly. (808 G, HJ\n\nA. K. Gopalmz v. Stare of Madras, [1950] S.C.R. 88 and Ram Singh v.\n\nS/Jlle, (1951) S.C.R. 451, followed.\n\nPer Hidayatullah J. (dissenting) : The order commih a breach of the fundamental right of freedom of speech and \"'preosion. (789 E; 792 A) The Chapter on Fundamental Righl• indicates that Judges acting in their judicial capacity were not inlcnded to be outaide the reach of ftllldamental rights. The word \"State\" in Arts. 12 and 13 includes \"Courts\" because. otherwise courh will be enabled to make rul.,; which take away or abridge fundamental rights, and a judicial decision ba.\"'<f on such a rule would also off~ fundamental rigbta.\n\nA Judge ordinarily decides controversies between\" the panies. in which controversies he does not figure, but occasion may arise collaterally where the matter may be between the Judge and the fundamental rights of any person by reason of tho Judge's action.\n\n(789 G-H; 790 A-B; 791 CJ Prem Chand Garg v. The Excise Commissioner, (1963) Supp. I S.C.R. 885, referred to. (iii) (Per Gajendragadkar C.J., Wanchoo, Mudholkar, Sikri and JWnuwami, JJ.) : The High Coun is a superior Court of Record and it iJ for it to consider whelhor any matter falls within ih jurisdiction or\n\n- ,.\n\nII ..-\n\nMIRAJKAR v. MAHARASHTRA 747\n\nA not. The order is a judicial order ancl if it is erroneous a perll<ln aggrieved by it, though a strauger, could move this Court under Art. 136 and the order can be corrected in appeal; but the question about the existence of the said jurisdiction as well as the validity or propriety ot\n\nthe order cannot be raised in writ proceedings under Art. 32.\n\n[770 H;\n\n772 EJ\n\n\nPrem Chand Garg v. Excise Commissioner, U.P. [1963] Supp. 1 S.C.R. 885, explained.\n\nPer Sarkar J. : This Court has no power to issue a certioratl to the.\n\nHigh Court. [782 HJ When the High Court has the power to issue the writ of certiorart', it is not, according to the fundamental principles of certiorari an inferior court or a court of limited jurisdiction.\n\nThe Constitution does not contemplate the High Courts to be inferior courts so that their decisions would be liable to be quashed by a writ of certiorari issued by the Supreme Court. [782 F-Hl Per Shah, J : In the matter of issue of a writ of certiorori against the order of any Court, in the context of the infringement of Fundament rights, even orders made by subordinate courts, such as the District Court or courts of subordinate Judge, are as much exempt from challenge in enforcement of an alleged fundamental right under Art. 19 by a petition under Art. 32 as orders of the High Court which is a superior Court of Record. It is not necessary to decide for the purpose of these petitions whether an order made by a High Court may infringe any of the rights guaranteed by Arts. 20, 21 & 22( 1) and may on that account form the subject-matter of a petition under Art. 32. Art. 19, on the one hand and Arts. 20, 21 & 22(1) are differently worded.\n\nArt. 19 protects personal freedoms of citizens against state action except whe1rc the action falls within the exceptions.\n\nArts. 20, 21 & 22 impose direct restrictions upon the power of authorities. [805 E-F; 806 C; 807 A, B; 808 A-Bl Per Bachawat J. : The High Court has jurisdiction to decide if it could restrain the publication of any document or information relating to the trial of a pending suit or concerning which the suit is brought.\n\nIf it erroneously assumes a jurisdiction not vested in it, its decision may be set aside in appropriate proceedings, but the decision is not open to attack under Art. 32 on the ground that it infringes the fundamental right under Art. 19(l)(a). If a stranger is prejudiced by an order forbidding the publication of the report of any proceeding, his proper course i• only to apply to the Court to lift the ban. [808 F; 810\n\nA-BJ Per Hidayatullah J. (dissenting) : Even assuming the impugned order means a temporary suppression of the evidence of the witness the trial Judge had no jurisdiction to pass the order.\n\nAs he passed no recorded order the appropriate remedy (in fact the only effective remedy) is to seek to quash 1he order by a writ under Art. 32. [792 E-F; 801 El There may be action by a Judge which may offend the fundamental righm under Arts. 14, 15, 19, 20, 21 and 22 and an appeal to this Court will not only be not practicable but will also be an ineffective remedy and this Court can issue a writ to the High Court to quash its order, under Art. 32 of the Constitution.\n\nSince there is no exception in Art. 32 in respect of the High Courts there is a presumption that the High Courts are not excluded. Even with the enactment of Art. 226 the power which is coofed on the High Courts is not in every sen.<e a coordinate power and the impl'cation of reading Arts. 32, 136 and 226 together is\n\nSUPREME\n\nCOURT\n\nREPORTS [1966] 3 s.c.R.\n\nthat there is no sharing of the powers to is.rue the prerogative writs po&'lessed A by this Coun. Under the total scheme of the Constitution the subordination of the High Courts to the Supreme Court is not only evident but is logical. [794F; 797 G-H; 799 D-E]\n\nORIGINAL Jl'RISDJCTION ; W.Ps. Nos. 5 and 7 to 9 of 1965.\n\nPetition under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights.\n\nM. C. Scta/vad, R. K. Garg, R. C. Agarwal, D. i'. Singh and M. K. Ramamurthi, for petitioner (in W.P. No. 5 of 1965).\n\nA. K. Sen, R. K. Garg, S. C. Agrawal, D. P. Singh and M. K.\n\nRamamurthi, for the petitioner (in W.P. r\\o. 7 of 1965). c\n\nV. K. Krishna Menon, R. K. Garg, S. C. Agrawal, D. P. Singh and M. K. Ramamurthi, for the petitioner (in W.P. No. 8 of 1965}.\n\nN. C. Chatterjee, R. K. Garg, S. C. Agrawal, D. P. Singh, and M. K. Ramamurthi, for the petitioners (in W. P. No. 9 of 1965).\n\nC. K.\n\nDaphtary, Attorney-General, B. R. L. Iyengar and D B. R. G. K. Achar, for the respondents (in all the petitions).\n\nThe Judgment ofGAJl'NDRAGADKAR C.J., WANCHOO, MumlOL- KAR, S!KRI and RAMASWAMJ, JJ. was delivered by GAJF.NDRA- GADKAR C.J. SARKAR, SHAH and BACHA WAT JJ. delivered separate Opinions.\n\nHIDAYATUl.LAH, J. delivered a dissenting Opinion.\n\nGajendragadkar, C.J. The petitioner in Writ Petition No. 5 of 1965-Naresh Shridhar Mirajkar, who is a citizen of India, serves as a Reporter on the Staff of the English Weekly \"Blitz\", published in Bombay and edited by Mr. R. K. Karanjia.\n\nIt appears that Mr. Krishnaraj M. D. Thackersey sued Mr. R. K. Karanjia (Suit No. 319 of 1960) on the Original Side of the Bombay High Court, and claimed Rs. 3 lakhs by way of damages for alleged malicious libel published in the Blitz on the 24th September, 1960, under the caption \"Scandal Bigger Than Mundhra\". This suit was tried by Mr. Justice Tarkunde.\n\nOne of the allegations which had been made in the said article was to the effect that China Cotton Exporters, of which Mr.\n\nThackersey was a partner, had obtained licences for import of art silk yarn on condition that the same would be sold to handloom weavers only; and that in order to sell the said silk yam in the black market with a view to realise higher profits, three bogus handloom factories were created on paper and bills and invoices were made with a view to create the impression that the condition on which the licences had been granted to China Cotton Exporters, had been complied with.\n\nMr. Thackersey's concern had thus sold the said yarn in the black-market and thereby concealed from taxation\n\n• ---\n\nMIRAJKAR v. MAHARASHTRA (Gajendragadkar, C.J.) 74!!\n\nA the large profits made in that behalf. These allegations purported to be based on the papers filed in Suits Nos. 997 and 998 of 1951 which had been instituted by China Cotton Exporters against National Handloom Weaving Works; Rayon Handloom Industries, and one Bhaichand G. Goda. The said Bhaichand G. Goda was alleged to have been the guarantor in respect of the transactions B mentioned in the said suits.\n\nThe said Bhaichand Goda had, in the course of insolvency proceedings which had been taken out in execution of the decrees passed against him, made an affidavit which seemed to support the main points of the allegations made by the Blitz in its article \"Scandal Bigger Than Mundhra\".\n\nDuring the course of the trial, the said Bhaichand Goda was called as a defence witness by Mr. Karanjia. In the witness-box, Mr. Goda feigned complete ignorance of the said transactions; and under protection given to him by the learned Judge who was trying the action, he repudiated every one of the allegations he had made against Mr. Thackersey's concern in the said affidavit. Thereupon, Mr. Karanjia applied for permission to cross-examine Mr.\n\nGoda and the said permission was granted by the learned Judge.\n\nAccordingly, Mr. Goda came to be cross-examined by Mr. Karanjia's counsel.\n\nLater, during the course of further proceedings, it was discovered that Mr. Goda had made several statements before the Income-tax authorities in which he had reiterated some of the statements made by him in his affidavit on which he was crossexamined. From the said statements it also appeared that he had alleged that in addition to the invoice price of the transactions in question, he had paid Rs. 90,000/- as \"on money\" to China Cotton Exporters. As a result of the discovery of this material, an application was made by Mr. Karanjia before the learned Judge for permission to recall Mr. Goda and confront him with the statements which he had made before the Income-tax authorities. The learned Judge granted the said application.\n\nOn Friday, the 23rd October, 1964, Mr. Goda stepped into the witness-box in pursuance of the order passed by the learned Judge that he should be recalled for further examination. On that occasion he moved the learned Judge that the latter should protect him against his evidence being reported in the press. He stated that the publication in the press of his earlier evidence had caused loss to him in business; and so, he desired that the evidence which be had been recalled to give should not be published in the papers. When this request was made by Mr. Goda, arguments were addressed before the learned Judge and he orally directed that the evidence of Mr. Goda should not be published. It was pointed out to the learned Judge that the daily press, viz., 'The Times of India' and\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n[ 1966] 3 S.C.R.\n\n'The Indian Express' gave only brief accounts of the proceedings before the Court in that case, whereas the 'Blitz' gave a full report of the said proceedings. The learned Judge then told Mr. Zaveri, Counsel for Mr. Karanjia that the petitioner who was one of the reporters of the 'Blitz' should be told not to publish reports of Mr.\n\nGoda's evidence in the 'Blitz'. The petitioner had all along been reporting the proceedings in the said suit in the columns of the 'Blitz'.\n\nOn Monday, the 26th October, 1964, Mr. Chari appeared for Mr. Karanjia and urged before the learned Judge that the fundamental principle in the administration of justice was that it must be open to the public and that exceptions to such public administration of justice were rare. such as that of a case where a child is a victim of a sexual offence, or of a case relating to matrimonial matters where sordid details of intimate relations between spouses are likely to come out, and proceedings in regard to official secrecy.\n\nMr. Chari further contended that no witness could claim protection from publicity on the ground that if the evidence is published it might adversely affect his business.\n\nMr. Chari, therefore, challenged the correctness of the said order and alternatively suggested to the learned Judge that he should pass a written order forbidding publication of Mr. Goda's evidence. The learned Judge, however, rejected Mr. Chari's contentions and stated that he had already made an oral order forbidding such publication, and that no written order was necessary.\n\nHe added that he expected that his oral order would be obeyed.\n\nThe petitioner felt aggrieved by the said oral order passed by Mr. Justice Tarkunde and moved the Bombay High Court by a Writ Petition No. 1685 of 1964 under Art. 226 of the Constitution.\n\nThe said petition was, however, dismissed by a Division Bench of the said High Court on the 10th November, 1964 on the ground that the impugned order was a judicial order of the High Court and was not amenable to a writ under Art. 226. That is how the petitioner has moved this Court under Art. 32 for the enforcement of his fundamental rights under Art. 19(1)(a) and (g) of the Constitution.\n\nAlong with this petition, three other petitions have been filed in this Court; they are Writ Petitions Nos. 7, 8 and 9 of 1965.\n\nMr.\n\nP. R. Menon, Mr. M. P. Iyer, and Mr. P. K. Aire, the three petitioners in these petitions respectively, arc Journalists, and they have also challenged the validity of the impugned order and have moved this Court under Art. 32 of the Constitution for enforcement of their fundamental rights under Art. J9(1)(a) and (g). It appears that these three petitioners were present in court at the time when the impugned order was passed and they were directed not to publish the evidence given by Mr. Goda in their respective papers.\n\n\n(1%6)JSCR\n\nor indirectly. In A.K. Gopalan v. 711e S1are of Madras( 1), Kania C. J., had occasion to consider the validity of the argument that the preventive detention order results in the detention of the applicant in a cell, and so, it contravenes his fundamental rights guaranteed by Art. 19(1) (a), (b), (c), (d), (e) and (g).\n\nRejecting this argument, the learned Chief Justice observed that the true approach in dealing with such a question is only to consider the directness of the legislation and not what will\n\nbe the result of the detention otherwise valid, on the mode of the detenu's life. On that ground alone, he was inclined to reject the Cl1ntention that the order of detention contravened the fundamental rights guaranteed to the petitioner under Art. 19(1). fie thought that any other construction put on the article Wl1uld be unreasonable.\n\nIt is true that the opinion thus expressed by Kania, C. J., in the case of A. K. Gopalan(') had not received the concurrence of the other learned Judges who heard the said case. Subsequently, however, in Ram Singh and Others v.\n\nThe State of Delhi a11d Another(i), the said observations were cited with approval hy the Full Court. The same principle has been accepted hy this Court in Express Newspapers (Private) Ltd., and Anr. v.\n\nThe Union of India and Oth11rs('), and by the majority judgment in Atiabari Tea Co., Ltd. v. The State of Assam and Other.<(4).\n\nIf the test of direct effect and object which is sometimes described as the pith and substance test, is thus applied in considering the validity of legislation, it would not be inappropriate to apply the same test to judicial decisions like the one with which we are concerned in the present proceedings. As we have already indicated, the impugned order was directly concerned with giving such protection to the witness as was thought to be necessary in order to obtain true evidence in the case with a view to do justice between the parties. If, incidentally, as a result of this order, the petitioners were not able to report what they heard in court, that cannot be said to make the impugned order invalid under Art. 19 (l)(a). It is a judicial order passed by the Court in exercise of its inherent jurisdiction and its sole purpose is to help the administration of justice. Any incidental consequence which may flow from the order will not introduce any constitutional infirmity in it.\n\nIt is, however, urged by Mr. Setalvad that this Court has held in Budhan Clzoudhry and Others v.\n\nThe State of Bihar(S) that judicial orders based on exercise of judicial discretion may contravene Art. I 4 and thereby become invalid.\n\nHe contends that just as a judiciul order would become invalid by reason of the fact\n\n. (1):-19~0) s:C.R. ss:loJ.--··\n\n(2) [19St) S.C.R. 4ll, 456.\n\n(3) [19S9] S CR. ll. 129, 130.\n\n(4) [1961} I S.C.R. 8v9, 864. (ll [19llj I S.C.R. IO~S.\n\nD /\n\n• •\n\nMIRAJKAR v. MAHARASHTRA (Gajendragadkar, C.J.) 763\n\nA that it infringes the fundamental right guaranteed by Art. 14, so would the impugned order in the present case be invalid because it contravenes Art. 19(1). It is, therefore, necessary to examine whether this contention is well-founded.\n\nIn the case of Budhan Chaudhry('), the matter had come to this Court by way of appeal under Art. 132(1) of the Constitution. The appellants bad been tried by a Magistrate, !st Class, exercising powers under s. 30 of the Code of Criminal Procedure on charges under ss. 366 and 143 of the Indian Penal Code, and each one of them was convicted under both the sections and sentenced to rigorous imprisonment for five years under s. 366, whereas no separate sentence was imposed under s. 143. They then challenged the correctness and validity of the order of their conviction and sentence by preferring an appeal before the Patna High Court.\n\nThe appeal was first heard by a Bench consisting of S. K. Das and C. P. Sinha, JJ. There was, however, a difference of opinion betweeu the two learned Judges as to the constitutionality of s. 30, Cr. P.C.\n\nDas, J. took the view that the impugned section did not bring about any discrimination, whereas Sinha, J. was of the opinion that the impugned section was hit by Art, 14. The appeal was then heard by Reuben, C. J., who agreed with Das, J., with the result that the order of conviction and sentence passed against the appellants was confirmed. The appellants then obtained a certificate from the said High Court under Art. 132 (!) and with that certificate they came to this Court.\n\nNaturally, the principal contention which was urged on their behalf before this Court was thats. 30, Cr.P.C. infringed the fundamental right guaranteed by Art. 14, and was, therefore, invalid.\n\nThis contention was repelled by this Court. Then, alternatively, the appellants argued that though the section itself may not be discriminatory, it may lend itself to abuse bringing about a discrimination between persons accused of offences of the same kind, for the police may send up a person accused of an offence under s. 366 to a section 30 Magistrate and the police may send another person accused of an offence under the same section to a Magistrate who can commit the accused to the Court of Session. This alternative contention was examined and it was also rejected. That incidentally raised the question as to whether the judicial decision could itself be said to offend Art. 14. S. R. Das, J., as he then was, who spoke for the Court, considered this contention, referred with approval to the observations made by Frankfurter, J., and Stone, C.J., of .iie Supreme Court of the United States in Snowden v. Hughes(2), and observed that the judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may not\n\n0) [1955] I S.C.R. 1045.\n\n(2) (19'W) 321 U.S. I; 88 L.ed. 497.\n\nSUPREME COURT lll!POllTS\n\n[1966) 3 S.C.R\n\nnecessarily amount to a denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful discrimination. Having made this observation which at best may be said to assume that a judicial decision may conceivably contravene Art. 14, the learned Judge took the precaution of adding that the discretion of judicial officers is not arbitrary and the law provides for revision by superior Courts of orders passed by the subordinate Courts. In such circumstances, there is hardly any ground for apprehending any capricious discrimination by judicial tribunals.\n\nIt is thus clear that though the observations made by Frank furter, J. and Stone, C. J. in Snowden v.\n\nHughes(!) had been cited with approval, the question as to whether a judicial order can attract the jurisdiction of this Court under Art. 32(1) and (2) was not argued and did not fall to be considered at all. That question became only incidentally relevant in deciding whether the validity of the conviction which was impugned by the appellants in the case of Budhan Chaudhry and Others(2) could be successfully assailed on the ground that the judicial decision under s. 30, Cr.\n\nP. C. was capriciously rendered against the appellants. The scope of the jurisdiction of this Court in exercising its writ jurisdiction in relation to orders passed by the High Court was not and could not have been examined, because the matter had come to this Court in appeal under Art. 132(1); and whether or not judicial decision can be said to affect any fundamental right merely because it incidentally and indirectly may encroach upon such right, did not therefore call for consideration or decision in that case. In fact, the closing observations made in the judgment themselves indicate that this Court was of the view that if any judicial order was sought to be attacked on the ground that it was inconsistent with Art. 14, the proper remedy to challenge such an order would be an appeal or revision as may be provided by law. We are, therefore, not prepared to accept Mr. Setalvad's assumption that the observations on which he bases himself support the proposition that according to this Court, judicial decisions rendered by courts of competent jurisdiction in or in relation to matters brought before them can be assailed on the ground that they violate Art. 14. It may in cidentally be pointed out that the decision of the Supreme Court of the United States in Snowden v. Hughes(l)was itself not concerned with the validity of any judicial decision at all.\n\nOn the other hand, in The Parbhani Transport Co-opera/ire Society Ltd.\n\nv. The Regional Transport Authority, Aurangabad .and Others,(l), Sarkar, J. speaking for the Court, has observed that the decision of the Regional Transport Authority which was challenged before the Court may have been right or wrong, but that they\n\n(I) 321 U.S. I.\n\n(2) (t955J t S.C.R. t045.\n\n(3) (1960] 3 S.C.R. tn.\n\n) -\n\n_ _,,\n\n>, r\n\nMIRAJXAR v. MAHARASHTRA (Gajendragadkar, C.J.) 765\n\nwere unable to see how that decision could offend Art. 14 or any other fundamental right of the petitioner. The learned Judge further observed that the Regional Transport Authority was acting as a quasi judicial body and if it has made any mistake in its decision there are appropriate remedies available to the petitioner for obtaining relief. It cannot complain of a breach of Art. 14. It is true that in this case also the larger issue as to whether the orders passed by quasi judicial tribunals can be said to affect Art. 14, does not appear to have been fully argued. It is clear that the observations made by this Court in this case unambiguously indicate that it would be inappropriate to suggest that the decision rendered by a judicial tribunal can be described as offending Art. 14 at all. It may be a right or wrong decision, and if it is a wrong decision it can be corrected by appeal or revision as may be permitted by Jaw, but it cannot be said per se to contravene Art. 14. It is significant that these observations have been made while dealing with a writ petition filed by the petitioner, the Parbhani Transport Co-operative Society Ltd. under Art. 32; and in so far as the point has been considered and decided the decision is against Mr. Setalvad's '- , D contention.\n\nIn support of his argument that a judicial decision. can be corrected by this Court in exercise of its writ jurisdiction under Art. 32(2), Mr. Setalvad has relied upon another decision of this Court in Prem Chand Garg v. Excise Commissioner, U.P. Allahabad(e).\n\nIn that case, the petitioner Prem Chand Garg had been required to furnish security for the costs of the respondent under r. 12 of 0 XXXV of the Supreme Court Rules. By his petition filed under Art. 32, he contended that the rule was invalid. as it placed obstructions on the fundamental right guaranteed under Art. 32 to move the Supreme Court for the enforcement of fundamental rights.\n\nThis plea was upheld by the majority decision with the result that the order requiring him to furnish security was vacated. In appreciating the effect of this decision, it is necessary to bear in mind the nature of the contentions raised before the Court in that case.\n\nThe Rule itself, in terms, conferred discretion on the Court, while dealing with applications made under Art. 32, to impose such terms as to costs and as to the giving of security as it thinks fit. The learned Solicitor-General, who supported the validity of the Rule, urged that though the order requiring security to be deposited may be said to retard or obstruct the fundamental right of the citizen guaranteed by Art. 32(1), the Rule itself could not be effectively challenged as invalid, because it was merely discretionary; it did not impose an obligation on the Court to demand any security; and he supplemented his argument by contending that under Art. 142 of the Constitution, the powers of this Court were wide enough to impose any term or condition subject to which proceedings before\n\n(I) [1963] Supp. I S.C.R. 885.\n\n766 SUPRl!MI! COURT REPOJlTS\n\n[1966] 3 ~.CR\n\nthis Court could he pcrmined to be conducted. He suggested that the powers of this Court under Ari. 142 were not subject to any of the provisions contained in Part lJI including Art. 32( I).\n\nOn the other hand, Mr. Pathak who challenged the validity of the Rule, urged that though the Rule was in form and in substance discretionary, he disputed the validity of the power which the Rule conferred on this Court to demand security. According to Mr. Pathak, Art. 142 had lo be read subject to the fundamental right guaranteed under Art. 32; and so, when this Court made Rules by virtue of the powers conferred on it by Art. 145, it could not make any Rule on the basis that it could confer a power on this Court to demand security from a party moving this Court under Art. 32(1), because such a term would obstruct his guaranteed fundamental right. It is on these contentions that one of the points which had to be decided was whether Art. 142 could be said to override the fundamental rights guaranteed by Part III. The majority view of this Court was that though the powers conferred on this Court by Art. 142 were very wide, they could not be exercised against the fundamental rights guaranteed by the Constitution, not even against definite statutory provisions. Having reached this decision, the majority decision was that though the Rule was discretionary, the power to demand security which it purported to confer on the Court in a given case, was itself inconsistent with the fundamental right guaranked by Art. 32(1) and as such, the Rule was bad. The minority view differed in that matter and held that the Rule was not invalid.\n\nIt would thus be seen that the main controversy in the case of Prem Chand Garg(') centered round the question as to whether Art. 145 conferred powers on this Court to make Rules, though they may be inconsistent with the constitutional provisions prescribed by Part Ill. Once it was held that the powers under Art. 142 had to be read subject not only to the fundamental rights, but to other binding statutory provisions, it became clear that the Ruic which authorised the making of the impugned order was invalid. It was in that context that the validity of the order had to be incidentally examined. The petition was made not to challenge the order as such, but to challenge the validity of the Rule under which the order was made. Once the Rule was struck down as being invalid. the order passed under the said Rule had to be vacated. It is difficult to see how this decision can be pressed into service by Mr.\n\nSetalvad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself.\n\nWhat was held by this Court was that Rule made by it under its powers conferred by Art. 145 which are legislative in eharacter, was invalid; but that is quite another matter.\n\nIt is plain that if a party desires to challenge any of the Rules framed by this Court in exercise of its powers under Art. 145 on\n\n(l) (1963} Supp. l S.C.R. 885.\n\n,..... __ _\n\n• < •\n\n' D\n\nMIRAJKAR v. MAHARASHTRA (Gajendragadkar, C.l.) 767\n\nthe ground that they are invalid, because they illegally contravene his fundamental rights, it would be open to the party to move this Court under Art. 32. Such a challenge is not against any decision of this Court, but against a Rule made by it in pursuance of its rule-making power. If the Rule is struck down as it was in the case of Prem Chand Garg('), this Court can review or recall its order passed under the said Rule. Cases in which initial orders of security passed by the Court are later reviewed and the amount of security initially directed is reduced, frequently arise in this Court; but they show the exercise of this Court's powers under Art. 137 and not under Art. 32. Therefore, we are not satisfied that Mr.\n\nSetalvad is fortified by any judicial decision of this Court in raising the contention that a judicial order passed by the High Court in or in relation to proceedings brought before it for its adjudication, can become the subject-matter of writ jurisdiction of this Court under Art. 32(2). Jn fact, no precedent has been cited before us which would support Mr. Setalvad's claim that a judicial order of the kind with which we are concerned in the present proceedings has ever been attempted to be challenged or has been set aside under Art. 32 of the Constitution.\n\nIn this connection, it is necessary to refer to another aspect of the matter, and that has relation to the nature and extent of this Court's jurisdiction to issue writs of certiorari under Art. 32(2) Mr. Setalvad has conceded that if a court of competent jurisdiction makes an order in a proceeding before it, and the order is inter-partes, its validity cannot he challenged by invoking the jurisdiction of this Court under Art. 32, though the said order may affect the aggrieved party's fundamental rights.\n\nHis whole argument before us has been that the impugned order affects the fundamental rights of a stranger to the proceedings before the Court; and that, he contends, justifies the petitioners in moving this Court under Art. 32. It is necessary to examine the validity of this argument.\n\nIt is well-settled that the powers of this Court to issue writs of certiorari under Art. 32(2) as well as the powers of the High Courts to issue similar writs under Art. 226 are very wide. In fact, the powers of the High Courts under Art. 226 are, in a sense, wider than those of this Court, because the exercise of the powers of this Court to issue writs of certiorari are limited to the purposes set out in Art. 32( l ). The nature and the extent of the writ jurisdiction conferred on the High Courts by Art. 226 was considered by this Court as early as 1955 in T.C. Basappa v. T. Nagappa and Anr.(2). It would be useful to refer to some of the points elucidated in this judgment. The first point which was made clear by Mukherjea, J., who spoke for the Court, was that \"in view of the express provisions in our Constitution, we need not now look back\n\n(I) [1963] Supp. I S.C.R. 885.\n\n(2) [1955] I S.C.R. 250, at pp. 256-8.\n\n\n[I 966] 3 S.C.R.\n\nto the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundament:t! principles that regulate the exercise of jurisdiction in the mah er of granting such writs in English law.\"\n\nOne of the essential features of the writ, according to Mukherjea, J .. is \"that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari, the superior Court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The supervision of the superior Court exercised through writs of urtiorari goes to two points, one is the area of inferior juri•diction and the qualifications and conditions of its exercise; the other is the ollliervancc of law in the course of its exercise. Certiorari may lie and is generally granted when a Court bas acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances. When the jurisdiction of the Court depends upon the existence of some collateral fact, it is well-settled that the Court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess.\" It is in the light of these principles which have been consistently followed by this Court in dealing with the problem relating to the exercise of the writ jurisdiction by the High Courts under Art. 226 or by this Court under Art. 32, that we must now proceed to deal with the point before us.\n\nThe scope of the jurisdiction of this Court in dealing with writ petitions under Art. 32 was examined by a Special Bench of this Court in Smt. Ujjam Bai v. State of Uttar Pradesh(')· This decision would show that it was common ground before the Court that in three classes of cases a question of the enforcement of the fundamental rights may arise; and if it docs arise, an application under Art. 32 will lie. These cases are: (I) where action is taken under a statute which is ultra vires the Constitution; (2) where the statute is intra rires but the action taken is without jurisdiction; and (3) where the action taken is procedurally ultra vires as where a quastjudicial authority under an. oligation to act udiially passes an order in violation of the prmc1ples of natural JUSttcc.\n\n(I) (1963] I S.C.R. 778.\n\n1 • D\n\nMIRAJKAR v. MAHARASHTRA ( Gajendragadkar, C.J.) 7 6f)·\n\nAccording to the majority decision in the case of Ujjam Bai,(1} it appears that where a quasi-judicial authority makes an order in the undoubted exercise of its jurisdiction in pursuance of a provision of law which is intra vires, an error of law or fact committed by that authority cannot be impeached otherwise than on appeal, unless the erroneous determination relates to. a matter on which the jurisdiction of that body depends, and the relevant law does not confer on that body jurisdiction to determine that matter.\n\nThis last category of cases often arise in relation to tribunals which have been given jurisdiction to try certain issues under certain conditions. It is only if the condition prescribed by the statute is. satisfied that the tribunal derives jurisdiction to deal with the matter.\n\nProof of such a condition is regarded as the proof of a collateral• fact, and an erroneous decision of the tribunal as to the existence of this collateral fact is not regarded as binding on the parties and can be challenged by a writ proceeding under Art. 226.\n\nBut in cases where the Tribunal is given jurisdiction to deal with certain matters, then its decision on those matters cannot be regarded as a decision on collateral facts. This aspect of the matter came to be considered by a Special Bench of this Court in M/s. Kamala Mills Ltd. v. The State of Bombay(') and there it has been held that the appropriate authority set up under the relevant Sales-tax Act had been given jurisdiction to determine the nature of the transaction and to proceed to levy a tax in accordance with its decision on the first issue, and so, the decision of the said authority on the first iss_ue cannot be said to be a decision on a collateral issue, and even if the said issue is erroneously determined by the said authority, the tax levied by it in accordance with its decision cannot be said to be without jurisdiction.\n\nIn Aniyoth Kunhamina Umma v. Ministry of Rehabilitation and Others,(') the petitioner had moved this Court under Art. 32 contending that her fundamental rights under Art. 19(l)(f) and Art. 31 were infringed by the order of the Assistant Custodian which had declared that the husband of the petitioner was an evacuee and his property was evacuee property. The petitioner had appealed to the Deputy Custodian against the said order, and when she failed before the Deputy Custodian, she had moved the Custodian-General by revision; but the said revision application also was dismissed. At this stage, she moved this Court under Art. 32. This Court rejected her petition on the ground that it was incompetent as no question of violation of any fundamental right arose in the case. The decision of the authority of competent jurisdiction, it was held, had negatived the existence of the legal right alleged by the petitioner. and unless the decision was held to be a nullity or could be otherwise got rid of, the petitioner could not complain of any\n\n\n[1966] 3 S.C.R\n\ninfringement of a fundamental right.\n\nThe main questions were whether the petitioner'~ husband was an evacuee or not, and whether his property was evacuee property or not.\n\nThe decision of those .questions had become final, and no lack of jurisdiction was involved.\n\nWhile referring to the decision of this Court in the case of Smt. .Ujjam Bai( 1 ), we have already indicated that it was not disputed before the Court in that case that where the action taken against a\n\nitizen is procedurally ultra l'ire.1, the aggrieved party can move this <:ourt under Art. 32.\n\nAs an illustration, we may refer to the decision of this Court in Sinha <iol'indii v. The Dep111y Chief Comrolla -0/ Imports and Exports and 01/zer.1i 2).\n\nIn that case, the Court was -satisfied that there was a clear violation of the requirements of clause\n\n10 of the Imports (Control) Order, 1955, which embodied the principles of natural justice, and that made the impugned orders constitutionally invalid.\n\nThat is how the jurisdiction 1lf this Court 'Jnder Art. 32 can be invoked if the impugned order has been pa, sed\n\nby adopting a procedure which is 11/1ra l'ires.\n\nWe have referred to these decisions to illustrate how the juris- <liction to issue writs of certiorari has heen exercised either by the High Courts under Art. 226 or by this Court under Art. 32. Bearing these principles in mind, let us enquire whether the order impugned in the present proceedings can be said to be amenable to the juris- -Oiction of this Court under Art. 32.\n\nWe have already seen that the impugned order was p; issed by the learned Judge after hearing the parties and it \\\\'aS passed presumably because he was satisfied that the ends of justice required that Mr. (loda should he given protection by prohibiting the publication of his evidence in the newspapers during the course of the trial. This matter was directly related lo the trial of the suit; and in exercise of his inherent power, the learned Judge made the order in the interests of justice. The order in one sense is inter-partes, because it was passed after hearing arguments on both the sides.\n\nIn another sense, it is not inter-partes inasmuch as it prohibits strangers like the petitioners from publishing Mr. Goda's evidence in the newspapers.\n\nIn fact, an order of this kind would always be passed after hearing parties before the Court and would in every case uffect the right of strangers hke the petitioners who, as Journalists, are interested in publishing court proceedings in newspapers. Can it be said that there is such a difference between normal orders passed inter-partes in judicial proceedings, and the present order that it should be open to the strangers are who affected by the order to move this Court under Art. 327. The -0rder, no doubt, binds the strangers; but, nevertheless, it is a judicial -0rder and a person aggrieved by it, though a stranger, can move\n\nthis Court by appeal under Art. 136 of the Constitution. Principes . -0f Res judicata have been applied by this Court in dealing with\n\n·--·---- ·--\n\n(!) [19631 I S.C.R. 778.\n\n(1) lt962] t S.C.R. 541.\n\nII.\n\nMIRAJKAR v. MAHARASHTRA (Gajendragadkar, C.J.) 771\n\npetitions filed before this Court under Art. 32 in Daryao and Others v. The State of U. P. and Others('). We apprehend that somewhat similar considerations would apply to the present proceedings. If a judicial order like the one with which we are concerned in the present proceedings made by the High Court binds strangers, the strangers may challenge the order by taking appropriate proceedings in appeal under Art. 136. It would, however, not be open to them to invoke the jurisdiction of this Court under Art. 32 and contend that a writ of certiorari should be issued in respect of it. The impugned order is passed in exercise of the inherent jurisdiction of the Court and its validity is not open to be challenged by writ proceedings.\n\nThere is yet another aspect of this matter to which it is necessary to refer. The High Court is a superior Court of Record and under Art. 215, shall have all powers of such a Court of Record including the power to punish contempt of itself. One distinguishing characteristic of such superior courts is that they are entitled to consider questions of their jurisdiction raised before them. This question fell to be considered by this Court in Special Reference No. I of.1964('). In that case, it was urged before this Court that in granting bail to Keshav Singh, the High Court bad exceeded its jurisdiction and as such, the order was a nullity. Rejecting this argument, this Court observed that in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction. That is why this Court did not accede to the proposition that in passing the order for interim bail, the High Court can be said to have exceeded its jurisdiction with the result that the order in question was null and void. In support of this view, this Court cited a passage from Halsbury's Laws of England where it is observed that \"prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court.\"(') If the decision of a superior Court on a question of its jurisdiction is erroneous, it can, of course, be corrected by appeal or revision as may be permissible under the law; but until the adjudication by a superior Court on such a point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ jurisdiction of this Court.\n\nThe basis of Mr. Setalvad's argument is that the impugned order is not an order inter-partes, as it affects the fundamental rights\n\n(I) [1962] I S.C.R. 574.\n\n(2) [1965] I S.C.R. 413 at p. 499.\n\n(3) Halsbury's Laws of England, Vol. 9, p.349.\n\n\n( 1966) 3 S.C.R.\n\nof the strangers to the litigation, and that the said order is without jurisdiction. We have already held that the impugned order cannot be said to affect the fundamental rights of the petitioners and that though it is not inter-partes in the sense that it affects strangers to the proceedings, it has been passed by the High Court in relation to a matter pending before it for its adjudication and as such, like other judicial orders passed by the High Court in proceedings pending before it, the correctness of the impugned order can be challenged only by appeal and not by writ proceedings. We have also held that the High Court has inherent jurisdiction to pass such an order.\n\nBut apart from this aspect of the matter, we think it would be inappropriate to allow the petitioners to raise the question about the jurisdiction of the High Court to pass the impugned order in proceedings under Art. 32 which seek for the issue of a writ of certiorari to correct the said order. If questions about the jurisdiction of superior courts of plenary jurisdiction to pass orders like the impugned order are allowed to be canvassed in writ proceedings under Art. 32, logically, it would be difficult to make a valid distinction between the orders passed by the High Courts inter-partes, and those which are not inter-partes in the sense that they bind strangers to the proceedings. Therefore, in our opinion, having regard to the fact that the impugned order has. been passed by a superior Court of Record in the exercise of its inherent powers, the question about the existence of the said jurisdiction as well as the validity or propriety of the order cannot be raised in writ proceedings taken out by the petitioners for the issue of a writ of certiorari under Art. 32.\n\nWhilst we are dealing with this aspect of the matter, we may incidentally refer to the relevant observations made by Halsbury on this point. \"In the case of judgments of inferior courts of civil jurisdiction,\" says Halsbury in the footnote, \"it has been suggested that certiorari might be granted to quash them for want of jurisdiction [Kemp v. Baine (1844), I Dow. & L. 885, at p. 887], inasmuch as an error did not lie upon that ground. But there appear!\n\nto he no reported case in which the judgment of an inferior court of civil jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground.\"(') The ultimate proposition is set out in the terms: \"Certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction.\" These observations would indicate that in England the judicial orders passed by civil courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari.\n\nIn Rex. v. Chancellor of St. Edmundsburry and Ipswich Diocese Ex parte White.(2) th.:_ __ question which arose was whether certio-\n\n(1) Halsbury La•s of En, lmrd Vol. 11, pp. 129. 130.\n\n(2) 11945] I K.B.D 195 t pp. 2J5-216.\n\n.. c\n\nMIRAJKAR v. MAHARASHTRA (Gajendragadkar, C.J.) 773\n\nrari would lie from the Court of King's Bench to an ecclesiastical Court: and the answer rendered by the Court was that certiorari would not lie against the decision of an ecclesiastical court. In dealing with this question, Wrottesley, L. J. has elaborately considered the history of the writ jurisdiction and has dealt with the question about the meaning of the word \"inferior\" as applied to courts of law in England in discussing the problem as to the issue of the writ in regard to decisions of certain courts. \"The more this matter was investigated,\" says Wrottesley, L. J., \"the clearer it became that the word \"inferior\" as applied to courts of law in England had been used with at least two very different meanings. If, as some assert, the question of inferiority is determined by ascertaining whether the court in question can be stopped from exceeding its jurisdiction by a writ of prohibition issuing from the King's Bench, then not only the ecclesiastical Courts, but also Palatine courts and Admiralty courts are inferior courts. But there is another test, well recognised by lawyers, by which to distinguish a superior from an inferior court, namely, whether in its proceedings, and in particular in its judgments, it must appear that the court was acting within its jurisdiction. This is the characteristic of an inferior court, whereas in the proceedings of a superior court it will be presumed that it acted within its jurisdiction unless the contrary should appear either on the face of the proceedings or aliunde.\" Mr. Sen relied upon this decision to show that even the High Court of Bombay can be said to be an inferior court for the purpose of exercising jurisdiction by this Court under Art. 32(2) to issue a writ of certiOrari in respect of the impugned order passed by it. We are. unable to see how this decision can support Mr. Sen's contentions.\n\nWe are, therefore, satisfied that so far as the jurisdiction of this Court to issue writs of certiorari is concerned, it is impossible to accept the argument of the petitioners that judicial orders passed by High Courts in or in relation to proceedings pending before them, are amenable to be corrected by exercise of the said jurisdiction. We have no doubt that it would be unreasonable to attempt to rationalise the assumption of jurisdiction by this Court under Art. 32 to correct such judicial orders on the fanciful hypothesis that High Courts may pass extravagant orders in or in relation to matters pending before them and that a remedy by way of a writ of certiorari should, therefore, be sought for and be deemed to be included within the scope of Art. 32. The words used in Art. 32 are no doubt wide; but having regard to the considerations which we have set out in the course of this judgment, we are satisfied that the impugned order cannot be brought within the scope of this Court's jurisdiction to issue a writ of certiorari under Art. 32; to hold otherwise would be repugnant to the well-recognised limitatio111\n\n7i I SuPREME COURT REPORTS\n\n( 1966] 3 S.CR.\n\nwithin which the jurisdiction to issue writs of ceriiorari can be cxer- A cised and inconsistent with the uniform trend of this Court's decisions in relation to the said point.\n\nThe result is, the petitions fail and are dismissed. There would he no order as to costs.\n\nSarkar, J. Tarkunde J. of the High Court at Bombay, while hearing a suit in the exercise of the ordinary original civil jurisdiction of that Court, passed an order prohibiting publication of a part of the proceedings. The four petitioners, who are reporters and othenvise connected with newspapers, have moved this Court under Art. 32 of the Constitution, each by a separate petition, for a writ of certiorari to bring up the records of the order and to quash them.\n\nThey allege that the order violates their fundamental right to freedom of speech and expression conferred hy sub-cl. (a) of cl. (I) of Art. 19 of the Constitution. l think these petitions should fail.\n\nFirst, it seems to me that this case is covered by the judgment of this Court in Ujjam Bai v. State vf Uttar Pradesh('). That was a case in which a petition had been moved under Art. 32 for quashing an order passed by an assessing officer acting judicially under a taxing statute, valid in all respects, assessing the petitioner to tax on a construction of the statute alleged to be erroneous and that petition was dismissed. It was held that the validity of an order made by a judicial tribunal, acting within its jurisdiction, under an Act which was illlra vires and good law in all respects was not liable to be questioned by a petition under Art. 32 even though the provisions of the Act had been misconstrued and that such an order could not violate any fundamental right and no question of this Court enforcing any violation of fundamental right thereby could arise The principle accepted appears to be that a legally valid act cannot offend a fundamental right. I think the same principle applies to this case. The conditions of the applicilility of the principle laid down in that case are that a judicial tribunal should have made an order which it had the jurisdiction to make by applying a law which is valid in all respects.\n\nI think both these conditions are fulfilled in this case and it is irrelevant to enquire whether Tarkunde J. had made the order on an erroneous view of the law he was applying.\n\nI proceed now to examine the case from this point of view.\n\nFirst had Tarkunde J. exceeded his jurisdiction in making the order ? '1t was said that he had, because the inherent power of the Court did not authorise the prevention of the publication of the H proceedings in the circumstances of the case.\n\nAs I understt)(ld ·- --·--·--· -· ·-· -· t•l 11963) ts. c. R. rs.\n\n4 •\n\n• ' ' I)\n\nMIRAJKAR v. MAHARASHTRA (Sarkar, J.) 775\n\nlearned counsel, they did not contend that Tarkunde J. had no power to prevent publication at all but only said that he had misused that power, and misapplied the law which gave the power to the facts of the case before him and thereby exceeded his jurisdiction. I think, for reasons to be later stated, he had such a power and that power was based on a valid law. I will assume for the present purpose that the learned Judge had committed the error imputed to him. But I am unable to agree that he had thereby exceeded his jurisdiction in the sense in which that word was used by this Court in Ujjam Bai's(') case. Our attention was drawn to certain observations in some of the speeches in the House of Lords. in Scott v. Scoll.(2) That was a case in which the trial of matrimonial case was ordered by a learned Judge of the High Court of England, trying the case as a court of first instance, to be held in rnmera. The House of Lords on appeal held that the order was completely invalid and might be disobeyed with impunity. Some of the learned Lords observed that the order was without jurisdiction and it was on this that the petitioners founded themselves.\n\nIt seems to me that this argument is based on a misconception of what was said by these learned Lords. All that they meant to say was that the law as to camera trial did not justify the order that had been made. It was not said that it was beyond the jurisdiction of the learned Judge, who made the order, to consider what that law was and whether it justified the order that he made. The House of Lords was only concerned with the legality of the order.\n\nIndeed, in England the High Cot1rt is a court of universal jurisdiction and except where provided by statute, its jurisdiction is, I believe, unlimited. The House of Lords was not concerned with any statutory limit of the jurisdiction of the High Court.\n\nWhen this Court observed in Ujjam Bell's(') case that the order had to be within the jurisdiction of the tribunal which made it, it really meant that the tribunal had to have jurisdiction to decide matters that were litigated before it and to apply the law which it, in fact, applied in making the order. It was not saying that the tribunal having this jurisdiction acts without jurisdiction if it makes an error in the application of the law. In coming to its conclusion in Ujjam Bai'~(') case, this Court assumed that the assessing autliority misinterpreted the law which it bad jurisdiction to apply, but held that nonetheless he bad acted within bis jurisdiction and was not acting without jurisdiction. This view is based on a well recognised principle. An order passed by a court without jurisdiction in the sense that I have mentioned, is a nullity. It cannot be said of such an order that it is a legal act which cannot result is a wrong. On the other hand, an order passed with jurisdiction but wrongly, is a legal act for it is well known that a court has jurisdic-\n\n(1) (t963] I S.C.R. 778.\n\n(2) [1913] A.C. 417.\n\n\n[ 1966) 3 S.C.R\n\ntin o decide rightly as well as wrongly.\n\nThis, I believe, is the A principle on which the condition as to jurisdiction was formulated in Ujjam Bai's.(') I find no difficulty, therefore, in holding that Tarkunde J. was acting within jurisdiction in making the order w.hich he did, even if he had committed an error in applying the 'law under which he made it.\n\nI turn now to the question whether the law which Tarkundc J. had applied was a valid law. It is sail! that it is not a valid law as it offends the fundamental right to freedom of speech conferred by Art. 19(1)(a). Now that law is the inherent power of a High Court to prevent publication of the proceedings of a trial.\n\nThe question is: Does this power offend the liberty of speech 'I It seems to me beyond dispute that the power to prevent publication of proceedings is a facet of the power to hold a trial in camera and stems from it.\n\nBoth are intended to keep the proceedings secret.\n\nSuppose a court orders a trial in camera and assume it had a valid power to do so.\n\nIn such a case the proceedings are not available to persons not present at the trial and cannot, for that reason at least, be published by them. Can any such person complain that his liberty of speech has been infringed ? I do not think so. He\n\nhas no right to hear the proceedings. Indeed, there is no fundamental right to hear. If he has not, then it should follow that his liberty of speech has not been affected by the order directing a trial in camera.\n\nThough it was not disputed, I will consider for myself whether a law empowering a trial in camera is a valid law. An order directing a trial to be held in camera prohibits entry into the court but I do not think that it can be said that it thereby offends the right to move freely throughout India which is given by sub-cl. (d) of cl. (I) of Art. 19. I would put this view on two grounds. I would first say that the law providing for trials being held In camera, .even if it trespasses on the liberty of movement, would be protected under cl. (5) of Art. 19 which permits laws to be made imposing reasonable restrictions on that right in the interests of the general public. Nt>w it is well recognised that the power to hold trials In 1, • camera is given in the interests of administration of justice. I suppose there can be no doubt that administration of justice is a matter of public interest. Then it seems to me indisputable that the restrictions that the exercise of the power to hold trials in camera imposes on the liberty of movement are reasonable. It is circumscribed by strict limits; see Scott. v. Scott.(2) It is unnecessary to discuss these limits for it has not been contended that the restrictions are not reasonable.\n\nSecondly, I woul<l say that that law does not violate any fundamental right to free movcmont.\n\nA court house is not such a place\n\n(I) (1963) I S.C.R. 778.\n\n(2) (1913) A.C. 417.\n\nI •\n\n• )\n\n~ '\n\n.......\n\nMIRAJKAR v. MAHARASHTRA (Sarkar, I.) 777\n\ninto which the public have an unrestricted right of entry. The public no doubt have a right to be present in court and to watch the pro-&\"\n\nceedings conducted there. But this is not a fundamental right.\n\nIt is indeed not a personal right of a citizen which, I conceive, a fundamental right must be. It is a right given to the public at large in the interests of the administration of justice. It cannot exist when the administration of justice requires a trial to be held in camera for in such a case it is not in the interest of justice that the public should be present. That right to be present in a comt must be subject to the control of the Judge administering the business of the court.\n\nIf it were not so, it would be impossible to carry on work in a court. I should suppose that one cannot complain of the breach of the liberty of movement if he is prevented(, by law from entering a private property. For analoguous reasons, I think a person cannot complain of a breach of that liberty when his entry to a court room is prohibited.\n\nIn neither case he is entitled to a free right of entry to the place concerned.\n\nNow the exercise of the power to hold trial in camera no doubt has the effect incidentally of preventing a citizen from publishing proceedings of the trial, for he is by it prevented from hearing them; what he cannot hear, he cannot, of course, publish. I do not think this restriction on the liberty of speech is a violation of the fundamental right in regard to it. First, the liberty of speech is affected only indirectly and it has been held by this Court in many cases beginning with A. K. Gopa/an v. The State(') that when a law which, though it violates a fundamental right is nonetheless good under any of the els. (2) to (5) of Art. 19, indirectly affects another fundamental right for which no protection can be claimed under these clauses, no grievance can be founded on the indirect infringement.\n\nSecondly, all that the law does is to legally prevent a person from entering the court and hearing the proceedings. Really, there is no such thing as an absolute right to hear. A person cannot complain of an infringement of the liberty of speech when all that is done is to prevent access to something which he intends to publish.\n\nAs I have earlier said the power to prohibit publication of proceedings is/· essentially the same as the power to hold trial in camera. If the power to prevent publication of proceedings does not exist, it would be futile to give a power to hold a trial in camera. I should suppose that if the law giving the latter power is a good law, as I think it is, everything involved in that law and stemming from it must equally be good. It would follow that the power to prohibit publication of proceedings cannot also amount to any infringement of the liberty of speech. When it is said that a proceeding shall not be published, what is in fact said is that persons will be permitted to hear what they have no right to hear, on the condition that they do not publish what they hear. The order preventing publication is really a form ;\n\n(I) [1950] S.C.R. 88.\n\nlvll2Sup.CJ/66~4\n\n\nof holding trial in camera. If a person taking advantage of such an order publishes it, he is certainly committing a wrong.\n\nI cannot imagine the Constitution contemplating a fundamental right based on a wrong.\n\nI conceive the position would be the same if a person stealthily and wrongfully gets possession of a copy of the proceedings of a trial held in camera and publishes them.\n\nHe has no fundamental right to liberty of speech in respect of such publication because that alleged right would then be originating from a breach of an indisputably good law.\n\nSuppose A has a copyright in a poem and B steals it and makes it over to C.\n\nIt would be absurd if C can take shelter under the liberty of speech when he is restrained by an injunction against a threatened publication of the poem by him. I should suppose that liberty of speech is not available to do harm to others. Clearly a right cannot be based on a wrong.\n\nTherefore, I think that a law empowering a court to prohibit publication of its proceedings does not affect the fundamental right of speech. It cannot be said to be bad on the ground that it infringes any such right.\n\nIt also seems to me that the law empowering a court to prohibit publication of its proceedings is protected by cl. (2) of Art. 19.\n\nThat clause says that a law may validly impose reasonable restrictions on the liberty of speech, if it is in relation to contempt or court. Now a law in relation to contempt of court in the present context is a law which says that certain statements uttered or published will be a contempt of court. Their utterance or publication is prohibited. The principle on which the law is based is that the utterance or publication would interfere with the course of justice and its due administration. As I have already said, the law preventing publication of the court's prooeedings is based on the same principle. The publication is prohibited only because it interferes with the course of justice.\n\nAn obstruction to the course of justice will of course be a contempt of court. That obstruction may take various forms. There is obstruction when comments on the meriL, of a case pending in a court are made. Such comments are prohibited by law and that law relates to contempt of court. Likewise an obstruction to the course of justice occurs when a court in the interests of justice prohibits publication of the proceedings and that prohibition is disobeyed.\n\nSuch publication is prohibited by law and the law empowering the prohibition equally relates to contempt of court. That law is concerned with the powers of the court alone and does not purport to confer rights on persons. Such a law would be a good law under cl. (2) of Art. 19 if the restrictions which it imposes are reasonable. What I have earlier said in connection with the reasonableness of the restrictions imposed by the law providing for a trial to be held in camera will apply to this case also. The restrictions which this law empowers to be imposed\n\n• c\n\n• •\n\nE •\n\nMIRAJKAR v. MAHARASHTRA (Sarkar, I.) 779\n\nhave to be confined within the strict limits and are plainly reasonable.\n\nI will refer now to another aspect of the matter. As I understood learned counsel for the petitioners, they conceded that the order was a good order in so far as it concerned the parties to the case heard by Tarkunde J. who could not, therefore, complain of any violation of their liberty of speech by it. But it was contended that the order was not a valid order in so far as it restrained persons like the petitioners who were not parties to the proceedings.\n\nI~ is true that the petitioners were not parties, but I am unable to see that that makes any difference. The case will still be covered by the principle laid down in Ujjam Bai's(1) case It would still be a judicial order made within the jurisdiction of the Judge making\n\nit and based on a good law. It would still be a legal act. It cannot, therefore, violate anyone's fundamental right whether he is a party to the proceedings or not. The person affected can always approach the court for relief even if he was not a party to the proceedings.\n\nThe jurisdiction of the Court does not depend on who the person affected by its order, is. Courts often have to pass orders which affect strangers to the proceedings before them.\n\nTo take a common case, suppose a court appoints a receiver of a property about which certain persons are litigating but which in fact belongs to another. That person is as much bound by the order appointing the receiver as the parties to it are. His remedy is to move the court by an application pro interesse suo. He cannot by force prevent the receiver from taking possession and justify his action on the ground that the order was without jurisdiction and; therefore violated his fundamental right to hold property.\n\nIt would be an intolerable calamity if the law were otherwise.\n\nTherefore, it seems to me that on the authority and the principle of Ujjam Bai' s ( 1) case it must be held that the order <YI Tarkunde J. did not violate any fundamental right of the petitioners and the petitions must fail.\n\nI would now refer to two judgments of this Court to which our attention was drawn. I find nothing in them which conflicts with the principle enunciated in Ujjam Bai's(I) case.\n\nThe first is Budha!I Chowdury v. The State of Bihar(2).\n\nIn that case there is an observation indicating that a judicial decision will not amou11t to denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful discrimination: An argument was based on this observation that this Court con~ templated that a judical order might in certain circumstances violate a fundamental right. But that observation must be related to thP facts of the case. The case dealt with the power of a magistrate to\n\n\n(2) [1955] l S.C.R, 1045.\n\n\nnot prepared to accept a test which would affect that right in any way.\n\nBesides this aspect of the matter, the power to issue a writ of certiorari is most valuable and most needed where an appeal does not lie from a decision of a tribunal and that decision is sought to be called in question. A test which would prevent the writ from lying in a case where it is most needed is not acceptable to me. I may add that in England where a writ of error-a form of appeal -lay, the certiorari does not appear to have issued.\n\nAnother test suggested was that the inferior court was one over which the superior court issuing the writ had a supervisory jurisdiction. This test would fail for the same reason as the test of appcalability. The Supreme Court has no supervisory jurisdictio11 over any court though it has power to issue the writ, nor have the High Courts over many to which it is necessary that they should issue the writ and have in fact been doing so all along with great beneficial results. This test will not, therefore, work in our country. That is not a test in England either. No doubt, in England it is said that the High Court exercises supervision over the inferior courts by the issue of the writ but that is so because the power to issue the writ carried with it the power to supervise and not because the writ is issued as there is a power to supervise. The power to issue the writ arises from what was once the royal prerogative and not from what is only a power to supervise.\n\nI confess the question is of some haziness. That hazine.is arises because the courts in our country which have been given the power to issue the writ are not fully analogous to the English cour1& having that power.\n\nWe have to seek a way out for ourselves.\n\nHaving given the matter my best consideration, I venture to think that it was not contemplated that a High Court is an inferior court even though it is a court of limited jurisdiction. The Constitution gave power to the High Courts to issue the writ. In England an inferior court could never issue the writ. I think it would be abhorrent to the principle of certiorari if a court which can itself issue the writ is to be made subject to be corrected by a writ issued by another court. When a court has the power to issue the writ, it is not, according to tbe fundamental principles of certiorari, an inferior court or a court of limited jurisdiction. It does not cease to be so because another court to which appeals from it lie, has also the power to issue the writ. That should furnish strong justification for saying that the Constitution did not contemplate the High Courts to be inferior courts so that their decisions would be liable to be quashed by writs issued by the Supreme Court which also had been given the power to issue the writs.\n\nNor do I think that the cause of justice will in any manner be affected if a High Court is not made amenable to correction by this Court by the issue of the writ.\n\nIn my opinion, therefore, this Court has no power to issue a certiorari to a High Court.\n\nMIRAJKAR v. MAHARASHTRA (Hidayatulla~. J.) 783\n\nA I would, for these reasons, dismiss. the petitions.\n\nHidayatullah, J. Questions of far-reaching importance to our system of administration of justice are involved in these petitions and as I have reached the conclusion that these petitions should be allowed, I consider it necessary to state my reasons fully. The facts are these:\n\nIn a sensational libel suit, on the original side of the High Court of Bombay, between one Mr. Krishnaraja M.D. Thakersey and Mr. R.K. Karanjia, Editor of the \"Blitz\" (an English weekly newspaper of Bombay), one Bhaichand Goda was cited as a witness for the defence. In a different proceeding Goda had earlier made an affidavit of facts which were considered relevant to the libel snit, but as witness he did not adhere to them. Mr. Karanjia was, therefore, permitted to cross-examine him with reference to his earlier statement. When the trial of the snit proceeded some other material came on record which indicated that Goda had, in some other proceedings, repeated what he had stated in his affidavit.\n\nAt the request of, Mr. Karanjia, Goda was recalled for further cross-examination in. relation to the new matter. On his second appearance Goda made a request to the presiding Judge (Mr. Justice Tarkunde) to withhold his evidence from newspaper reporters on the ground that publication of reports of his earlier deposition had caused loss to him in his business. After hearing arguments Mr. Justice Tarkunde orally ordered that Goda's deposition should not be reported in newspapers. The Blitz was giving verbatim reports of the trial and the other newspapers were also publishing brief accounts. The oral order of the learned Judge was not recorded. The minutes of the Court also do not mention it. In fact we have not seen that order. No one can say what the nature of the prohibition was, namely, whether it was a temporary or a perpetual suppression of publication. As the intention was to save Goda's business from harm, it is reasonable to think that the prohibition was perpetual and that is how the matter appears to have been understood by all concerned because no report of his deposition has since appeared in any newspaper.\n\nThese four petitions under Art. 32 of the Constitution were filed to question the order (such as it was) on the ground that the fundamental rights under Art. 19(l)(a) of the Constitution of the four petitioners (who are all journalists) have been violated by the said order. They raise important questions and I shall mention them at once. They are: (i) can a court, which is holding a public trial from which the public is not excluded suppress the publication of the deposition of a witness heard not in camera but in open court on the request of the witness that his business will suffer;\n\n(ii) does such an order breach fundamental right of freedom of speech and expression entitling persons affected to invoke Art. 32;\n\n784 SUPREME COURT Rl!POllTS\n\n(1966] 3 $C.R.\n\nand (iii) if so, can this Court issue a writ to a High Court?;~I A answer these questions in the affirmative and in favour of the petitioners.\n\nBefore I discuss the order in this case I shall state the nature of hearings in the trial of cases in our courts. As we have fortunately inherited the English tradition of holding trials (with a few exceptions to which I shall refer later) in public, I shall begin with the English practice. It has always been the glory of the English system as opposed to the Continental, that all trials are held ostiis apertis, that is, with open doors. lbis principle is old and according to Hallam it is a direct guarantee of civil liberty and it moved Bentham to say that it was the soul of Justice and that in proportion as publicity had place, the checks on judicial injustice could be found. Except for trials before the Council all trials in England, including those before the notorious Star Chamber, were public and with observance of the law terms. ft is because English trial has not known the Lettres de cachet of Louis XIV and all its state trials were public, that the Selden Society has been able to collect the cases of the Star Chamber and we have the verbatim\n\nreports of almost all state trials. As Emlyn in his preface to the State Trials says proudly :\n\n\"In other countries the courts of Justice are held in secret; with us publicly and in open view; there the witnesses are examined in private, and in the prisoner's absence;\n\nwith us face to face, and in the prisoner's presence.\" E\n\nHe was no doubt speaking of criminal trials hut the principle (with a few exceptions) is applicable to civil cases also.\n\nThis attachment to an open trial is not a rule of practice with the English, but is an article of their Great Charter and Judges view with great concern any departure from it. Whenever, a Judge F departed from it he defined the 'field of exception' and stated ' the\n\noerriding principle' on which his decision was based. No Judge passes an order which is not recorded in the minutes and a question of this kind is not dealt with by the Judge as within his mere discretion as to what he considers expedient or convenient. As illustration of the seriousness of the question I shall permit myself G an instance which concerns one of the greatest legal luminaries of F.oglish law.\n\nIn Mala11 v. You11g(') (in the Shcrborne School~ libel case) Lord Denman (then Denman J.) with the consent of the ' parties made an order for hearing in cemera and a part of the case was so heard. Then a lawyer protested and Mr. Justice Denman, on a reconsideration of the matter, invited the parties the decide whether they would take the risk of a case in camera or would H begin de novo in open court. The parties agreed to have the case\n\n(I) (1889) 6 T.L.R. 38.\n\n\n(1966] 3 S.C.R.\n\nprinciple requires. He may be able to show that the evidence can be effectively brought before the court in no other fashion.\" (mphasis added)\n\nWith profound respect for the eminent Judge I think the principle, so stated, is too wide and Rex. v Clement(') which be uses to illustrate his point has no relevance.\n\nI respectfully agree with the Earl of Halsbury, who in the same case, commented upon the width of the Lord Chancellor\"s language and with Lord Atkinson who pointed out that in Clement's case there were many persons being tried for high treason and as the challenges to the jury were different, a large number of trials with common witnesses had to be held and publication was withheld so that others might not be prejudiced. The Earl of Halsbury observed as folllows:\n\n· ........ I wish lo guard myself against the proposition that a judge may bring a case within the category of enforced secrecy because he thinks that justice cannot be done unless it is heard in secret.\".\n\nI am not venturing to criticise your Lordship\"s language, which, as your Lordship understands it, and as I venture to say I myself understand it, is probably enough to secure the observance of the rule of public hearing, but what I venture to point out is that it is not so definite in its application but that an individual judge might think that, in his\n\nview, the paramount object could not be attained without a secret hearing. Although I am very far from saying that such a case may not arise, I hestitate to accede to the width of the language, which, as I say, might be applied to what, in my view. would be an unlawful extension.\" \"(pp. 442/443).\" (emphasis added)\n\nThe Earl of Halsbury also expressed amazement that asingle Judge (Sir Francis Jeune) should overrule \"three such leamee Judges as Sir Cresswell Cresswell, Williams J. and Bramwell B.\" who in H (falsely called C) v C.(2) had expressed different opinion in ri:lation to hearing in camera on the request of parties.\n\nLord Shaw of Dunfermline also called the dictum of Sir Francis Jeune in D. v. D. \"to be historically and legally indefensible.\" Earl Loreburn, however, agreed with the principle as enunciated and was in favour of its being exercised liberally. The head-nole in the law report sets out the views of Viscount Haldane and F.arl Loreburn separately from the main decision.\n\n(I) <B & Aid. 218.\n\n(2) I SW & Tr. 635.\n\nSUPREME COURT\n\nREPORTS\n\n(1966) 3 S.C.R\n\nTo begin with we have the definition of 'State' in Art. 12.• That definition does not say fully what may be included in !ha.- word 'State' but, although it says that the word includes certain/ authorities, it does not consider it necessary to say that courts and Judges are excluded. The reason is made obvious at once. if we consider Art. 13(2).•• There the word 'State' must obviously include 'courts' because otherwise 'courts' will be enabled to make rules which take away or abridge fundamental rights. Such a case in fact arose in this Court when Rule 12 of Order XX.XV of the Supreme Court Rules was struck down. [Sec Premchand Garg v.\n\nExcise Commissioner, U.P .• Allahabad]('). That rule required the furnishing of security in petition under Art. 32 and it was held to abridge the fundamental rights.\n\nBut it is said that the rule was struck down and not the judicial decision which W<l~ only i revised. That may be\"\" But a judicial decision based on .soch17 a rule is not any better and offends the fundamental rights just the same and not less so because it happens to be a judicial order. If here be no appropriate remedy to get such an order removed because this Court has no superior, it docs not mean that the order is made good. When judged of under the Constitution it is still a void order although it may bind parties unless set aside.\n\nProcedural safeguards are as important as other safeguards.\n\nAgain Art. 20, which speaks of convictions for offences, punishments and testimonial compulsion is addressed as much to courts as to executive and other authorities, and I venture to think that the worst offenders would be the courts if they went against this prescription. Article 22(1)! is addressed to courts where it I says that no person, who is arrested, shall be denied the right to be\n\n- -···----- .. •\"12. In this Part. unless the context othcrwis~ requires, \"the State\" includes ti.c Go•cmmcnt and Parliament of Ind~ and the Government and the l...cgia.- lature of each of the Slate' and all local or other authorities within the territory of India or under the control of the Government of lodia.\" ••\"13 (2) The State shall not make any law which takes away or abridges the rights conferred by this pan and any law made in contravention of this clause shall, to the extent of the contravention, be ,1oid.\"\n\n(I) 11963) Supp. I S.C.R. 885. t\"2J (1) No person shall be con .. ictcd of any off'-'Dcc except for violation of a\n\nlaw in force at the time of the commission of the act charged as aa offL\"otc, nor be subjected to a penalty greater than that which n1ight have been infiicted under the law in force at the timi: of the commission of the offence.\n\n(2) No person shalt be prosecuted and punished for the same offence more than once.\n\n(3) No pc™>n accused of any offence shall be C-Olllpcllcd to be a witoeos\n\naaains• himself.\"\n\nt22(1) No person who is arrested sha!J be detained in custody without being\n\ninformed, as soon as may be, of the grounds for such arrest nor shall he be denied the right 10 consult, and to be defended by a legal practitioner of his choice.\n\n~ ,.\n\n~ I\n\n~ c\n\nD ..\n\n' ....\n\n..,,\n\n...\n\nMIRAJKAR v. MAHARASHTRA (Hldayatul/ah, !.)\n\n79 I\n\ndefended by a legal practitioner of his choice. If the High Court had, for example, insisted on the defendant in a criminal case to take a counsel of its choice, the trial would have been vitiated.\n\nWhy? Because of the breach of the fundamental right in Art. 22(1). The remedy would not have been to wait till the end of the trial and then to bring the matter up by appeal on a certificate or to ask for special leave against the order but to ask for a writ compelling the observance of the Constitution .\n\nThese provisions show that it cannot be claimed as a general proposition that no action of a Judge can ever be questioned on the ground of breach of fundamental rights. The Judge no doubt functions, most of the time, to decide controversies between the/ parties in which controversies the Judge does not figure but occasion may arise collaterally where the matter may be between the Judge and the fundamental rights of any person by reason of the Judge's action. It is true that Judges, as the upholders of the Constitution and the laws, are least likely to err but the possibility of their acting contrary to the Constitution cannot be completely excluded. In the context of Arts. 14, 15(l)(b) and (19) (a) and (d) it is easy to visualize breaches by almost any one including a Judge.\n\nA court room is a place dedicated to the use of the general public.\n\nThis means that a person who goes there has not to.seek anybody's permission to enter it provided he either has business there or as a spectator behaves himself. The work of the court is done in public and no one is excluded who wishes to enter the court room to watch it. In a suitable case the public may, of course, be excluded by the Judge. But he cannot exclude a section of the public on the ground of race, religion or community without offending fundamental rights. The right to carry on the profession of law may be enforced against a Judge within the precincts of his court as much as the carrying on of other professions may be enforced outside.\n\nIt is, however, said that a Judge possesses a dual character, that in his administrative capacity he may be within the reach of the chapter on fundamental rights but not in his judicial capacity. I venture to think that sitting in the seat of justice hardly makes a difference.\n\nIt may be that his judicial orders normally are subject to appeals,. revisions and reviews but where none of these can be invoked and fundamental rights are involved recourse to the guaranteed remedy may become necessary. Because Judges decide matters objectively and because almost all their orders are capable of correction by way of appeals, revisions or reviews, does not lead to the conclusion that every order made by a Judge may only be treated as a wrong order and not as one guilty of breach of fundamental rights. If a Judge, without any reason, orders the members of, say, one political party out of his court, those so ordered may seek to enforce their fundamental rights against him and it should make no difference that the order is made while he sits as a Judge. Even if appeal lies against\n\n\n(1966] 3 S.C.R.\n\nsuch an order, the defect on which relief can be claimed, is tlie A breach of fundamental rights.\n\nI am, therefore, of opinio'n that Judges cannot be said to be entirely out of the reach of fundamental rights.\n\nThe fundamental right here claimed is the freedom of speech and expression. In Sakal Papers (P) Ltd. v. The Union o( lndit:J..')\n\nthis Court holds that the freedom of speech and expression guaranteed by Art. 19(1) (a) includes freedom of press.\n\nA suppression of the publication of the report of a case conducted in open court. for a reason which has no merit, ex facie offends that freedom. Just as the denial witlwur any reason io a person of the right to enler a court is to deprive him of several fundamental freedoms, denial of the right to publish reports of a public trial is also to deny the freedom of the press which is included in the freedom of speech and expression. Suppose for a moment that a Judge singles out some newspapers for discriminatory treatment. The order wot1ld indubitably offend the equality clause. Assuming that no remedy exists against such an order, the person affected, if he disobeys it, can at least claim immunity in a proceeding for contempt hy pleading breach of his fundamental rights by the Judge.\n\nIn my judgment Mr. Justice Tarkunde, having held a public trial, could not curtail the liberty of the press by suppressing the publication of the repom.\n\nThis was not a matter of deciding anything in a /is but of regulating his court and procedure. As the Judge passed no recorded order, the appropriate remedy (in fact the only effective remedy) is to seek to quash the order by a writ under Art. 32 of the Constitution,;\n\nI have disposed of the second question but some of the reasons which strengthen that view were not mentioned because they can be more appropriately mentioned in connection with the third question which is: Can this Court issue a writ under Art. 32 of the Constitution to a High Court? This is a difficult and an important question which I would have gladly reserved for a more suitable case.\n\nHad I been of the view that the order of Mr. Justice Tarkunde was proper, I would not have attempted it because it would have been a futile exercise but I am compelled to answer this question firstly because the matter is considered in the judgments of my lord the Chief Justice and of my other brethren and. secondly, because on my answers to the first two questions it perhaps arises more in my judgment than in others,\n\nThe submission of the Attorney-General is that in no case can writs of mtmdmus, certiorari or prohibition go to a Division Court or to a single Judge of the High Court whether sitting in bane or in chambers.\n\nHe is not so sure about the writ of quo warranto and wishes it to be considered as a separate question.\n\nIt is, however, clear that the last writ must either issue here or in the High\n\n(I) [1962) 3 S.C.R. 842.\n\nMIRAJKAR v. MAHARASHTRA (Hldayatul/ah, /.) 7~3\n\nCourt if a Judge becomes incompetent, say, by reason of superannuation and does not demit his office and, I think, the Attorney- General is right in not mixing up this writ with a consideration of the others. In respect of the other writs, the argument of the Attorney-General is that the High Court in England issues these writs to inferior courts but not to courts of coordinate jurisdiction or superior courts and the High Court as a Court of Record and a superior court, itself being able to issue these writs in our country, must be treated as a court of coordinate jurisdiction in this matter and not regarded as an inferior court. He also contends that the decisions of the High Courts are capable of being corrected by appeals only and writs cannot lie. I do not accept these arguments.\n\nNothing turns on the fact that the High Court is a court of record because the writ of certiorari issues to several courts of record-( see Ha[sbury's Laws of England (3rd Edn.) Vol. II, page\n\n124. para 230). Similarly \"Ecclesiastical courts are superior courts in the sense that it need not appear in any proceeding or judgments of these courts that the court was acting within its jurisdiction but they are regarded as inferior courts in the sense that they cai:i be stopped from exceeding their jurisdiction by an order of prohibition\" (see Halsbury ibid., Vol. 9, p. 348 para 817). Nothing much can turn upon phrases such as 'court of record', 'superior and inferior courts' borrowed from English law.\n\nWe have to guide ourselves by our Constitution which lays down the powers of this Court in Art. 32 thus:\n\n\"32. Remedies for enforcement of rights.\n\n(I) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.\n\n(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.\n\n(3) Without prejudice to the powers conferred on the Supreme Court by clauses (I) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).\n\nH ( 4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.\" Ml2 Sup. C. I./66-5\n\nSUPREMB COUl.T llBPOl.TS ( 1966] 3 S.C.ll.\n\nThe powers of the High Court arc stated in Art. 226 which may also A be set out here for comparison:\n\n\"226. Power of High Courts to issue certain writs.\n\n(I) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government within those territories directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prnhibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (IA) The power conferred by clause (I) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the terrjtories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.\n\n(2) The power conferred on a High Court by clause (I) or clause (IA) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.\"\n\nArticle 32 makes no exception in favour of the High Court.\n\nIt refers to the writs of certiorari and prohibition which lie only in respect of judicial acts and although they lie also to bodies and persons who are not courts stricto sensu, they always lie to courts. As these writs are mentioned in Art. 32 and there is no exception in respect of the High Courts we start with a presumption that the High Court may not be excluded. The writ of mandamus may also be issued to courts and that does not detract from the pr~ sumption. The writ of quo warranto, as stated earlier, may concededly be held to apply to a High Court Judge.\n\nIt will be noticed that both the articles in speaking of the power say that it is to issue writs \"in the nature of\" the writs of habea.r corpus, mandamus, certiorari, prohibition and quo warranto. The phrase \"in the nature or• is not the same as the other phrase \"of the nature or•. The former emphasises the essential nature and the latter is content with mere similarity. As a result we have to consider this controversy from two angles: (i) how far does the essential nature of the writs taken with the special history of courts in England throw any light upon the subject and (ii) what assistance do we derive from the language and scheme of Arts. 32 and 226?\n\nI ahall deal with these matters in the wne order.\n\n.MlllAJLU v. MAHilASHTL\\ (Hidayatullah, /.) 79&\n\nWe arc concerned with high prerogative writs. They do not issue like the ordinary writs which are of strict right, but only at the discretion of a court entitled to issue them. The writ of prohibition issues from the Queen's Bench properly but.it was also issued .from the Chancery, Common Pleas and Exchequer Courts returnable to the Queen's Bench or Common Pleas (now merged in the Queen's Bench Division). It is, however, not granted to a court which exercises the powers of the High Court. The writ is issued to Judges and parties in an inferior court to cease from prosecuting a case in which their jurisdiction, either originally or collaterally, is wanting. Prohibition lies to a Judge as of right when the want of jurisdiction is patent. Since the Judicature Acts an appeal now lies agail)st the writ, to the Court of Appeal and thence to the House of Lords, but before that the writ could only be questioned under a Writ of Consultation. The Judge to whom the writ went consulted with the Queen's Justices and if the writ of prohibition was not proper, a consultation was granted.\n\nCertiorari issues to Judges and officers of inferrior courts and jurisdictions, from the Queen's Bench (now the Queen's Bench Division) to certify or send proceedings so that the legality of the proceedings may be examined. But if the other court exercises the powers of the High Court the writ is refused (see Skinner v. Northallerton County Court Judge-[1889] A.C. 439). Certiorari also lies to remove a cause or matter into the High Court if fair and impartial trial in the inferior court is not possible or questions of law of unusual difficulty are likely to ; irise. The writ also issues from the House of Lords to remove an indictment for felony found by a grand jury against a Peer. The Earl of Russell was tried for bigamy by the King in Parliament before 160 peers and all the Judges of the High Court after removal thereof the case by certiorari (see The Trial of Earl Russe/1(1). The Crown gets the writ of certiorari as of absolute right but the subject at the discretion of the court. No certiorari goes from one branch of the High Court to another nor to another superior court. This writ cannot be avoided by the Judge by not writing an order in the case before him. Even if the Judge has not recorded the order the High Court will order the inferior court to record its decision and then to transmit the record to it. (Halsbury, 3rd Edn, Vol XI, page 135, para 251). Certiorari lies only in respect of judicial, as distinguished from administrative, acts.\n\nMandamus lies for the enforcement of legal rights when there: is no other specific remedy or the other available remedy is not so effective. It often issues to a court to hear and determine a matter H pending before it. Such a writ issued also from the Chancery when judgments were delayed, but returnable to the Queen's Bench.\n\n(I) (19Jl] A.C.446.\n\n79i SUH.BM!! COUIT Rl!POllTS\n\n(1966] 3 S.C.R.\n\nAs Halsbury tersely puts it (3rd ed. Vol. XI, p. 53, para 109) the three writs of mandamus, prohibition and certiorari are used as a means of controlling inferior courts and those who have legal authority to determine questions affecting the rights of ubjects and having to act judicially. By these three writs inferior courts were compelled to do ample and speedy justice and were kept within their jurisdiction.\n\nThe root principle, says l/a/sbury (ibid., Vol. IX, p. 351, para\n\n823) is that the Judges stand in the place of the Queen and the Queen is supposed to be present in her royal courts. Of the Courts of Common Law at Westminster which have dispensed justice for upward of seven centuries in the Queen's name, only one exercised general jurisdiction in civil causes. This court was established by Henry II in 1178 A.D. and was known as the Common Bench.\n\nCases of special difficulty were heard by the Sovereign with the advice of her wise men. This court was spoken of by the Sovereign \"as our Justices at Westminster\". In accordance with Article XVII of the Great Charter, Westminster was chosen as a \"certain\n\nplace\" and till the idea of taking justice to the people arose and assizes came into existence, the court never stirred from that place.\n\nThe court was known as the Upper Bench or the Queen's Bench where the Sovereign was present (curia ad p/acita corem Rege tenenda). The Upper Bench or the Banc Royal dealt with matters of special intrest to the sovereign, riz. the 'prerogative' writs of certiorari, prohibition etc. The Court of Exchequer (which was the third court) dealt with cases in the course of collection of revenue.\n\nSome writs which issued from these courts were original or judicial. They were regarded as mere machinery writs and were writs of right and issued on payment of the necessary fee to commence litigation or something incidental to it.\n\nPrerogative writs were different and they issued with the special leave of the Court. By these prerogative writs the Queen's Bench superintended the other courts and tribunals. The distinction between superior and inferrior courts is this. No matter is deemed to be beyond the jurisdiction of a superior court unless expressly shown on the face of the proceedings to be beyond it, or established aliunde.\n\nIn the case of an inferior court it has to appear in the proceedings or in its judgment that the matter is within its jurisdiction. Another test i1\n\nwhether proceedings in the court can be stopped by a writ of probibition issuing from the Queen's Bench and in this sense the Ecclesiastical Courts and even the Judicial Committee. hearing appeals in ecclesiastical matters and the Admiralty Courts are inferior (see Rex. v. Chancellor of St. Edmwzsbury and Ipswich Diocese) (I). -------···--- (!) (194811 K.B. 195 at 205.\n\n• c\n\nH '\n\nMIRAJKAR v. MAHARASHTRA (Hldayatu/lah, J.) 797\n\nI make no excuse for this excursion into the history of English Jaw and institutions because we have chosen to put down in Arts. 32 and 226 of the Constitution that the Supreme Court and the High Courts will exercise the power to issue writs 'in the nature of' mandamus, certiorari, prohibition and quo warranto-the Supreme Court for the enforcement of fundamental rights only and the High Courts for that purpose and for other purposes. The question is who takes the place of the Queen's Bench Division in England and whether the Supreme Court in India has no power to issue a writ to enforce fundamental rights when breached by the High Courts? There is no real resemblance between the scheme of courts under our Constitution and the courts in England.\n\nObviously, no prerogative writ of the Queen can go to a court in which the Queen herself is supposed to be present. This limitation has no significance with us. The analogy of superior and inferior courts breaks down in England itself when we consider the Ecclesiastical Courts and the Privy Council hearing appeals in 'ecclesiastical matters. They are supe1iJr courts but prohibition issues to them. That our High Courts are courts of record is not a fact of much significance either because prerogative writs do issue to several courts of record in England. As there is no real correspondence between the courts in the two countries we can only decide the question by considering if there is any good reason for excluding the High Court Judges from the area of the powers of this Court or conversely for holding that they are so included.\n\nJn the draft Constitution the jurisdiction and power to issue prerogative writs to governments etc. was entrusted to this Court only by implication. The inclusion of this power in Art. 226 came by way of amendment. It was perhaps considered that enabling the making of a law under Art. 32(3) might not be an adequate provision to provide for investing the High Courts with similar powers because such a law might never be passed. It was considered difficult for this Court single-handed to enforce the fundamental rights throughout the territories of India and accordingly Art. 226 was amended to confer jurisdiction on the High Courts within the territories in relation to which they exercise jurisdiction to issue such .writs. The fundamental rights are, however, more strongly entrenched in the Constitution through Art. 32 than through Art. 226. Even with the amendment of Art. 226 the power which is conferred on the High Courts is not in every sense a coordinate power and the Constitution furnishes several reasons in support of this statement. The first indication is that the right to move the Supreme Court for the enforcement of these rights is guaranteed but there is no such guarantee in Art. 226. Again\n\ncl. (3) of Art. 32 enables Parliament to empower by law any other court to exercise within local limits of its jurisdiction all or any of the powers exercisable by this Court under Art. 32 but without\n\nSUPREME COURT\n\nREPORTS (1966] 3 s.c.~\n\nprejudice to the powers of the Supreme Court under Cls. (l) and (2) of Art. 32. There is no such saving in favour of the powers of the High Courts. Tho mention of the first two clauses of Art. 32, particularly cl. (I), indicates the importance of the guarantee.\n\nAlthough the amendment of Art. 32 has been held to be a less difficult process than the amendment of Art. 226, the guarantee in Art. 32(1) seems to be real till it is repealed or annulled. The provisions of Art. 226 themselves indicate this. Art. 226 begina by saying \"Notwithstanding anything in article 32\" which shows that the whole of the power must otherwise be with this Court.\n\nIt indicates an intention to carve out an area for local action by the High Court.\n\nThis might have made the exercise of tho power by the High Court equal to its exercise by this Court but for the existence of cl. (2) which says that the power conferred on the High Court is not in derogation of the powers conferred on the Supreme Court. The word derogation must receive its run meaning. It shows that the entirety of the powers possessed by this Court is still intact in spite of the High Court's ability to aercise similar powers in local areas within their juisdiction. U\n\nthe powers were coordinate why include cl. (2) in Art. 226 ?\n\nJn these circumstances can we say that the High Court possesses coordinate powers ? I say no.\n\nA person need not go to the High Court at all before moving this Court. There is really no provision that when a person has moved the High Court and failed he cannot again move this Court although on the ground of comity this Court expects in such circumstances an appeal against the decision of the High Court and not a direct approach.\n\nThis Court is not only a court of appeal in civil, n:venuc and criminal rroceedings from judgments of the High Court but by Art. 136 it is empowered to bring before it any judgment, decree, determination, sentence or order in any cause or matter passed or !Rllde by an}' court or tribunal in the territory of India.\n\nThe implication of this is quite clear to me when I read Art. 136 in\n\nnjunction with Arts. 32 and 226. That implication is that there is no sharing of the powers to issue the prerogative writs possessed by this Court. The whole of the power is still with this Court under a guarantee and only analogous powers for local enforcement are pven to the High Courts. Under the total scheme of the Constitution the subordination cf High Courts to the Supreme Court is not only evident but is logical.\n\nArt. 32 is concerned with fundamental rights and fundamental rights only. It is no~ concerned with breaces of Ia~ which o not involve fundamental nghts directly. The ordinary wnts of cerzortari, 1'!andamus and prohibition can only issue for enforcement of fundamental rights. A clear-<:ut case of breach of fundamental rights alone can be the basis for the exercise of the power,. I have\n\nF •\n\nMIRAJKAll v. MAHARASHTIL\\ (Hldayatul/ah, J.) 799\n\nalready given examples of actions of courts and Judges which are not instances of wrong judicial orders capable of being brought before this Court only by appeal but of breaches of fundamental rights pure and simple. Denial of equality, as for example, by excluding members of a particular party or of a particular community from the public courtroom in a public hearing without any fault when others are allowed to stay on, would be a case of breach of fundamental rights of equal protection given by the Constitution.\n\nMust an affected person in such case, ask the Judge to \\Hite down his order so that he may appeal against it? Or is he expecte4\n\nto ask for special leave from this Court? If a High Court Judge in England acted improperly there may be no remedy because of the limitation on the rights of the subject against the Crown. But iA such circumstances in England the hearing is considered vitiated and the decision voidable. This need not arise here. The High Court in our country in similar circumstances is not immune because there is a remedy to move this Court for a writ against discriminatory treatment and this Court should not in a suitable case shirk to issue a writ to a High Court Judge who ignores the fundamental rights and his obligations under the Constitutio11,.\n\nOther cases can easily be imagined under Arts. 14, 15, 19, 20, 21 and 22 of the Constitution in which there may be action by a Judge which may offend the fundamental rights and in which an appeal to this Court will not only be not practicable but also quite an ineffective remedy.\n\nWe need not be dismayed that the view I take means a slur on the High Courts or that this Court will be flooded with petitiona under Art. 32 of the Constitution. Although the High Court& possess a power to interfere by way of high prerogative writs of certiorari, mandamus and prohibition, such powers have not been invoked against the normal and routine work of subordinate courts and tribunals. The reason is that people understand the difference between an approach to the High Court by way of appeab etc. and an approach for the purpose of asking for writs under Art.\n\n226. Nor have the High Court spread a Procrustean bed of high prerogative writs for all actions to lie. Decisions of the courts have been subjected to statutory appeals and revisions but the losing side has not charged the Judge with a breach of fundamental rightJ because he ordered attachment of property belonging to a stranger to the litigation or by his order affected rights of the parties or even strangers. This is because 'the people understand the difference between normal proceedings of a civil nature and proceedings in which there is a breach of fundamental rights. The courts' acts, between parties and even between parties and strangen, done impersonally and objectively are challengeable under the ordinary law only. But acts which involve the court with a funda- ' mental right are quite different.\n\n\n(1966] 3 S.C.R.\n\nThe power and jurisdiction of this Court is so narrow that nothing on the merits of a controversy of a civil case can ever come up before it under Art. 32. It is unlikely that this Court will torture\n\ncass to fit them into Art. 32. A person may try but he will find this a Sisyphean task. It cannot be brought here by plea'ding breach of fundamental rights.\n\nIt is only when a Judge directly acts in some collateral matter so as to cause a breach of a fundamental right that the ordinary process of appeals being unavailable or insufficient a case under Art. 32 can be made out. If there is a decision in a civil prcceeding, an appeal is the only appropriate remedy. When the High Court Judge acts collaterally to cause a breach of fundamental right I am clear that an approach to this Court is open under Art.\n\n32. The Supreme Court of America has not hesitlited to interfere with breaches of Civil Rights Acts on the part of the court~ in the States by treating the action of State courts and of judicial officers in their official capacities as State action. (see Shelly v. Kraem!r, (1)\n\nVirginia v. Rives(') and Hurd v. Hodge)('). I think we should not hesitate to extend our protection to the fundamental rights in our country even if they he breached by the High Courts.\n\nI may dispose of a few results which it was suggested, might flow from my view that this Court can issue a high prerogative writ to the High Court for enforcement of fundamental rights.\n\nIt was 1uggested that the High Courts might issue writs to this Court and to other High Courts and one Judge or Bench in the High Court and the Supreme Court miEht issue a writ to another Judge or Bench in the same Court. This is an erroneous assumption. To begin with the High Courts cannot issue a writ to the Supreme Court because tbc writ goes down and not up.\n\nSimilarly, a High Court 1annot issue a writ to another High Court. The writ does not 'go to a court placed on an equal footing in the matter of jurisdiction.\n\nWhere 'the county court exercised the powers of the High Court, the writ was held to be wrongly issued to it (see In re The New Par Consols, Limited.)(') The following observations of the Earl of Halsbury LC. in Skinner v. the Northallerton County Court Judge (l) represent my view:\n\n\"The absurdity of that is that the statute itself has made the county court the High Court for this purpose.\n\nYou might just as well argue that a warrant defective in form, issued by the Court of Queen's Bench could be set right by certiorari. Of course this is absurd. This is the High Court for this purpose .......... If there was any irregularity or inaccuracy in point of form in the warrant that did issue, that could be put right by -------- (!) 9l L. ed. 1161 :334 U.S. t. (J) 92 L. ed. 1187.\n\n(5) (1199) A.C. 439.\n\n(2) lS L. ed. 667 at 669.\n\n(4) [1898) 1.Q.B. fH!.\n\nD •\n\n802 SUPREllJ! COUllT REPORTS\n\n(1966) 3 S.C.R.\n\ndeterminations by Court~ strictly so-callcd-Courl3 which arc invested with plenary power to determine civil disputes, or to try offences. Quasi-judicial, or administrative tribunals, or tribuna!J with limited authority are not within the scope of the discussion.\n\nBy Art. 32(2) this Court is invested with jurisdiction to issue writs, directions or orders for the enforcement of fundameal rights. Implicit in the claim for invoking this jurisdiction are two components: that the claimant has the fundamental freedom which is guaranteed by Part Ill of the Constitution, and that the freedom is directly infringed by the agency against whose action the protection is given. When it iscl, aimed that an order made pursuant to a judicial determination of a disputed question of law or fact infringes a fundamental right under Art. 19, the claimant has to establish that he has the right claimed, and that by the order made the Court has directly infringed that right. But the function of the Court is to determine facts on which claim to relief is founded, to apply the law to the faru so found, and to make an appropriate order concerning the righ13, liabilities and obligations of the parties in the light of the appropriate law. In granting relief to a party claiming to be aggrieved or in punishing an offender, the Court in substance declares that the party who claims that he is aggrieved has or has not a certain right and that the right was or was not infringed by the action of the other party, or that the offender by his action did or did not violate a law which prohibited the action charged against him. Such a determination by a Court therefore will not operate to infringe a fundamental right under Art. 19. The Court may in the ascertainment of facts or application of the law err: in the very mechanism of judicial determination that possibility cannot be ruled out, but until the determination is set aside by resort to the appropriate machinery set up in that behalf for rectification, a party to a proceeding cannot ignore that determination and seek relief on the footing that he has the right which ha~ been negatived by the Court. Since the first postulate of a plea of infringement of a fundamental right under Art. 19 is the eitistence of the right claimed and breach thereof by a State agency, a plea cannot be set up in a petition under Art. 32 contrary to an adjudication by a Court competent in that behalf.\n\nCounsel for the petitioners conceded that against a judicial determination of the rights, liabilities or obligations in a proceedin& and enforcement thereof according to law, a party thereto may not maintain a petition under Art. 32 on the plea that by an erroneous judicial determination a fundamcnta.1 right of the petitioner under Art. 19 is infringed, but they submitted th.at 'Yhere the order of a Court dealing with a dispute inter partes mfnnges .the fundamental right under Art. 19 of a stranger o the J?r.oceedmg. the order may in appropriate cases be challenged m a peht.1on under _ Art. 32. In my view there is no warrant for the reservahon stated\n\n-. .. 1-·\n\nMIUJL\\1. v. MAIUllASHTRA (Shah, !.) 803\n\nin that form. A Court in adjudicating upon a dispute has power for arriving at an effective and just decision to take all incidental steps for ensuring regularity and decorum in the conduct of its proceedings, and such steps may incidentally affect persons who are strangers to the litigation. The Court may issue a warrant to compel attendance of witnesses, attach property in the hands of strangers to the proceeding, correct mistakes in its proceedings even after rights of third parties have come into existence, set aside Court proceedings in cohtravention of its directions or procured by fraud, recall invalid orders which cause injustice, take contempt proceedings against witnesses and others who act in violation of the orders of the Court or otherwise obstruct proceedings of the Court directly or indirectly, and generally pass orders which may be necessary in the ends of justice to prevent abuse of the process of law. Jurisdiction to exercise those powers which may affect rights of persons other than those who are parties to the litigation is either. ellpressly granted by statute or arises from the necessity t6 regulate the course of its proceeding so as to make them an effective instrument for the administration of justice. If, as is accepted, and rightly, a judicial determination of the rights, privileges, duties and obligations of the parties before the Court does not attract the jurisdiction of this Court under Art. 32 of the Constitution for enforcement of the fundamental rights under Art. 19, it is difficult to appreciate on what grounds that jurisdiction may be attracted where a person other than the party to the proceeding is aggrieved hy an order of the Court made for ensuring an effective adjudication of the dispute.\n\nEven when the rights under Art. 19 of a third party are affected by an order made by a Court in a judicial proceeding, there is in a sense a disputed question which is raised before it about the right of that third person not to be dealt with in the manner in which the Court has acted or proposes to act, and the Court proceeds upon determination of that disputed question. Such a determination of the disputed question would be as much exempt from the jurisdiction of this Court to grant relief against infringement of a fundamental right under Art. 19, as a determination of the disputed question between the parties on merits or on procedure.\n\nAn order made against a stranger in aid of administration of justice between contending parties or for enforcement of its adjudication does not directly infringe any. fundamental rigltt under Art. 19 of the person affected thereby, for it is founded either expressly or by necessary implication upon the non-existence of the right claimed and so long as the order stands, it cannot be made the subject-matter of a petition under Art. 32 of the Constitution.\n\nIt was then urged by counsel for the petitioners that Tarkundc• J., had no jurisdiction to make the order prohibiting publication 0f the evidence of the witness Bhfilchand Goda, and on that account\n\n\n[1966) 3 S.C.R.\n\nthe order was liable to be challenged in a petition under Art. 32 of the Constitution.\n\nIndisputably when a Judge makes an order, not as a Jud11e but in some other capacity--but as an authority of the State-it may be open to challenge by a petition under Art. 32.\n\nBut an order made by a Court in the course of a proceeding which it has jurisdiction to entertain-whether the order relates to the substance of the dispute between the parties or to the procedure or to the rights of other person, it is not \\\\ ithout jurisdiction, merely\n\nbecause it is erroneous.\n\nThe Code of Civil Procedure contains no express prov1s1on\n\nautorising a Court to hold its proceedings in camera : but the Court has inherent jurisdiction to pass an order excluding the public when the nature of the case necessitates such a course to be adopted.\n\nHearing of proceedings in open Court undoubtedly tends to ensure untainted administration of justice and departure from that course may be permitted in exceptional circumstances, when the Court is either by statutory injunction compelled, or is in the exercise of its discretion satisfied, that unless the public are excluded from the courtroom, interests of justice may suffer irreparably. An order for hearing of a trial in camera is only intended to prevent excessive publication of the proceedings of the Court, if such excessive publication may, it is apprehended, cause grave harm either to the public interest or to the interests of the parties or witnesses, which cannot be offset by the interest which it is the object of a trial in open Court to serve.\n\nHearing in open Court of causes is of the utmost importance for maintaining confidence of the public in the impartial administration of justice : it operates as a wholesome check upon judicial behaviour as well as upon the conduct of the contending parties and their witnesses.\n\nBut hearing of a cause in public which is only to secure administration of justice untainted must yield to the paramount object of administration of justice.\n\nIf excessive publicity itself operates as an instrument of injustice, the Court may not be slow, if it is satisfied that it is necessary so to do to put such restraint upon publicity as is necessary to secure the Court's primary object. Trial in closed session is generally ordered to prevent publicity which is likely to deter parties or their witnesses from gi\\ ing evidence, on account of the nature of the evidence such as intimate details of sexual behaviour, matters relating to minors and lunatics, matters publication of which may harm the interests of the State or the public at large, for instance, disclosure of official secrets, or matters which lead to publication of secret processes, publication of which would destroy the very basis of the claim for relief etc.\n\nIn these cases the Cou!\" may hold a trial in closed session and wholly exclude the pubhc throughout the trial or a part thereof. Circumstances may also justify imposition of a partial ban on publicity in the interests of justice and the Court may instead of holding a trial in camera\n\n• c\n\n• --.\n\n---:....-·\n\n. •\n\nMJRAJILU v. MAHAIASBUA. (Shah, J.) 807\n\ntion whether the law which authorises the action falls within cl.(2) of Art. 19 may not be called for.\n\nIt was urged that the view which I have expressed may involve serious repercussions on the enforcement of fundamental rights guaranteed by Arts. 20, 21and22 (1) of the Constitution. Whether orders made by the Courts may violate the guarantees under Arts. 20, 21 & 22(1) and on that account be subject to the jurisdiction under Art. 32 does not fall to be determined in this case. The Attorney-General appearing on behalf of the State of Maharashtra contended that the freedoms guaranteed by Arts. 20, 21 & 22 are only in respect of laws made which seek prejudicially to affect persons in the manner indicated in those Articles. It was urged by counsel on behalf of the petitioner that these Articles grant protecti0n not only a gain st legislative and executive action but also against orders made by Courts. I refrain from expressing any opinion on this question. The area of fundamental freedoms guaranteed or declared by the various Articles of the Constitution must be determined in the light of the nature of the right conferred thereby, and the extlilllt of protection granted, the agency against the. action of which they are protected and the relief which may be claimed against infringement of those rights. Considerations which may be material or relevant in considering the nature of the right conferred ot guaranteed by one Article cannot be projected into considerations which may be material or relevant in dealing mth the infringement of a fundamental right guaranteed by another Article. Article 19 and Arts. 20, 21 & 22 are differently worded. Article 19 in terms protects certain personal freedoms of citizens only against invasion by the State othermse than by law existing or to be made in future and falling strictly mth in the limits prescribed by els. (2) to (6) : Arts. 20, 21 & 22('1) impose directly restrictions upon the power of authorities; Declaration of rights in favour of citizens as well as non-citizens under Arts. 20, 21 & 22(1) arises by implication of the prohibition against action of the authorities concerned to deal with them, and it would not be permissible to equate the guaranteed rights declared by implication in all respects with the specific personal freedoms enumerated in Art. 19. It is somewhat striking that the personal freedoms in Art. 19 are subject to reasonable restrictions which may be imposed by law, but the prohibitions in Arts. 20, 21 & 22 are absolute in terms. By enunciating the personal freedoms, under Art. 19(1) and setting up machinery for imposition of reasonable restrictions thereon, balance is sought to be maintained between the enforcement of specific rights of the citizens and the larger interest of the public. The freedoms declared by the implication of Arts. 20, 21 & 22 are on the other hand not liable to be tested on the touchstone of reasonableness. Our Constitution-makers thought that certain minimum safeguards in proceedings--<:riminal\n\n• 801 SUPJ.BMI comT J.BPOJ.TS\n\n\nand quasi-criminal---<annot in the larger interests of the public be permitted to be whittled down under any circumstances and on that account made the protection of Arts. 20, 21 & 22(1) absolute.\n\nThe form in which the rights under Arts. 20, 21 & 22(1) are gua- . ranteed and the absolute character of the injunctions against the\n\nathoritics clearly emphasize the distinct and special character of those rights.\n\nI do not find it necessary in this case to record my opinion on the question whether action taken by a Court which is prohibited under Arts. 20, 21 & 22 may form the subject-matter of a petition under Art. 32 of the Constitution.\n\nThe petitions therefore fail and are dismissed.\n\nBachawat, J. Counsel for the petitioners submitted that the High Court had no power to affect the right of the petitioners to publish reports of the deposition of Bhaichand Goda by an order passed in a proceeding to which they were not parties, and if there is a law which confers this pO\\..er, such a law is repugnant to Art. 19 (l)(a) of the Constitution. I do not accept either of these con tentions.\n\nIn agreement with the learned Chief Justice, I hold that the High Court in the exercise of its inherent powers can, in exceptional cases, pass an order restraining the publication of any matter in relation to any proceeding pending before it. The inherent powers of the Court arc preserved bys. 151 of the Code of Civil Procedure.\n\nIf a stranger to the proceeding feels aggrieved by the order, he may take appropriate steps for setting it aside, but while it lasts, it must be obeyed. Take a case where a Court appoints a receiver over a property in a suit concerning it.\n\nIf a. stranger interested in the property is prejudiced by the order, his proper course is to apply to the Court to enforce his right, and the Court will then examine his claim and give him the relief to which he may be entitled.\n\nSimilarly, if a stranger is prejudiced by an order forbidding the publication of the report of any proceeding. his proper course is to apply to the Court to lift the ban. But while the order remains in force, he must obey it. Wilful disobedience of the order is punishable as a contempt of Court, and it is not a defence that he was not a party to the procceding in which the order was passed.\n\nThe law empowering the High Court to restrain the publication of the report of its proceedings does not infringe Art. 19 (I)\n\n(a). If a law is attacked on the ground that it is repugnant to Art. 19 (l) (a), its true nature, object and effect should be closely examined. If the law directly abridges the freedom of speech, it H is repugnant to Art. 19 (I) (a) and must be struck dow!l .. On the other hand if it affects the freedom of speech only mc1dentally and indirectly, it does not infringe Art. 19 (l) (a). This test was\n\n~ -.\n\n• ..\n\n• -._\n\nMIRAJKAll v. MAHARASHTRA (Bachawat, !.) 809\n\nfirst laid down by Kania, C. J. in A. K. Gopalan v. State of Madras(') and has been subsequently adopted in numerous decisions of this Court. See Ram Singh v. State of Delhi(2) Express Newspapers (Private) Ltd. v. The Union of Jndia(3), Hamdard Dawakhana Wakf\n\nv. Union of India(<). Many laws incidentally encroach on the freedom of speech, but, judged by the test of the directness of the legislation, they do not infringe Art. 19 (1) (a). Section 54 of the Indian Specific Relief Act, 1877, empowers the Court to grant a perpetual injunction to prevent the breach of an obligation, and illustrations (h), (i), (v), (y) and (z) to the section show that the Court may restrain the publication of documents and information in breach of the fiduciary obligations of a legal or medical adviser or an employee, the piracy of a copyright and other publications infringing the proprietary rights of the owner. Order 39, r. I of the Code of Civil Procedure, 1908, empowers the Court to grant a temporary injunction restraining the defendant from publishing documents in breach of his obligation under a contract or otherwise during the pendency of a suit for restraining the breach. Section 22 of the Hindu Marriage Act, 1955, makes it unlawful for any person to print or publish any matter in relation to any proceeding under the Act conducted in camera without the previous permission of the Court. Under the rule of practice prevailing in the Bombay High Court, it is not permissible to print or publish in the press a report of any proceeding heard in chambers without the leave of the Judge, see Purushottam Hurjiwan v. Navnitlal Hurgovandas.(5) So also, the law relating to the inherent powers of the Court preserved by s. 151 of the Code of Civil Procedure enables the Court in the ends of justice to pass orders restraining the publication of the report of its proceeding during the pendency of the litigation.\n\nJudged by the test of the directness of the legislation, none of these laws infringes Art. 19 (!) (a). Instances may be multiplied. The law relating to discovery and interrogatories, the law which punishes a witness for giving false evidence, the law which compels the assessee to furnish a true return of his income and forbids the disclosure of the statements in the return are all outside the purview of Art. 19 (I) (a).\n\nIt follows that the impugned order was passed by a Court of competent jurisdiction under a valid law. Whether the High Court should have passed the order is another question. The propriety of the order cannot be challenged in a writ application under Art.\n\n32. Until the order is set aside in appropriate proceedings, it conclusively negatives the right of the petitioners to publish reports of the deposition of Bhaichand Goda. The petitioners cannot, therefore, complain that their fundamental right under Art. 19 (I) (a) has been infringed.\n\n(1) [19501 S.C.R. 88, 101.\n\n(2) [19511S.C.R.451.\n\n(3) [1959] S.C.R. 12, 129-133.\n\n\n(5) [1925] 1.L.R. 50 Bom. 275.\n\nM12Sup. C.1./66-6\n\nSUPREME COURT\n\nREPORTS\n\n[1966] 3 S.C.R\n\nThe High Court was competent to pass the impugned orders, but assuming that it exceeded its jurisdiction, the order does not infringe Art. 19 (I) (a). The High Court has jurisdiction to decide if it has jurisdiction to restrain the publication of any document or information relating to the trial of a pending suit or concerning which the suit is brought. If it erroneously assumes on this matter, a jurisdiction not vested in it by law, its decision may be set aside in appropriate proceedings, but the decision is not open to attack on the ground that it infringes the fundamental right under Art. 19 (I) (a).\n\nI must not be taken to say that I approve of the impugned order.\n\nA Court of justice is a public forum. It is through publicity that the citizens are convinced that the Court renders evenhanded justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the Court proceedings. The publicity generates public confidence in the administration of justice. In rare and exceptional cases only, the Court may hold the trial behind closed doors, or may forbid the publication of the report of its proceedings during the pendency of the litigation.\n\nLong ago, Plato observed in his Laws that the citizen should attend and listen attentively to the trials. Hegel in his Philosophy of Right maintained that judicial proceedings must be public, since the aim of the Court is justice, which is a universal belonging to all. The ancient idea found its echo in the celebrated case of Scott v. Scott('). Save in exceptional cases, the proceedings of a Court of justice should be open to the public.\n\nThe petitions are not maintainable, and are dismissed.\n\nORDER\n\nIn accordance with the opinion of the majority these Writ F Petitions are dismissed.\n\nNo order as to costs.\n\n(I) [1913] A.C. 417\n\n->", "total_entities": 387, "entities": [{"text": "NARFSH SHRIDHAR., MIRAJKAR AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "NARFSH SHRIDHAR., MIRAJKAR AND ORS", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA AND ANR", "label": "RESPONDENT", "start_char": 42, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA AND ANR", "offset_not_found": false}}, {"text": "GAJENDRAGADKAR", "label": "JUDGE", "start_char": 96, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "A. K. 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(dissenting) : The order commih a breach of the fundamental right of freedom of speech and \"'preosion. (", "canonical_name": "HIDAYATUl.LAH"}}, {"text": "Arts. 12 and 13", "label": "PROVISION", "start_char": 5527, "end_char": 5542, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 6157, "end_char": 6166, "source": "ner", "metadata": {"in_sentence": "iii) (Per Gajendragadkar C.J., Wanchoo, Mudholkar, Sikri and JWnuwami, JJ.) :", "canonical_name": "R. 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Karanjia"}}, {"text": "Tarkunde", "label": "JUDGE", "start_char": 11799, "end_char": 11807, "source": "ner", "metadata": {"in_sentence": "This suit was tried by Mr. Justice Tarkunde.", "canonical_name": "YI Tarkunde"}}, {"text": "China Cotton Exporters", "label": "ORG", "start_char": 11896, "end_char": 11918, "source": "ner", "metadata": {"in_sentence": "One of the allegations which had been made in the said article was to the effect that China Cotton Exporters, of which Mr.\n\nThackersey was a partner, had obtained licences for import of art silk yarn on condition that the same would be sold to handloom weavers only; and that in order to sell the said silk yam in the black market with a view to realise higher profits, three bogus handloom factories were created on paper and bills and invoices were made with a view to create the impression that the condition on which the licences had been granted to China Cotton Exporters, had been complied with."}}, {"text": "Thackersey", "label": "OTHER_PERSON", "start_char": 11934, "end_char": 11944, "source": "ner", "metadata": {"in_sentence": "One of the allegations which had been made in the said article was to the effect that China Cotton Exporters, of which Mr.\n\nThackersey was a partner, had obtained licences for import of art silk yarn on condition that the same would be sold to handloom weavers only; and that in order to sell the said silk yam in the black market with a view to realise higher profits, three bogus handloom factories were created on paper and bills and invoices were made with a view to create the impression that the condition on which the licences had been granted to China Cotton Exporters, had been complied with."}}, {"text": "National Handloom Weaving Works", "label": "ORG", "start_char": 12778, "end_char": 12809, "source": "ner", "metadata": {"in_sentence": "997 and 998 of 1951 which had been instituted by China Cotton Exporters against National Handloom Weaving Works; Rayon Handloom Industries, and one Bhaichand G. Goda."}}, {"text": "Rayon Handloom Industries", "label": "ORG", "start_char": 12811, "end_char": 12836, "source": "ner", "metadata": {"in_sentence": "997 and 998 of 1951 which had been instituted by China Cotton Exporters against National Handloom Weaving Works; Rayon Handloom Industries, and one Bhaichand G. Goda."}}, {"text": "Bhaichand G. Goda", "label": "OTHER_PERSON", "start_char": 12846, "end_char": 12863, "source": "ner", "metadata": {"in_sentence": "997 and 998 of 1951 which had been instituted by China Cotton Exporters against National Handloom Weaving Works; Rayon Handloom Industries, and one Bhaichand G. Goda.", "canonical_name": "Bhaichand G. 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Goda"}}, {"text": "Blitz", "label": "OTHER_PERSON", "start_char": 13225, "end_char": 13230, "source": "ner", "metadata": {"in_sentence": "The said Bhaichand Goda had, in the course of insolvency proceedings which had been taken out in execution of the decrees passed against him, made an affidavit which seemed to support the main points of the allegations made by the Blitz in its article \"Scandal Bigger Than Mundhra\"."}}, {"text": "Karanjia", "label": "OTHER_PERSON", "start_char": 13373, "end_char": 13381, "source": "ner", "metadata": {"in_sentence": "During the course of the trial, the said Bhaichand Goda was called as a defence witness by Mr. Karanjia."}}, {"text": "Goda", "label": "OTHER_PERSON", "start_char": 13407, "end_char": 13411, "source": "ner", "metadata": {"in_sentence": "In the witness-box, Mr. Goda feigned complete ignorance of the said transactions; and under protection given to him by the learned Judge who was trying the action, he repudiated every one of the allegations he had made against Mr. Thackersey's concern in the said affidavit."}}, {"text": "23rd October, 1964", "label": "DATE", "start_char": 14619, "end_char": 14637, "source": "ner", "metadata": {"in_sentence": "On Friday, the 23rd October, 1964, Mr. Goda stepped into the witness-box in pursuance of the order passed by the learned Judge that he should be recalled for further examination."}}, {"text": "Indian Express", "label": "RESPONDENT", "start_char": 15437, "end_char": 15451, "source": "ner", "metadata": {"in_sentence": "The Times of India' and\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n[ 1966] 3 S.C.R.\n\n'The Indian Express' gave only brief accounts of the proceedings before the Court in that case, whereas the 'Blitz' gave a full report of the said proceedings."}}, {"text": "Zaveri", "label": "OTHER_PERSON", "start_char": 15624, "end_char": 15630, "source": "ner", "metadata": {"in_sentence": "The learned Judge then told Mr. Zaveri, Counsel for Mr. Karanjia that the petitioner who was one of the reporters of the 'Blitz' should be told not to publish reports of Mr.\n\nGoda's evidence in the 'Blitz'."}}, {"text": "Chari", "label": "OTHER_PERSON", "start_char": 15947, "end_char": 15952, "source": "ner", "metadata": {"in_sentence": "On Monday, the 26th October, 1964, Mr. Chari appeared for Mr. Karanjia and urged before the learned Judge that the fundamental principle in the administration of justice was that it must be open to the public and that exceptions to such public administration of justice were rare."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 17149, "end_char": 17166, "source": "ner", "metadata": {"in_sentence": "The petitioner felt aggrieved by the said oral order passed by Mr. Justice Tarkunde and moved the Bombay High Court by a Writ Petition No."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 17209, "end_char": 17217, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "10th November, 1964", "label": "DATE", "start_char": 17332, "end_char": 17351, "source": "ner", "metadata": {"in_sentence": "The said petition was, however, dismissed by a Division Bench of the said High Court on the 10th November, 1964 on the ground that the impugned order was a judicial order of the High Court and was not amenable to a writ under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 17466, "end_char": 17474, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 17530, "end_char": 17537, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19(1)(a)", "label": "PROVISION", "start_char": 17590, "end_char": 17603, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "P. R. Menon", "label": "OTHER_PERSON", "start_char": 17768, "end_char": 17779, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nP. R. Menon, Mr. M. P. Iyer, and Mr. P. K. Aire, the three petitioners in these petitions respectively, arc Journalists, and they have also challenged the validity of the impugned order and have moved this Court under Art."}}, {"text": "M. P. Iyer", "label": "OTHER_PERSON", "start_char": 17785, "end_char": 17795, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nP. R. Menon, Mr. M. P. Iyer, and Mr. P. K. Aire, the three petitioners in these petitions respectively, arc Journalists, and they have also challenged the validity of the impugned order and have moved this Court under Art."}}, {"text": "P. K. Aire", "label": "OTHER_PERSON", "start_char": 17805, "end_char": 17815, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nP. R. Menon, Mr. M. P. Iyer, and Mr. P. K. Aire, the three petitioners in these petitions respectively, arc Journalists, and they have also challenged the validity of the impugned order and have moved this Court under Art."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 17986, "end_char": 17993, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "S1", "label": "PROVISION", "start_char": 18345, "end_char": 18347, "source": "regex", "metadata": {"statute": null}}, {"text": "Kania", "label": "JUDGE", "start_char": 18366, "end_char": 18371, "source": "ner", "metadata": {"in_sentence": "In A.K. Gopalan v. 711e S1are of Madras( 1), Kania C. 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Gopalan(') had not received the concurrence of the other learned Judges who heard the said case."}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 20432, "end_char": 20439, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Setalvad", "label": "OTHER_PERSON", "start_char": 20737, "end_char": 20745, "source": "ner", "metadata": {"in_sentence": "It is, however, urged by Mr. Setalvad that this Court has held in Budhan Clzoudhry and Others v.\n\nThe State of Bihar(S) that judicial orders based on exercise of judicial discretion may contravene Art."}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 21298, "end_char": 21305, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 21389, "end_char": 21399, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Budhan Chaudhry", "label": "OTHER_PERSON", "start_char": 21497, "end_char": 21512, "source": "ner", "metadata": {"in_sentence": "In the case of Budhan Chaudhry('), the matter had come to this Court by way of appeal under Art."}}, {"text": "Art. 132(1)", "label": "PROVISION", "start_char": 21574, "end_char": 21585, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 30", "label": "PROVISION", "start_char": 21689, "end_char": 21694, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 21702, "end_char": 21728, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 366 and 143", "label": "PROVISION", "start_char": 21746, "end_char": 21761, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 21769, "end_char": 21786, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 366", "label": "PROVISION", "start_char": 21907, "end_char": 21913, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 143", "label": "PROVISION", "start_char": 21962, "end_char": 21968, "source": "regex", "metadata": {"statute": null}}, {"text": "Patna High Court", "label": "COURT", "start_char": 22101, "end_char": 22117, "source": "ner", "metadata": {"in_sentence": "They then challenged the correctness and validity of the order of their conviction and sentence by preferring an appeal before the Patna High Court."}}, {"text": "S. K. Das", "label": "JUDGE", "start_char": 22172, "end_char": 22181, "source": "ner", "metadata": {"in_sentence": "The appeal was first heard by a Bench consisting of S. K. Das and C. P. Sinha, JJ.", "canonical_name": "S. K. Das"}}, {"text": "C. P. Sinha", "label": "JUDGE", "start_char": 22186, "end_char": 22197, "source": "ner", "metadata": {"in_sentence": "The appeal was first heard by a Bench consisting of S. K. Das and C. P. Sinha, JJ."}}, {"text": "s. 30", "label": "PROVISION", "start_char": 22309, "end_char": 22314, "source": "regex", "metadata": {"statute": null}}, {"text": "Das", "label": "JUDGE", "start_char": 22326, "end_char": 22329, "source": "ner", "metadata": {"in_sentence": "P.C.\n\nDas, J. took the view that the impugned section did not bring about any discrimination, whereas Sinha, J. was of the opinion that the impugned section was hit by Art, 14."}}, {"text": "Sinha", "label": "JUDGE", "start_char": 22422, "end_char": 22427, "source": "ner", "metadata": {"in_sentence": "P.C.\n\nDas, J. took the view that the impugned section did not bring about any discrimination, whereas Sinha, J. was of the opinion that the impugned section was hit by Art, 14."}}, {"text": "Reuben", "label": "JUDGE", "start_char": 22526, "end_char": 22532, "source": "ner", "metadata": {"in_sentence": "The appeal was then heard by Reuben, C. J., who agreed with Das, J., with the result that the order of conviction and sentence passed against the appellants was confirmed."}}, {"text": "Art. 132", "label": "PROVISION", "start_char": 22743, "end_char": 22751, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 22909, "end_char": 22915, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 22963, "end_char": 22970, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "s. 366", "label": "PROVISION", "start_char": 23325, "end_char": 23331, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "section 30", "label": "PROVISION", "start_char": 23337, "end_char": 23347, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 23683, "end_char": 23690, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "S. R. Das", "label": "JUDGE", "start_char": 23692, "end_char": 23701, "source": "ner", "metadata": {"in_sentence": "S. R. Das, J., as he then was, who spoke for the Court, considered this contention, referred with approval to the observations made by Frankfurter, J., and Stone, C.J., of .iie Supreme Court of the United States in Snowden v. Hughes(2), and observed that the judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may not\n\n0) [1955] I S.C.R. 1045.", "canonical_name": "S. K. Das"}}, {"text": "Frankfurter", "label": "JUDGE", "start_char": 23827, "end_char": 23838, "source": "ner", "metadata": {"in_sentence": "S. R. Das, J., as he then was, who spoke for the Court, considered this contention, referred with approval to the observations made by Frankfurter, J., and Stone, C.J., of .iie Supreme Court of the United States in Snowden v. Hughes(2), and observed that the judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may not\n\n0) [1955] I S.C.R. 1045.", "canonical_name": "Frank furter"}}, {"text": "Stone", "label": "JUDGE", "start_char": 23848, "end_char": 23853, "source": "ner", "metadata": {"in_sentence": "S. R. Das, J., as he then was, who spoke for the Court, considered this contention, referred with approval to the observations made by Frankfurter, J., and Stone, C.J., of .iie Supreme Court of the United States in Snowden v. Hughes(2), and observed that the judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may not\n\n0) [1955] I S.C.R. 1045."}}, {"text": "Supreme Court of the United States", "label": "COURT", "start_char": 23869, "end_char": 23903, "source": "ner", "metadata": {"in_sentence": "S. R. Das, J., as he then was, who spoke for the Court, considered this contention, referred with approval to the observations made by Frankfurter, J., and Stone, C.J., of .iie Supreme Court of the United States in Snowden v. Hughes(2), and observed that the judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may not\n\n0) [1955] I S.C.R. 1045."}}, {"text": "SUPREME COURT lll!POllTS\n\n[1966) 3 S.C.R", "label": "COURT", "start_char": 24196, "end_char": 24236, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT lll!POllTS\n\n[1966) 3 S.C.R\n\nnecessarily amount to a denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful discrimination."}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 24512, "end_char": 24519, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Frank furter", "label": "JUDGE", "start_char": 24899, "end_char": 24911, "source": "ner", "metadata": {"in_sentence": "It is thus clear that though the observations made by Frank furter, J. and Stone, C. J. in Snowden v.\n\nHughes(!)", "canonical_name": "Frank furter"}}, {"text": "Art. 32(1)", "label": "PROVISION", "start_char": 25081, "end_char": 25091, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 30", "label": "PROVISION", "start_char": 25416, "end_char": 25421, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 132(1)", "label": "PROVISION", "start_char": 25711, "end_char": 25722, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 26152, "end_char": 26159, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 26595, "end_char": 26602, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 27311, "end_char": 27318, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 27640, "end_char": 27647, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 27782, "end_char": 27789, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 28045, "end_char": 28052, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 28241, "end_char": 28248, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Parbhani Transport Co-operative Society Ltd.", "label": "ORG", "start_char": 28371, "end_char": 28415, "source": "ner", "metadata": {"in_sentence": "It is significant that these observations have been made while dealing with a writ petition filed by the petitioner, the Parbhani Transport Co-operative Society Ltd. under Art."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 28422, "end_char": 28429, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32(2)", "label": "PROVISION", "start_char": 28676, "end_char": 28686, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Prem Chand Garg", "label": "PETITIONER", "start_char": 28840, "end_char": 28855, "source": "ner", "metadata": {"in_sentence": "In that case, the petitioner Prem Chand Garg had been required to furnish security for the costs of the respondent under r. 12 of 0 XXXV of the Supreme Court Rules.", "canonical_name": "Prem Chand Garg"}}, {"text": "XXXV of the Supreme Court Rules", "label": "STATUTE", "start_char": 28943, "end_char": 28974, "source": "regex", "metadata": {}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 29004, "end_char": 29011, "source": "regex", "metadata": {"linked_statute_text": "XXXV of the Supreme Court Rules", "statute": "XXXV of the Supreme Court Rules"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 29121, "end_char": 29128, "source": "regex", "metadata": {"linked_statute_text": "XXXV of the Supreme Court Rules", "statute": "XXXV of the Supreme Court Rules"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 29574, "end_char": 29581, "source": "regex", "metadata": {"linked_statute_text": "XXXV of the Supreme Court Rules", "statute": "XXXV of the Supreme Court Rules"}}, {"text": "Art. 32(1)", "label": "PROVISION", "start_char": 29886, "end_char": 29896, "source": "regex", "metadata": {"linked_statute_text": "XXXV of the Supreme Court Rules", "statute": "XXXV of the Supreme Court Rules"}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 30126, "end_char": 30134, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32( I)", "label": "PROVISION", "start_char": 30522, "end_char": 30533, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Pathak", "label": "OTHER_PERSON", "start_char": 30559, "end_char": 30565, "source": "ner", "metadata": {"in_sentence": "On the other hand, Mr. Pathak who challenged the validity of the Rule, urged that though the Rule was in form and in substance discretionary, he disputed the validity of the power which the Rule conferred on this Court to demand security."}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 30800, "end_char": 30808, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 30874, "end_char": 30881, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 145", "label": "PROVISION", "start_char": 30961, "end_char": 30969, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32(1)", "label": "PROVISION", "start_char": 31110, "end_char": 31120, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 31277, "end_char": 31285, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 31445, "end_char": 31453, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32(1)", "label": "PROVISION", "start_char": 31857, "end_char": 31867, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Prem Chand Garg", "label": "PETITIONER", "start_char": 32045, "end_char": 32060, "source": "ner", "metadata": {"in_sentence": "It would thus be seen that the main controversy in the case of Prem Chand Garg(') centered round the question as to whether Art.", "canonical_name": "Prem Chand Garg"}}, {"text": "Art. 145", "label": "PROVISION", "start_char": 32106, "end_char": 32114, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 32291, "end_char": 32299, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "What was held by this Court was that Rule", "label": "STATUTE", "start_char": 33045, "end_char": 33086, "source": "regex", "metadata": {}}, {"text": "Art. 145", "label": "PROVISION", "start_char": 33128, "end_char": 33136, "source": "regex", "metadata": {"linked_statute_text": "What was held by this Court was that Rule", "statute": "What was held by this Court was that Rule"}}, {"text": "Art. 145", "label": "PROVISION", "start_char": 33340, "end_char": 33348, "source": "regex", "metadata": {"linked_statute_text": "What was held by this Court was that Rule", "statute": "What was held by this Court was that Rule"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 33609, "end_char": 33616, "source": "regex", "metadata": {"linked_statute_text": "What was held by this Court was that Rule", "statute": "What was held by this Court was that Rule"}}, {"text": "Art. 137", "label": "PROVISION", "start_char": 34116, "end_char": 34124, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 34139, "end_char": 34146, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32(2)", "label": "PROVISION", "start_char": 34468, "end_char": 34478, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 34726, "end_char": 34733, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32(2)", "label": "PROVISION", "start_char": 34945, "end_char": 34955, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 35180, "end_char": 35187, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 35485, "end_char": 35492, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32(2)", "label": "PROVISION", "start_char": 35637, "end_char": 35647, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 35718, "end_char": 35726, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 35787, "end_char": 35795, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32( l )", "label": "PROVISION", "start_char": 35962, "end_char": 35974, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 36059, "end_char": 36067, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Mukherjea", "label": "JUDGE", "start_char": 36276, "end_char": 36285, "source": "ner", "metadata": {"in_sentence": "The first point which was made clear by Mukherjea, J., who spoke for the Court, was that \"in view of the express provisions in our Constitution, we need not now look back\n\n(I) [1963] Supp."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 38631, "end_char": 38639, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 38663, "end_char": 38670, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 38813, "end_char": 38820, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 39124, "end_char": 39131, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Ujjam Bai,(1", "label": "OTHER_PERSON", "start_char": 39659, "end_char": 39671, "source": "ner", "metadata": {"in_sentence": "1 • D\n\nMIRAJKAR v. MAHARASHTRA ( Gajendragadkar, C.J.) 7 6f)·\n\nAccording to the majority decision in the case of Ujjam Bai,(1} it appears that where a quasi-judicial authority makes an order in the undoubted exercise of its jurisdiction in pursuance of a provision of law which is intra vires, an error of law or fact committed by that authority cannot be impeached otherwise than on appeal, unless the erroneous determination relates to.", "canonical_name": "Ujjam Bai's(1"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 40664, "end_char": 40672, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 41635, "end_char": 41642, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19(l)(f)", "label": "PROVISION", "start_char": 41688, "end_char": 41701, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 41706, "end_char": 41713, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 42147, "end_char": 42154, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": ".Ujjam Bai", "label": "OTHER_PERSON", "start_char": 42918, "end_char": 42928, "source": "ner", "metadata": {"in_sentence": ".Ujjam Bai( 1 ), we have already indicated that it was not disputed before the Court in that case that where the action taken against a\n\nitizen is procedurally ultra l'ire.1, the aggrieved party can move this <:ourt under Art.", "canonical_name": "Ujjam Bai's(1"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 43140, "end_char": 43147, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "clause\n\n10", "label": "PROVISION", "start_char": 43401, "end_char": 43411, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 43612, "end_char": 43619, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 43878, "end_char": 43886, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 43910, "end_char": 43917, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 44092, "end_char": 44099, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "loda", "label": "OTHER_PERSON", "start_char": 44307, "end_char": 44311, "source": "ner", "metadata": {"in_sentence": "We have already seen that the impugned order was p; issed by the learned Judge after hearing the parties and it \\\\'aS passed presumably because he was satisfied that the ends of justice required that Mr. (loda should he given protection by prohibiting the publication of his evidence in the newspapers during the course of the trial."}}, {"text": "Art. 327", "label": "PROVISION", "start_char": 45336, "end_char": 45344, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 45518, "end_char": 45526, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 45789, "end_char": 45796, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 46161, "end_char": 46169, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 46257, "end_char": 46264, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 215", "label": "PROVISION", "start_char": 46622, "end_char": 46630, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Keshav Singh", "label": "OTHER_PERSON", "start_char": 47037, "end_char": 47049, "source": "ner", "metadata": {"in_sentence": "In that case, it was urged before this Court that in granting bail to Keshav Singh, the High Court bad exceeded its jurisdiction and as such, the order was a nullity."}}, {"text": "England", "label": "GPE", "start_char": 47749, "end_char": 47756, "source": "ner", "metadata": {"in_sentence": "In support of this view, this Court cited a passage from Halsbury's Laws of England where it is observed that \"prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court.\"(')"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 49646, "end_char": 49653, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 49902, "end_char": 49909, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 50508, "end_char": 50515, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Halsbury", "label": "OTHER_PERSON", "start_char": 50635, "end_char": 50643, "source": "ner", "metadata": {"in_sentence": "Whilst we are dealing with this aspect of the matter, we may incidentally refer to the relevant observations made by Halsbury on this point. \""}}, {"text": "Wrottesley", "label": "JUDGE", "start_char": 52050, "end_char": 52060, "source": "ner", "metadata": {"in_sentence": "In dealing with this question, Wrottesley, L. J. has elaborately considered the history of the writ jurisdiction and has dealt with the question about the meaning of the word \"inferior\" as applied to courts of law in England in discussing the problem as to the issue of the writ in regard to decisions of certain courts. \""}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 53363, "end_char": 53366, "source": "ner", "metadata": {"in_sentence": "Mr. Sen relied upon this decision to show that even the High Court of Bombay can be said to be an inferior court for the purpose of exercising jurisdiction by this Court under Art."}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 53415, "end_char": 53435, "source": "ner", "metadata": {"in_sentence": "Mr. Sen relied upon this decision to show that even the High Court of Bombay can be said to be an inferior court for the purpose of exercising jurisdiction by this Court under Art."}}, {"text": "Art. 32(2)", "label": "PROVISION", "start_char": 53535, "end_char": 53545, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 54164, "end_char": 54171, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 54456, "end_char": 54463, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 54483, "end_char": 54490, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 54745, "end_char": 54752, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "High Court at Bombay", "label": "COURT", "start_char": 55172, "end_char": 55192, "source": "ner", "metadata": {"in_sentence": "Sarkar, J. Tarkunde J. of the High Court at Bombay, while hearing a suit in the exercise of the ordinary original civil jurisdiction of that Court, passed an order prohibiting publication of a part of the proceedings."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 55469, "end_char": 55476, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 55744, "end_char": 55751, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 55989, "end_char": 55996, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 56457, "end_char": 56464, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Ujjam Bai", "label": "OTHER_PERSON", "start_char": 58250, "end_char": 58259, "source": "ner", "metadata": {"in_sentence": "But I am unable to agree that he had thereby exceeded his jurisdiction in the sense in which that word was used by this Court in Ujjam Bai's(') case.", "canonical_name": "Ujjam Bai's(1"}}, {"text": "High Court of England", "label": "COURT", "start_char": 58481, "end_char": 58502, "source": "ner", "metadata": {"in_sentence": "in Scott v. Scoll.(2) That was a case in which the trial of matrimonial case was ordered by a learned Judge of the High Court of England, trying the case as a court of first instance, to be held in rnmera."}}, {"text": "Ujjam Bell", "label": "OTHER_PERSON", "start_char": 59557, "end_char": 59567, "source": "ner", "metadata": {"in_sentence": "When this Court observed in Ujjam Bell's(') case that the order had to be within the jurisdiction of the tribunal which made it, it really meant that the tribunal had to have jurisdiction to decide matters that were litigated before it and to apply the law which it, in fact, applied in making the order."}}, {"text": "Ujjam Bai'~", "label": "OTHER_PERSON", "start_char": 60004, "end_char": 60015, "source": "ner", "metadata": {"in_sentence": "In coming to its conclusion in Ujjam Bai'~(') case, this Court assumed that the assessing autliority misinterpreted the law which it bad jurisdiction to apply, but held that nonetheless he bad acted within bis jurisdiction and was not acting without jurisdiction.", "canonical_name": "Ujjam Bai's(1"}}, {"text": "Tarkundc", "label": "JUDGE", "start_char": 61082, "end_char": 61090, "source": "ner", "metadata": {"in_sentence": "I turn now to the question whether the law which Tarkundc J. had applied was a valid law.", "canonical_name": "YI Tarkunde"}}, {"text": "Art. 19(1)(a)", "label": "PROVISION", "start_char": 61232, "end_char": 61245, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "India", "label": "GPE", "start_char": 62457, "end_char": 62462, "source": "ner", "metadata": {"in_sentence": "An order directing a trial to be held in camera prohibits entry into the court but I do not think that it can be said that it thereby offends the right to move freely throughout India which is given by sub-cl. ("}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 62507, "end_char": 62514, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 62715, "end_char": 62722, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 65406, "end_char": 65413, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 68046, "end_char": 68053, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 69481, "end_char": 69488, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Ujjam Bai's(1", "label": "OTHER_PERSON", "start_char": 70532, "end_char": 70545, "source": "ner", "metadata": {"in_sentence": "The case will still be covered by the principle laid down in Ujjam Bai's(1) case It would still be a judicial order made within the jurisdiction of the Judge making\n\nit and based on a good law.", "canonical_name": "Ujjam Bai's(1"}}, {"text": "YI Tarkunde", "label": "JUDGE", "start_char": 71799, "end_char": 71810, "source": "ner", "metadata": {"in_sentence": "Therefore, it seems to me that on the authority and the principle of Ujjam Bai' s ( 1) case it must be held that the order <YI Tarkunde J. did not violate any fundamental right of the petitioners and the petitions must fail.", "canonical_name": "YI Tarkunde"}}, {"text": "Ujjam Bai's(I", "label": "OTHER_PERSON", "start_char": 72056, "end_char": 72069, "source": "ner", "metadata": {"in_sentence": "I find nothing in them which conflicts with the principle enunciated in Ujjam Bai's(I) case.", "canonical_name": "Ujjam Bai's(1"}}, {"text": "Krishnaraja M.D. Thakersey", "label": "PETITIONER", "start_char": 76189, "end_char": 76215, "source": "ner", "metadata": {"in_sentence": "The facts are these:\n\nIn a sensational libel suit, on the original side of the High Court of Bombay, between one Mr. Krishnaraja M.D. Thakersey and Mr. R.K. Karanjia, Editor of the \"Blitz\" (an English weekly newspaper of Bombay), one Bhaichand Goda was cited as a witness for the defence.", "canonical_name": "Krishnaraj M. D. Thackersey"}}, {"text": "R.K. Karanjia", "label": "LAWYER", "start_char": 76224, "end_char": 76237, "source": "ner", "metadata": {"in_sentence": "The facts are these:\n\nIn a sensational libel suit, on the original side of the High Court of Bombay, between one Mr. Krishnaraja M.D. Thakersey and Mr. R.K. Karanjia, Editor of the \"Blitz\" (an English weekly newspaper of Bombay), one Bhaichand Goda was cited as a witness for the defence.", "canonical_name": "R. K. Karanjia"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 77964, "end_char": 77971, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19(l)(a)", "label": "PROVISION", "start_char": 78090, "end_char": 78103, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 78652, "end_char": 78659, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Hallam", "label": "OTHER_PERSON", "start_char": 79331, "end_char": 79337, "source": "ner", "metadata": {"in_sentence": "lbis principle is old and according to Hallam it is a direct guarantee of civil liberty and it moved Bentham to say that it was the soul of Justice and that in proportion as publicity had place, the checks on judicial injustice could be found."}}, {"text": "Bentham", "label": "OTHER_PERSON", "start_char": 79393, "end_char": 79400, "source": "ner", "metadata": {"in_sentence": "lbis principle is old and according to Hallam it is a direct guarantee of civil liberty and it moved Bentham to say that it was the soul of Justice and that in proportion as publicity had place, the checks on judicial injustice could be found."}}, {"text": "Louis XIV", "label": "OTHER_PERSON", "start_char": 79764, "end_char": 79773, "source": "ner", "metadata": {"in_sentence": "ft is because English trial has not known the Lettres de cachet of Louis XIV and all its state trials were public, that the Selden Society has been able to collect the cases of the Star Chamber and we have the verbatim\n\nreports of almost all state trials."}}, {"text": "Emlyn", "label": "OTHER_PERSON", "start_char": 79956, "end_char": 79961, "source": "ner", "metadata": {"in_sentence": "As Emlyn in his preface to the State Trials says proudly :\n\n\"In other countries the courts of Justice are held in secret; with us publicly and in open view; there the witnesses are examined in private, and in the prisoner's absence;\n\nwith us face to face, and in the prisoner's presence.\""}}, {"text": "Denman", "label": "JUDGE", "start_char": 81111, "end_char": 81117, "source": "ner", "metadata": {"in_sentence": "In Mala11 v. You11g(') (in the Shcrborne School~ libel case) Lord Denman (then Denman J.) with the consent of the ' parties made an order for hearing in cemera and a part of the case was so heard."}}, {"text": "Atkinson", "label": "OTHER_PERSON", "start_char": 81986, "end_char": 81994, "source": "ner", "metadata": {"in_sentence": "I respectfully agree with the Earl of Halsbury, who in the same case, commented upon the width of the Lord Chancellor\"s language and with Lord Atkinson who pointed out that in Clement's case there were many persons being tried for high treason and as the challenges to the jury were different, a large number of trials with common witnesses had to be held and publication was withheld so that others might not be prejudiced."}}, {"text": "Halsbury", "label": "GPE", "start_char": 83205, "end_char": 83213, "source": "ner", "metadata": {"in_sentence": "emphasis added)\n\nThe Earl of Halsbury also expressed amazement that asingle Judge (Sir Francis Jeune) should overrule \"three such leamee Judges as Sir Cresswell Cresswell, Williams J. and Bramwell B.\" who in H (falsely called C) v C.(2) had expressed different opinion in ri:lation to hearing in camera on the request of parties."}}, {"text": "Francis Jeune", "label": "JUDGE", "start_char": 83263, "end_char": 83276, "source": "ner", "metadata": {"in_sentence": "emphasis added)\n\nThe Earl of Halsbury also expressed amazement that asingle Judge (Sir Francis Jeune) should overrule \"three such leamee Judges as Sir Cresswell Cresswell, Williams J. and Bramwell B.\" who in H (falsely called C) v C.(2) had expressed different opinion in ri:lation to hearing in camera on the request of parties.", "canonical_name": "Francis Jeune"}}, {"text": "Cresswell Cresswell", "label": "JUDGE", "start_char": 83327, "end_char": 83346, "source": "ner", "metadata": {"in_sentence": "emphasis added)\n\nThe Earl of Halsbury also expressed amazement that asingle Judge (Sir Francis Jeune) should overrule \"three such leamee Judges as Sir Cresswell Cresswell, Williams J. and Bramwell B.\" who in H (falsely called C) v C.(2) had expressed different opinion in ri:lation to hearing in camera on the request of parties."}}, {"text": "Williams", "label": "JUDGE", "start_char": 83348, "end_char": 83356, "source": "ner", "metadata": {"in_sentence": "emphasis added)\n\nThe Earl of Halsbury also expressed amazement that asingle Judge (Sir Francis Jeune) should overrule \"three such leamee Judges as Sir Cresswell Cresswell, Williams J. and Bramwell B.\" who in H (falsely called C) v C.(2) had expressed different opinion in ri:lation to hearing in camera on the request of parties."}}, {"text": "Bramwell B.", "label": "JUDGE", "start_char": 83364, "end_char": 83375, "source": "ner", "metadata": {"in_sentence": "emphasis added)\n\nThe Earl of Halsbury also expressed amazement that asingle Judge (Sir Francis Jeune) should overrule \"three such leamee Judges as Sir Cresswell Cresswell, Williams J. and Bramwell B.\" who in H (falsely called C) v C.(2) had expressed different opinion in ri:lation to hearing in camera on the request of parties."}}, {"text": "Shaw", "label": "OTHER_PERSON", "start_char": 83512, "end_char": 83516, "source": "ner", "metadata": {"in_sentence": "Lord Shaw of Dunfermline also called the dictum of Sir Francis Jeune in D. v. D. \"to be historically and legally indefensible.\""}}, {"text": "Dunfermline", "label": "GPE", "start_char": 83520, "end_char": 83531, "source": "ner", "metadata": {"in_sentence": "Lord Shaw of Dunfermline also called the dictum of Sir Francis Jeune in D. v. D. \"to be historically and legally indefensible.\""}}, {"text": "Francis Jeune", "label": "JUDGE", "start_char": 83562, "end_char": 83575, "source": "ner", "metadata": {"in_sentence": "Lord Shaw of Dunfermline also called the dictum of Sir Francis Jeune in D. v. D. \"to be historically and legally indefensible.\"", "canonical_name": "Francis Jeune"}}, {"text": "Earl Loreburn", "label": "OTHER_PERSON", "start_char": 83635, "end_char": 83648, "source": "ner", "metadata": {"in_sentence": "Earl Loreburn, however, agreed with the principle as enunciated and was in favour of its being exercised liberally.", "canonical_name": "F.arl Loreburn"}}, {"text": "Viscount Haldane", "label": "OTHER_PERSON", "start_char": 83805, "end_char": 83821, "source": "ner", "metadata": {"in_sentence": "The head-nole in the law report sets out the views of Viscount Haldane and F.arl Loreburn separately from the main decision."}}, {"text": "F.arl Loreburn", "label": "OTHER_PERSON", "start_char": 83826, "end_char": 83840, "source": "ner", "metadata": {"in_sentence": "The head-nole in the law report sets out the views of Viscount Haldane and F.arl Loreburn separately from the main decision.", "canonical_name": "F.arl Loreburn"}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 84009, "end_char": 84016, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 13(2)", "label": "PROVISION", "start_char": 84293, "end_char": 84303, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "XV of the Supreme Court Rules", "label": "STATUTE", "start_char": 84531, "end_char": 84560, "source": "regex", "metadata": {}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 84709, "end_char": 84716, "source": "regex", "metadata": {"linked_statute_text": "XV of the Supreme Court Rules", "statute": "XV of the Supreme Court Rules"}}, {"text": "Art. 20", "label": "PROVISION", "start_char": 85381, "end_char": 85388, "source": "regex", "metadata": {"linked_statute_text": "XV of the Supreme Court Rules", "statute": "XV of the Supreme Court Rules"}}, {"text": "Article 22(1)", "label": "PROVISION", "start_char": 85649, "end_char": 85662, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Parliament of Ind~", "label": "ORG", "start_char": 85883, "end_char": 85901, "source": "ner", "metadata": {"in_sentence": "unless the context othcrwis~ requires, \"the State\" includes ti.c Go•cmmcnt and Parliament of Ind~ and the Government and the l...cgia.- lature of each of the Slate' and all local or other authorities within the territory of India or under the control of the Government of lodia.\""}}, {"text": "Art. 22(1)", "label": "PROVISION", "start_char": 87404, "end_char": 87414, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Arts. 14, 15(l)(b)", "label": "PROVISION", "start_char": 88333, "end_char": 88351, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 90689, "end_char": 90699, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 91919, "end_char": 91926, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 92190, "end_char": 92197, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "[1962) 3 S.C.R. 842", "label": "CASE_CITATION", "start_char": 93164, "end_char": 93183, "source": "regex", "metadata": {}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 94827, "end_char": 94834, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Parliament", "label": "ORG", "start_char": 95390, "end_char": 95400, "source": "ner", "metadata": {"in_sentence": "(3) Without prejudice to the powers conferred on the Supreme Court by clauses (I) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 95800, "end_char": 95808, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "article 32", "label": "PROVISION", "start_char": 95943, "end_char": 95953, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 96996, "end_char": 97006, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 97010, "end_char": 97020, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 97308, "end_char": 97315, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Arts. 32 and 226", "label": "PROVISION", "start_char": 98287, "end_char": 98303, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Since the Judicature Act", "label": "STATUTE", "start_char": 99152, "end_char": 99176, "source": "regex", "metadata": {}}, {"text": "Earl Russe/1(1", "label": "OTHER_PERSON", "start_char": 100372, "end_char": 100386, "source": "ner", "metadata": {"in_sentence": "The Earl of Russell was tried for bigamy by the King in Parliament before 160 peers and all the Judges of the High Court after removal thereof the case by certiorari (see The Trial of Earl Russe/1(1)."}}, {"text": "Westminster", "label": "GPE", "start_char": 102385, "end_char": 102396, "source": "ner", "metadata": {"in_sentence": "This court was spoken of by the Sovereign \"as our Justices at Westminster\"."}}, {"text": "Arts. 32 and 226", "label": "PROVISION", "start_char": 104363, "end_char": 104379, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 106018, "end_char": 106026, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32(3)", "label": "PROVISION", "start_char": 106119, "end_char": 106129, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of 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("}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 107368, "end_char": 107375, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 107485, "end_char": 107492, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 107586, "end_char": 107593, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 107661, "end_char": 107669, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32(1)", "label": "PROVISION", "start_char": 107688, "end_char": 107698, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 107767, "end_char": 107775, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 107802, "end_char": 107810, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "article 32", "label": "PROVISION", "start_char": 107857, "end_char": 107867, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 108572, "end_char": 108580, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 109142, "end_char": 109150, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 109392, "end_char": 109400, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Arts. 32 and 226", "label": "PROVISION", "start_char": 109420, "end_char": 109436, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 109830, "end_char": 109837, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Arts. 14, 15, 19, 20, 21 and 22", "label": "PROVISION", "start_char": 111608, "end_char": 111639, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 111982, "end_char": 111989, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art.\n\n226", "label": "PROVISION", "start_char": 112416, "end_char": 112425, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 113405, "end_char": 113412, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 113481, "end_char": 113488, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 113812, "end_char": 113819, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art.\n\n32", "label": "PROVISION", "start_char": 114064, "end_char": 114072, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Supreme Court of America", "label": "COURT", "start_char": 114078, "end_char": 114102, "source": "ner", "metadata": {"in_sentence": "The Supreme Court of America has not hesitlited to interfere with breaches of Civil Rights Acts on the part of the court~ in the States by treating the action of State courts and of judicial officers in their official capacities as State action. ("}}, {"text": "Art. 32(2)", "label": "PROVISION", "start_char": 116426, "end_char": 116436, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 116981, "end_char": 116988, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 117869, "end_char": 117876, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 118390, "end_char": 118397, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 118519, "end_char": 118526, "source": "regex", "metadata": {"linked_statute_text": "the 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"start_char": 122141, "end_char": 122148, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Tarkundc•", "label": "JUDGE", "start_char": 122225, "end_char": 122234, "source": "ner", "metadata": {"in_sentence": "It was then urged by counsel for the petitioners that Tarkundc• J., had no jurisdiction to make the order prohibiting publication 0f the evidence of the witness Bhfilchand Goda, and on that account\n\n[1966) 3 S.C.R.\n\nthe order was liable to be challenged in a petition under Art.", "canonical_name": "YI Tarkunde"}}, {"text": "Bhfilchand Goda", "label": "WITNESS", "start_char": 122332, "end_char": 122347, "source": "ner", "metadata": {"in_sentence": "It was then urged by counsel for the petitioners that Tarkundc• J., had no jurisdiction to make the order prohibiting publication 0f the evidence of the witness Bhfilchand Goda, and on that account\n\n[1966) 3 S.C.R.\n\nthe order was liable to be 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"end_char": 128798, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Arts. 20, 21 & 22(1)", "label": "PROVISION", "start_char": 128845, "end_char": 128865, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Arts. 20, 21 & 22", "label": "PROVISION", "start_char": 129161, "end_char": 129178, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 129227, "end_char": 129234, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 129628, "end_char": 129635, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of 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"label": "STATUTE", "start_char": 132695, "end_char": 132719, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 151", "label": "PROVISION", "start_char": 133220, "end_char": 133226, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Marriage Act, 1955", "statute": "the Hindu Marriage Act, 1955"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 133230, "end_char": 133257, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 133500, "end_char": 133507, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Marriage Act, 1955", "statute": "the Hindu Marriage Act, 1955"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 133821, "end_char": 133828, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art.\n\n32", "label": "PROVISION", "start_char": 134090, "end_char": 134098, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 134347, "end_char": 134354, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 134692, "end_char": 134699, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 135153, "end_char": 135160, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Plato", "label": "OTHER_PERSON", "start_char": 135817, "end_char": 135822, "source": "ner", "metadata": {"in_sentence": "Long ago, Plato observed in his Laws that the citizen should attend and listen attentively to the trials."}}, {"text": "Hegel", "label": "OTHER_PERSON", "start_char": 135913, "end_char": 135918, "source": "ner", "metadata": {"in_sentence": "Hegel in his Philosophy of Right maintained that judicial proceedings must be public, since the aim of the Court is justice, which is a universal belonging to all."}}]}
{"document_id": "1966_3_811_814_EN", "year": 1966, "text": "THE STATE OF MYSORE\n\nSHANTA VEERAPPA CHANNA MALLAPPA\n\nBOMMANAHALLI & ORS.\n\nMarch 4, 1966\n\n(A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]\n\nMysoro Sales Tax Act (25 of 1957), ss. 13(3) and 29(l)(d)-Asst3Ut filing appeal against order of as•essment-No interim stay of proceedings for recovery of tax-Prosecution for non-payment of tax-Ma/ntainabi- C lity.\n\nThe respondent was assessed to sales tax and w .. served with a notice requiring him to pay the amount within 21 days. He preferred an appeal against the order of assessment but did not pay the tax, nor did he obtain an order of stay of proceedings from the appellate authority.\n\nWhile the appeal w.. pending, a complaint was filed against him under s. 29(1)(d) of the Mysore Sales Tax Act, 1957, because the demand D was not complied with, but the trial court and the High Court acquitted him.\n\nIn appeal to this Court by the State,\n\nHELD : The acquittal of the respondent was unwarranted as his action in not paying the tax within the time allowed, was deliberate and therefore wilful, and such failure to pay is rendered an offence under s. 29(l)(d). [814 D, El\n\nThe liability to pay tax is created by the order of assessment. Where the tax so assessed is not paid despite service of notice of demand, the tax may be recovered under s. 13 ( 3) (a~ .. an arrear of land reyenue or. under s. 13 ( 3 )(b) on an application to a magistrate as if it were a fine impooed on the assessee.\n\nUnder the proviso to s. 13(3), the assessee has been afforded interim protection from action under s. 13(3)(a) or (b), provided he obtains from the appropriate appellate or revisional authority mentioned in the proviso, an order of stay of proceedings.\n\nMerely because an appeal h.. been preferred, the liability of the assessee to pay the tax cannot be deemed to be suspended under s. 20(5). Thi• provision requires that if the order of such appropriate authority lays down any condition, the proviso requires that the assessee must comply with it before he can obtain interim relief. Apart from these two methods of obtaining interim relief, the proviso to s. 13(3) cannot be an answer to a prosecution under s. 29(l)(d). [813 E-G]\n\nCRIMINAL\n\nAPPELLATE\n\nJURISDICTION: Criminal Appeals Nos. 150-152 of 1965.\n\nAppeals by special leave from the judgment and order dated March 17, 1965 of the Mysore High Court in Criminal Appeals Nos. 93 to 95 of 1965.\n\nB. R. L. Iyengar and B. R. G. K. Achar, for the appellant.\n\nK. R. Choudhury, for the respondents. 811\n\n812 SUPll.EME COUll.T REPORTS\n\n[1966] 3 S.C.R.\n\nThe J udgmcnt of the Court was delivered by\n\nModbolkar, J. This judgment will also govern Criminal Appeals Nos. 151and152of1965. The respondent was at the relevant time a dealer at Bijapur in groundnuts, cotton seed and other commodities and was registered as a dealer under the Mysore Sales Tax Act, 1957.\n\nFor the period between November 12, 1958 and October 31, 1959 he was assessed to sales tax amounting to Rs. 9,864·31 ps. by the Commercial Tax Officer, Bijapur in his order dated December 4, 1963. On January 3, 1964 the Commercial Tax Officer served on him a notice of payment requiring him to pay the tax assessed on him within 21 days.\n\nHe was similarly assessed to pay tax for two subsequent periods by two separate orders passed by the Commercial Tax Officer. Two separate notices of demand were served on him requiring him to pay the tax assessed within 21 days. ll is common ground that the respondent did not comply with any of the three notices. Three separate complaints were, therefore, preferred against him by the Commercial Tax Officer before the Judicial Magistrate, First Class, second court, Bijapur for offences punishable under s. 29(1)(d) of the Act. The respondent had preferred appeals against each of the three orders of assessment under sub-s. (I) of s. 20 of the Act. He did not, however, pay the tax assessed against him or any portion thereof as contemplated in the second proviso of sub-s. (1) of s. 20 nor did he seek or obtain from the appellate authority any order under the proviso to sub-s. (5) of s. 20. The learned Magistrate held that since the respondent had preferred appeals against the orders of assessment and those appeals were still pending when the complaints were made before him the respondent was not liable for offences under s. 29 (I) (d). On this ground the learned Magistrate acquitted the respondent in all the three cases. Appeals preferred by the State of Mysore against the orders of acquittal passed in favour of the respondent were rejected by the High Court on the ground that as the State could avail itself of other remedies under the Act for enforcing the payment of tax levied on the respondent it did not think it fit to exercise its discretion under s. 421 (I) of the Code of Criminal Procedure and entertain the appeals.\n\nMr. Chaudhuri refers to the proviso to sub-s. (3) of s. 13 and contends that unless the requirements of the proviso are satisfied he is not liable to be proceeded against under s. 29 (1) (d). In order to appreciate his argument it is desirable to reproduce the provision relied upon by him.\n\nSub-section (3) of s. 13 reads as follows :\n\n\"Any tax assessed, or any other amount due under this Act from a dealer, may without prejudice to any other H mode of collection, be recovered-\n\n(a) as if it were an arrear of land revenue, or\n\nE •\n\n' ;'\n\nSTATE v. BOMMANAHALLI (Mudho/kar, J.) 813\n\n(b) on application to any Magistrate, by such Magistrate as if it were a fine imposed by him:\n\nProvided that no proceeding for such recovery shall be taken or continued as long as he has, in regard to the payment of such tax or other amount, as the case may be, complied with an order by any of the authorities to whom the dealer has appealed, or applied for revision, under sections 20, 21, 22, 23 or 24.\"\n\nThe matter dealt with by s. 13 is \"payment and recovery of tax\".\n\nThe substantive part of the provision renders an assessee in arrears of tax liable to be proceeded against under either cl. (a) or cl. (b) of the provision. Mr. Chaudhury, however, contends that by virtue of the proviso an assessee will not be liable to be proceeded against unless it is shown that he has failed to comply with an order made by the appropriate authority under one of the sections referred to in the proviso. He points out that though he has preferred appeals under s. 20 of the Act no order has been made by the appellate authority in any of the appeals dealing with the question of payment or otherwise of the tax and that, therefore, there has been no failure on the part of the respondent to comply with an order made by the appropriate authority. Mr. Chaudhury in effect wants us to construe the proviso as if it contemplated the creation of liability to pay the tax by an order of the appropriate authority under one of the sections specified in the proviso. There is no warrant for such a construction. The liability to pay tax is created by the order of assessment. Where tax so assessed is not paid despite service of notice of demand the substantive portion of sub-s. (3) of s. 13 renders the assessee liable to be proceeded against under\n\ncl. (a) or cl. (b) of that provision. The assessee who has moved the appropriate authority under one of the provisions referred to in the proviso has, however, been afforded interim protection from action under cl. (a) or cl. (b) provided that he approaches the appropriate authority and obtains from that authority an order of stay of proceedings under cl. (a) or cl. (b). That, however, is not enough.\n\nIf the order of the appropriate authority lays down any condition the proviso requires that the assessee must comply with those conditions before he can obtain interim relief under the proviso.\n\nApart from that, we fail to see how the proviso to sub-s. (3) of s. 13 can at all be an answer to a prosecution under s. 29 (!) (d). What is rendered an offence under s. 29 (I) (d) is the failure of the assessee to pay the tax within the time allowed. But where, as here, the assessee has not paid the tax within the time allowed by a notice of demand he immediately renders himself liable to be proceeded against under s. 29 (I) (d).\n\nMr. Chaudhury then contended that in view of the fact that an appeal has been preferred the liability of the assessee to pay\n\nSUPREME COUJ.T R.EPOl.TS\n\n\nthe tax must be deemed to have been suspended during the pendency of the appeal. This argument ignores the specific provisions of sub-s. (5) of s. 20 and the proviso thereto. They read thus :\n\n\"Notwithstanding that an appeal has been preferred under sub-section (I), the tax shall be paid in accordance with the assessment made in the case :\n\nProvided that the appellate authority may, in its discretion give such directions as it thinks tit in regard to the payment of the tax before the disposal of the appeal, if the appellant furnishes sufficient security to its satisfaction in such form and in such manner as may be prescribed.\"\n\nThe provision we have just quoted is a complete answer to Mr. Chaudhuri's contention. Mr. Chaudhury then contended that there was no wilful default on the part of the respondent.\n\nIt is difficult to appreciate what he means by saying that there was no wilful default. The respondent knew that he was required to pay the tax within certain time and also knew that he had not complied with the notice of demand.\n\nHis action in not paying the tax was quite clearly deliberate and, therefore, wilful. There is no substance in this contention.\n\nWe are, therefore clear that the acquittal of the respondent\n\nfor offences in the case was unwarranted. We would, therefore, have, after setting aside his acquittal in each of the three cases, E convicted and sentenced him under s. 29 (1) (d) of the Act but for the fact that when special leave was granted an undertaking was given by the State that irrespective of the result of the appeal the respondent would not be prosecuted. Probably what was meant was that the State would not press for conviction and sentence of the respondent. Therefore, though we allow the appeals F and set aside the acquittal of the respondent in the three cases we leave the matter just there.\n\nAppeals allowed.", "total_entities": 52, "entities": [{"text": "THE STATE OF MYSORE", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF MYSORE", "offset_not_found": false}}, {"text": "SHANTA VEERAPPA CHANNA MALLAPPA\n\nBOMMANAHALLI & ORS", "label": "RESPONDENT", "start_char": 21, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "SHANTA VEERAPPA CHANNA MALLAPPA BOMMANAHALLI & ORS", "offset_not_found": false}}, {"text": "March 4, 1966", "label": "DATE", "start_char": 75, "end_char": 88, "source": "ner", "metadata": {"in_sentence": "March 4, 1966\n\n(A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]"}}, {"text": "A. K. SARKAR, J.", "label": "JUDGE", "start_char": 91, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 108, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 125, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "Mysoro Sales Tax Act", "label": "STATUTE", "start_char": 147, "end_char": 167, "source": "regex", "metadata": {}}, {"text": "ss. 13(3) and 29(l)(d)", "label": "PROVISION", "start_char": 182, "end_char": 204, "source": "regex", "metadata": {"linked_statute_text": "Mysoro Sales Tax Act", "statute": "Mysoro Sales Tax Act"}}, {"text": "s. 29(1)(d)", "label": "PROVISION", "start_char": 713, "end_char": 724, "source": "regex", "metadata": {"linked_statute_text": "Mysoro Sales Tax Act", "statute": "Mysoro Sales Tax Act"}}, {"text": "Mysore Sales Tax Act, 1957", "label": "STATUTE", "start_char": 732, "end_char": 758, "source": "regex", "metadata": {}}, {"text": "s. 29(l)(d)", "label": "PROVISION", "start_char": 1104, "end_char": 1115, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Sales Tax Act, 1957", "statute": "the Mysore Sales Tax Act, 1957"}}, {"text": "s. 13", "label": "PROVISION", "start_char": 1299, "end_char": 1304, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Sales Tax Act, 1957", "statute": "the Mysore Sales Tax Act, 1957"}}, {"text": "s. 13", "label": "PROVISION", "start_char": 1353, "end_char": 1358, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Sales Tax Act, 1957", "statute": "the Mysore Sales Tax Act, 1957"}}, {"text": "s. 13(3)", "label": "PROVISION", "start_char": 1470, "end_char": 1478, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Sales Tax Act, 1957", "statute": "the Mysore Sales Tax Act, 1957"}}, {"text": "s. 13(3)(a)", "label": "PROVISION", "start_char": 1548, "end_char": 1559, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Sales Tax Act, 1957", "statute": "the Mysore Sales Tax Act, 1957"}}, {"text": "s. 20(5)", "label": "PROVISION", "start_char": 1832, "end_char": 1840, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13(3)", "label": "PROVISION", "start_char": 2108, "end_char": 2116, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29(l)(d)", "label": "PROVISION", "start_char": 2160, "end_char": 2171, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 2340, "end_char": 2357, "source": "ner", "metadata": {"in_sentence": "Appeals by special leave from the judgment and order dated March 17, 1965 of the Mysore High Court in Criminal Appeals Nos."}}, {"text": "B. R. L. Iyengar", "label": "LAWYER", "start_char": 2402, "end_char": 2418, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar and B. R. G. K. Achar, for the appellant."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 2423, "end_char": 2440, "source": "ner", "metadata": {"in_sentence": "B. R. L. Iyengar and B. R. G. K. Achar, for the appellant."}}, {"text": "K. R. Choudhury", "label": "LAWYER", "start_char": 2462, "end_char": 2477, "source": "ner", "metadata": {"in_sentence": "K. R. Choudhury, for the respondents."}}, {"text": "Modbolkar", "label": "JUDGE", "start_char": 2598, "end_char": 2607, "source": "ner", "metadata": {"in_sentence": "T REPORTS\n\n[1966] 3 S.C.R.\n\nThe J udgmcnt of the Court was delivered by\n\nModbolkar, J. This judgment will also govern Criminal Appeals Nos."}}, {"text": "Mysore Sales Tax Act, 1957", "label": "STATUTE", "start_char": 2832, "end_char": 2858, "source": "regex", "metadata": {}}, {"text": "November 12, 1958", "label": "DATE", "start_char": 2884, "end_char": 2901, "source": "ner", "metadata": {"in_sentence": "For the period between November 12, 1958 and October 31, 1959 he was assessed to sales tax amounting to Rs."}}, {"text": "Bijapur", "label": "GPE", "start_char": 3013, "end_char": 3020, "source": "ner", "metadata": {"in_sentence": "by the Commercial Tax Officer, Bijapur in his order dated December 4, 1963."}}, {"text": "December 4, 1963", "label": "DATE", "start_char": 3040, "end_char": 3056, "source": "ner", "metadata": {"in_sentence": "by the Commercial Tax Officer, Bijapur in his order dated December 4, 1963."}}, {"text": "January 3, 1964", "label": "DATE", "start_char": 3061, "end_char": 3076, "source": "ner", "metadata": {"in_sentence": "On January 3, 1964 the Commercial Tax Officer served on him a notice of payment requiring him to pay the tax assessed on him within 21 days."}}, {"text": "Judicial Magistrate, First Class, second court, Bijapur", "label": "COURT", "start_char": 3621, "end_char": 3676, "source": "ner", "metadata": {"in_sentence": "Three separate complaints were, therefore, preferred against him by the Commercial Tax Officer before the Judicial Magistrate, First Class, second court, Bijapur for offences punishable under s. 29(1)(d) of the Act."}}, {"text": "s. 29(1)(d)", "label": "PROVISION", "start_char": 3707, "end_char": 3718, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Sales Tax Act, 1957", "statute": "the Mysore Sales Tax Act, 1957"}}, {"text": "s. 20", "label": "PROVISION", "start_char": 3835, "end_char": 3840, "source": "regex", "metadata": {"linked_statute_text": "the Mysore Sales Tax Act, 1957", "statute": "the Mysore Sales Tax Act, 1957"}}, {"text": "s. 20", "label": "PROVISION", "start_char": 3985, "end_char": 3990, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 20", "label": "PROVISION", "start_char": 4091, "end_char": 4096, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 4334, "end_char": 4339, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Mysore", "label": "ORG", "start_char": 4461, "end_char": 4476, "source": "ner", "metadata": {"in_sentence": "Appeals preferred by the State of Mysore against the orders of acquittal passed in favour of the respondent were rejected by the High Court on the ground that as the State could avail itself of other remedies under the Act for enforcing the payment of tax levied on the respondent it did not think it fit to exercise its discretion under s. 421 (I) of the Code of Criminal Procedure and entertain the appeals."}}, {"text": "s. 421", "label": "PROVISION", "start_char": 4774, "end_char": 4780, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 4792, "end_char": 4818, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Chaudhuri", "label": "OTHER_PERSON", "start_char": 4851, "end_char": 4860, "source": "ner", "metadata": {"in_sentence": "Mr. Chaudhuri refers to the proviso to sub-s. (3) of s. 13 and contends that unless the requirements of the proviso are satisfied he is not liable to be proceeded against under s. 29 (1) (d).", "canonical_name": "Chaudhuri"}}, {"text": "s. 13", "label": "PROVISION", "start_char": 4900, "end_char": 4905, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 5024, "end_char": 5029, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 5158, "end_char": 5163, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 20, 21, 22, 23", "label": "PROVISION", "start_char": 5807, "end_char": 5830, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 5865, "end_char": 5870, "source": "regex", "metadata": {"statute": null}}, {"text": "Chaudhury", "label": "OTHER_PERSON", "start_char": 6067, "end_char": 6076, "source": "ner", "metadata": {"in_sentence": "Mr. Chaudhury, however, contends that by virtue of the proviso an assessee will not be liable to be proceeded against unless it is shown that he has failed to comply with an order made by the appropriate authority under one of the sections referred to in the proviso.", "canonical_name": "Chaudhuri"}}, {"text": "s. 20", "label": "PROVISION", "start_char": 6388, "end_char": 6393, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 7107, "end_char": 7112, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 7837, "end_char": 7842, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 7890, "end_char": 7895, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 7939, "end_char": 7944, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 8192, "end_char": 8197, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 20", "label": "PROVISION", "start_char": 8505, "end_char": 8510, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 9766, "end_char": 9771, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_815_820_EN", "year": 1966, "text": "HIMATRAO v.\n\nJAIKISHANDAS AND ORS.\n\nMarch 4, 1966\n\n[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]\n\nThe Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahai.f, Alienated Lands) Act, 1950 (! of 1951), ss. 3 and 4-Vesting of proprietary interest in land in State-Right to claim partition of 'home-farm' land whether affected by such vesting.\n\nThe appellant's suit for partition of his share of 'homt>-farm' land in the Berar area of Madhya Pradesh was partly decreed by the trial court.\n\nBoth sides filed appeals and the first appellate court also decid*1 in favour of the appellant. The High Court however dismissed the suit as infructuous on the ground that by virtue of the Madhya Pradesh Abolition of Proprietary Rights (Estate, Mahals Alienated Lands) Act, 1950 the land stood vo; ted in the State. The appellant came to this Court.\n\nHELD : (i) It is no doubt true that so far as the proprietary intercot in. the village is concerned the whole of it has now been acquired by the State and vests in it.\n\nThe acquisition of such interest by the State would not, however, put an end to the various rights of ex-proprietors in their capacity aa owners of property.\n\nThus every coharer could despite the acquisition of his proprietary right obtain a declaration from a civil court as to the fact and extent of bis share in the pre-existing proprietary rights of that v:Jlage so that he could lay claim to a proportionate extent of 'home-farm' land in the village. [819 A-CJ\n\n(ii) A distinction has to be drawn between a suit brought by a proprietor in his character as proprietor for possession of property which the Jaw then in force authorised him to claim by a suit for the benefit of the entire body of proprietors and a suit based upon trespass upon his individual rights obtained by him irrespective of his character as such proprietor.\n\nIf this distinction had been borne in mind by the High Court it would not have dismissed the present suit as wholly infructuous for a number of relief' had been sought by the plaintiff-appellant with respect to property wh'ch not vested in the State. [819 GJ\n\n(iii) Tho village in question being still undivided every bit of land which was in the cultivating posse3sion of any of the co-shares in the village would be deemed to be in the poosession of the entire body of CCH1harers.\n\nTho same would apply to land in the possesoion of lessees or ordinary tenants. The right to enforce claims to a partition of this land was in no way affected by any of the provisions of the Act. [319 Dl\n\nChhot~ Khan v. Mohammad Obedullakhan, I.LR. [1953) Nag. 702 (F.B.), distinguished.\n\nRahmatullah Khan v. Mahabirsingh, I.L.R. [1955] Nag. 983 refer- H red to.\n\nCIVIL APPELLATE JuR1smcnoN : Civil Appeals Nos. 1034 and 1035 of 1963. 815\n\nAppeals from the judgment and decrees dated July 17, 1956 of the former Nagpur High Court in Appeals Nos. 574 and 575 and 608 of 1946 respectively.\n\nS. T. Desai, G. l. Sanghi and A. C. Ratnaparkhi, for the appellants (in C. A. No. 1034 of 1963).\n\nW. S. Barlingay, G. l. Sanghi and A. G. Ratnaparkhi, for the appellant (in C. A. No. 1035 of 1963).\n\nS. G. Patwardhan and M. R. K. Pillai, for respondent No. 4.\n\nThe Judgment of the Court was delivered by\n\nMudbolkar, J, Both these appeals arise out of a suit instituted by Himatrao, appellant in C. A. 1034 of 1963 for declaration that he is owner of 1 anna 5 pies share in the village Mozara, District Yeotmal and for partition and separate possession of the property that would fall to the aoresaid share. Certain other reliefs were also prayed for by him; but it is not necessary to refer to them for the purpose of deciding these appeals. To this suit he joined other co-sharers in the village as well as alienees from some of the co-sharers.\n\nThis suit was instituted by him on December 7, I 939 and was partially decreed on July 31, I 944 by the court of Sub-Judge, second class, Darwha. He preferred an appeal from the decree of the trial court. So also Pusaram one of the defendants to the partition suit preferred an appeal from the decree of the trial court and some other defendants preferred a cross-objection against that decree. The appeal of Himatrao was allowed while that of Pusaram was dismissed. The cross-objections of Jugalkishore and Jaykumar succeeded while that of Laxman Vinayak who is the appellant's brother in C. A. 1035 of I 963 was dismissed.\n\nPusaram preferred two appeals before the High Court from the judgment of the lower appellate court, Second Appeal No. 574 of 1946 and Second Appeal No. 57& of 1946.\n\nLaxman Vinayak preferred Second Appeal No. 608 of 1946.\n\nAll these appeals were heard together and disposed of by a common judgment. It was urged before the High Court on behalf of Pusaram that the suit for partition had become infructuous because of the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (No. I of 1951) and, therefore, as held in Chhotc Khan v. Mohammad Obed11//akilan( 1) the suit should be dismissed. This contention was upheld by the High Court and an order to this effect was made in all the appeals.\n\nThe Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereafter referred to as the Act for brevity) was enacted, as the long title thereof shows, to provide for the acquisition of the rights of proprietors in estates,\n\n(I) I.LR. lt953J Nag. 702 (F.U).\n\nHIMATRAO v. JAIKISHANDAS (Mudholkat, J.)\n\nBIT\n\nA mahals, alienated villages and alienated lands in Madhya Pradesh and to make provision for other matters connected therewith.\n\nIt was not intended to take away each and every kind of right possessed by a person in immovable property situate in such villages.\n\nThe vesting section is s. 3. Sub-section (I) thereof makes it clear that the rights which were acquired by the State were proprietary B rights save as otherwise provided in the Act, but not any other kind of right possessed by an owner of property. The consequences of vesting are dealt with by s. 4 of the Act, sub-s. (2) of which reads thus :\n\n\"Notwithstanding anything contained in sub-section (1), the proprietor shall continue to retain the possession C of his homestead, home-farm land, and in the Central Provinces also of land brought under cultivation by him after the agricultural year 1948-49 but before the date of vesting.\"\n\nIt is not disputed on behalf of the respondents and indeed it cannot be disputed, that home-farm land is not affected by the provisions of the Act. In other words, such land was not acquired by the State but was left with the owners thereof. The definition of home-farm is given in s. 2 (g) of the Act. Clauses (i) and (ii} of this provision give the definition of home-farm in relation to the Central Provinces. But with that definition we are not concerned.\n\nThe village Mozara was not situate in that part of the former Madhya Pradesh which was within the area of the still earlier Central Provinces of the British times. It is situate in the part of the former,;' Madhya Pradesh which was and still is known as Berar. Clause (3) of that definition gives the definition of home-farm in relation to Berar. According to this definition all land included in holdings which is \"(i) under the personal cultivation of the superior holder including land allowed to lie fallow in accordance with the usual agricultural practice; (ii) held by a lessee from the superior holder; and (iii) held by a tenant from the superior holder other than a specified tenant.\" The village Mozara was one of the villages in which Izara rights were granted under the Waste Land Rules of\n\n1865. The grantees of the rights were known as Izardars or proprietors of the village and they were called superior holders. There were various classes of tenants in the Izara villages such as antealienation tenants, permanent tenants, tenants of antiquity and ordinary tenants. In addition, there were also lessees from the superior holders. The aforesaid definition excludes from the home-farm land all land held by ante-alienation tenants, permanent tenants and tenants of antiquity. The result of this is that land under the personal cultivation of the superior holder as weir as land held by a lessee or ordinary tenant from him became his. home-farm land. Quite often, as is the case here, the proprietary right in the village was held by a large number of persons and those\n\npersons were thus co-sharers in the village.\n\nSome of these villages were partitioned with the result that lands including lands in possession of tenants were separately allocated to the share of each cosharer. In many cases, however, there was no partition, hut various co-sharers by some sort of agreement used to retain possession of some lands in the villages, some of which they used to cultivate personally and grant leases over some of them or create tenancy rights over some of them. An arrangement of the latter kind was only tentative and subjc'Ct to the result of a perfect partition in strict accordance with the share of each co-sharer in the village.\n\nIt is the plaintiff's allegation that his case fell in the second category.\n\nAccording to him, out of the original 16 annas interest in the Izara village an interest of 6 annas had already hecn separated from an interest of 10 annas and that in this 10 annas share he had an interest of I anna 5 pies.\n\nNo doubt, his father was actually in possession of 7 specified fields which had hecn sold in execution of a decree and later came in the possession of Pusaram. But this did not represent the full I anna 5 pies share to which his father was entitled or to which he is entitled. He admits that these 7 fields were sold in execution of the decree obtained by one Girdharilal against Basantrao, his father, in civil suit No. 43 of 1925. According to him, however, it is only these fields that were sold in execution and not his share in the lzara itself.\n\nHowever, the sale certificates and receipts for possession mention not only these 7 fields hut also Basantrao's one anna 3 pies' share in the village.\n\nHis contention which was accepted by the trial court as well as by the , lower arpellate court was that the mention of I anna 3 pies' share in the warrant of attachment and receipt was the result of a fraud practised on the court by interested persons.\n\nAccording to the trial court Himatrao's share is I anna 3 pies while according to the lower appellate court it was I anna 5 pies.\n\nIn the light of these findings a decree for partition and separate possession of I anna 5 pies' share in the village, that is, of land falling to the share of I anna 5 pies was granted by the lower appellate court to Himatrao. It may be mentioned that Himatrao had said in his plaint that the 7 fields which were sold in execution and which later came into possession of Pusaram should be allocated to Hamatrao's I anna 5 pies' share. The main contention of Pusaram in the second appeal before the High Court appears to have been that as a result of the previous execution sale he had become the owner not only of 7 fields but of Himatrao's share in the village.\n\nApart from the fact that the finding on each of the points of the two lower courts being one of fact was binding on the High Court, the High Court has erred in the view which it took of the provisions of the Act and of the decision in Chhote Khan's case(').\n\nWhat we have, therefore, to consider is whether the High Court was right in throwing out the suit as infructuous. It is no doubt\n\n(I) I.L.R. (1953] Nag. 7v2 (F.B.)\n\n...\n\nD -\n\nHIMATRAO v. JAl, KISHANDAS i(Mudholkar,. J.) 819\n\ntrue that so far as the proprietary interest in the village is concerned the whole of it has now been acquired by the State and vests in it. But under the provisions of the Act compensation is payable to the ex-proprietors by virtue of the provisions of the Act.\n\nThis proprietary interest is analogous to what is known as the interest of the intermediary in similar Acts enacted in many other States of India. The acquisition of such an interest by the State would not put an end to the various rights of ex-proprietors in their capacity as owners of property. Thus, every co-sharer could, despite the acquisition of his proprietary right obtain a declaration from a civil court as to the fact and extent of his share in the pre-existing proprietary rights of that village so that he could lay claim to a proportionate amount of compensation and to a proportionate extent of home-farm land in that village. The High Court seems to think that inasmuch as Himatrao was admittedly not in cultivating possession of any part of the land in the village he could not lay any claim to a partition of the home-farm land. We have already given the definition of home-farm. It would he clear from it that the village being still undivided every bit of land which was in cultivating possession of any of the co-sharers in the village would be deemed to be in possession of the entire body of co-sharers.\n\nThe same would apply to land in possession of lessees or ordinary tenants. The right to enforce a claim to a partition of this land is in no way affected by any of the provisions of the Act or by the interpretation placed on the provisions of the Act in Chhote Khan's case(1). Suffice it to say that Chhote Khan's case(I) was concerned with the right of an ex-lumbardar to continue after the coming into force of the Act, a suit for possession of abadi land which had vested in the State. In the present suit a number of reliefs which Himatrao claimed are with respect to property which has not vested m the State. A somewhat similar argument was sought to be advanced before the Nagpur High Court on the basis of the decision in Chhote Khan's case( I) in Rahmatullah Khan v. Mahabirsingh(Z). While rejecting the argument the majority of the Judges who decided the case pointed out that a distinction has to be made between a suit brought by a proprietor in his character as proprietor for possession of property which the law then in force authorised him to claim by a suit for the benefit of the entire body of proprietors and a suit based upon trespass upon his individual rights obtained by him irrespective of his character as such proprietor. If this distinction had been borne in mind by the High Court it would not have dismissed the suit as wholly infructuous.\n\nAn argument was sought to be advanced on behalf of the respondents by Mr. Patwardhan that the suit was also barred by the principle of res judicata. However, learned counsel realising\n\n(1) l.L.R. (1953] Nag. 702 (F.B).\n\n(2) I.LR. [1953] Nag. 983.\n\nthat there was no substance in that contention gave it up.\n\nWe, therefore, need say nothing more on the point.\n\nFor the reasons which we have given, it is clear that the matter must go back to the High Court for deciding the appeals before it on their merits.\n\nDr. Barlingay, who appears for Laxman Vinayak, has said that he adopts the arguments addressed before us on behalf of Himatrao by Mr. S. T. Desai and has nothing to add. He said that he would be content with the order that the appeals be heard and decided on merits by the High Court.\n\nIn the result, therefore, we allow the appeals, set aside the decrees passed by the High Court and remit the entire suit to the High Court for decision on merits. The respondents should pay the costs in this Court and the High Court and the costs of the trial court and to be incurred hereinafter will be as in a partition suit.\n\nAppeals allowed.", "total_entities": 38, "entities": [{"text": "HIMATRAO", "label": "PETITIONER", "start_char": 0, "end_char": 8, "source": "metadata", "metadata": {"canonical_name": "HIMATRAO", "offset_not_found": false}}, {"text": "JAIKISHANDAS AND ORS", "label": "RESPONDENT", "start_char": 13, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "JAIKISHANDAS AND ORS", "offset_not_found": false}}, {"text": "March 4, 1966", "label": "DATE", "start_char": 36, "end_char": 49, "source": "ner", "metadata": {"in_sentence": "March 4, 1966\n\n[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]"}}, {"text": "A. K. SARKAR, J.", "label": "JUDGE", "start_char": 52, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 69, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ.", "label": "JUDGE", "start_char": 86, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 218, "end_char": 229, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 449, "end_char": 463, "source": "ner", "metadata": {"in_sentence": "The appellant's suit for partition of his share of 'homt>-farm' land in the Berar area of Madhya Pradesh was partly decreed by the trial court."}}, {"text": "S. T. Desai", "label": "JUDGE", "start_char": 2932, "end_char": 2943, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, G. l. Sanghi and A. C. Ratnaparkhi, for the appellants (in C. A. No.", "canonical_name": "S. T. Desai"}}, {"text": "G. l. Sanghi", "label": "LAWYER", "start_char": 2945, "end_char": 2957, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, G. l. Sanghi and A. C. Ratnaparkhi, for the appellants (in C. A. No."}}, {"text": "A. C. Ratnaparkhi", "label": "LAWYER", "start_char": 2962, "end_char": 2979, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, G. l. Sanghi and A. C. Ratnaparkhi, for the appellants (in C. A. No.", "canonical_name": "A. C. Ratnaparkhi"}}, {"text": "W. S. Barlingay", "label": "LAWYER", "start_char": 3030, "end_char": 3045, "source": "ner", "metadata": {"in_sentence": "W. S. Barlingay, G. l. Sanghi and A. G. Ratnaparkhi, for the appellant (in C. A. No."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 3064, "end_char": 3081, "source": "ner", "metadata": {"in_sentence": "W. S. Barlingay, G. l. Sanghi and A. G. Ratnaparkhi, for the appellant (in C. A. No.", "canonical_name": "A. C. Ratnaparkhi"}}, {"text": "S. G. Patwardhan", "label": "LAWYER", "start_char": 3131, "end_char": 3147, "source": "ner", "metadata": {"in_sentence": "S. G. Patwardhan and M. R. K. Pillai, for respondent No."}}, {"text": "M. R. K. Pillai", "label": "LAWYER", "start_char": 3152, "end_char": 3167, "source": "ner", "metadata": {"in_sentence": "S. G. Patwardhan and M. R. K. Pillai, for respondent No."}}, {"text": "Mudbolkar", "label": "JUDGE", "start_char": 3236, "end_char": 3245, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMudbolkar, J, Both these appeals arise out of a suit instituted by Himatrao, appellant in C. A. 1034 of 1963 for declaration that he is owner of 1 anna 5 pies share in the village Mozara, District Yeotmal and for partition and separate possession of the property that would fall to the aoresaid share."}}, {"text": "Himatrao", "label": "JUDGE", "start_char": 3303, "end_char": 3311, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nMudbolkar, J, Both these appeals arise out of a suit instituted by Himatrao, appellant in C. A. 1034 of 1963 for declaration that he is owner of 1 anna 5 pies share in the village Mozara, District Yeotmal and for partition and separate possession of the property that would fall to the aoresaid share.", "canonical_name": "HIMATRAO"}}, {"text": "December 7, I 939", "label": "DATE", "start_char": 3813, "end_char": 3830, "source": "ner", "metadata": {"in_sentence": "This suit was instituted by him on December 7, I 939 and was partially decreed on July 31, I 944 by the court of Sub-Judge, second class, Darwha."}}, {"text": "July 31, I 944", "label": "DATE", "start_char": 3860, "end_char": 3874, "source": "ner", "metadata": {"in_sentence": "This suit was instituted by him on December 7, I 939 and was partially decreed on July 31, I 944 by the court of Sub-Judge, second class, Darwha."}}, {"text": "Pusaram", "label": "OTHER_PERSON", "start_char": 3991, "end_char": 3998, "source": "ner", "metadata": {"in_sentence": "So also Pusaram one of the defendants to the partition suit preferred an appeal from the decree of the trial court and some other defendants preferred a cross-objection against that decree."}}, {"text": "Himatrao", "label": "PETITIONER", "start_char": 4187, "end_char": 4195, "source": "ner", "metadata": {"in_sentence": "The appeal of Himatrao was allowed while that of Pusaram was dismissed.", "canonical_name": "HIMATRAO"}}, {"text": "Jugalkishore", "label": "OTHER_PERSON", "start_char": 4269, "end_char": 4281, "source": "ner", "metadata": {"in_sentence": "The cross-objections of Jugalkishore and Jaykumar succeeded while that of Laxman Vinayak who is the appellant's brother in C. A. 1035 of I 963 was dismissed."}}, {"text": "Jaykumar", "label": "OTHER_PERSON", "start_char": 4286, "end_char": 4294, "source": "ner", "metadata": {"in_sentence": "The cross-objections of Jugalkishore and Jaykumar succeeded while that of Laxman Vinayak who is the appellant's brother in C. A. 1035 of I 963 was dismissed."}}, {"text": "Laxman Vinayak", "label": "OTHER_PERSON", "start_char": 4319, "end_char": 4333, "source": "ner", "metadata": {"in_sentence": "The cross-objections of Jugalkishore and Jaykumar succeeded while that of Laxman Vinayak who is the appellant's brother in C. A. 1035 of I 963 was dismissed."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 5782, "end_char": 5786, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 6054, "end_char": 6058, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 6679, "end_char": 6683, "source": "regex", "metadata": {"statute": null}}, {"text": "Mozara", "label": "GPE", "start_char": 6870, "end_char": 6876, "source": "ner", "metadata": {"in_sentence": "The village Mozara was not situate in that part of the former Madhya Pradesh which was within the area of the still earlier Central Provinces of the British times."}}, {"text": "Izara", "label": "GPE", "start_char": 7832, "end_char": 7837, "source": "ner", "metadata": {"in_sentence": "There were various classes of tenants in the Izara villages such as antealienation tenants, permanent tenants, tenants of antiquity and ordinary tenants."}}, {"text": "Girdharilal", "label": "OTHER_PERSON", "start_char": 9773, "end_char": 9784, "source": "ner", "metadata": {"in_sentence": "He admits that these 7 fields were sold in execution of the decree obtained by one Girdharilal against Basantrao, his father, in civil suit No."}}, {"text": "Basantrao", "label": "OTHER_PERSON", "start_char": 9793, "end_char": 9802, "source": "ner", "metadata": {"in_sentence": "He admits that these 7 fields were sold in execution of the decree obtained by one Girdharilal against Basantrao, his father, in civil suit No."}}, {"text": "Hamatrao", "label": "OTHER_PERSON", "start_char": 10904, "end_char": 10912, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that Himatrao had said in his plaint that the 7 fields which were sold in execution and which later came into possession of Pusaram should be allocated to Hamatrao's I anna 5 pies' share."}}, {"text": "Chhote Khan", "label": "OTHER_PERSON", "start_char": 11401, "end_char": 11412, "source": "ner", "metadata": {"in_sentence": "Apart from the fact that the finding on each of the points of the two lower courts being one of fact was binding on the High Court, the High Court has erred in the view which it took of the provisions of the Act and of the decision in Chhote Khan's case(')."}}, {"text": "India", "label": "GPE", "start_char": 12054, "end_char": 12059, "source": "ner", "metadata": {"in_sentence": "This proprietary interest is analogous to what is known as the interest of the intermediary in similar Acts enacted in many other States of India."}}, {"text": "Nagpur High Court", "label": "COURT", "start_char": 13724, "end_char": 13741, "source": "ner", "metadata": {"in_sentence": "A somewhat similar argument was sought to be advanced before the Nagpur High Court on the basis of the decision in Chhote Khan's case( I) in Rahmatullah Khan v. Mahabirsingh(Z)."}}, {"text": "Patwardhan", "label": "OTHER_PERSON", "start_char": 14489, "end_char": 14499, "source": "ner", "metadata": {"in_sentence": "An argument was sought to be advanced on behalf of the respondents by Mr. Patwardhan that the suit was also barred by the principle of res judicata."}}, {"text": "Barlingay", "label": "OTHER_PERSON", "start_char": 14928, "end_char": 14937, "source": "ner", "metadata": {"in_sentence": "Dr. Barlingay, who appears for Laxman Vinayak, has said that he adopts the arguments addressed before us on behalf of Himatrao by Mr. S. T. Desai and has nothing to add."}}, {"text": "S. T. Desai", "label": "JUDGE", "start_char": 15058, "end_char": 15069, "source": "ner", "metadata": {"in_sentence": "Dr. Barlingay, who appears for Laxman Vinayak, has said that he adopts the arguments addressed before us on behalf of Himatrao by Mr. S. T. Desai and has nothing to add.", "canonical_name": "S. T. Desai"}}]}
{"document_id": "1966_3_821_829_EN", "year": 1966, "text": "STATE OF UITAR PRADESH\n\nAKBAR AU KHAN\n\nMarch 9, 1966\n\n[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO, M. HIDAYA\n\nTULLAH, J. C. SHAH AND S. M. SIKRI, JJ.j\n\nConstitution of India, Art. 311-0rder terminating probation--comblned with order stopping promotion on the same findin11s end without • complying with Art. 311-stoppage of promotion later wnhdrawn-whether order terminating probation vitliated or stands by itself.\n\nC U.P. Subordinate Revenue Execmive Service (Tehsildars) Rul-. 1944,\n\nr. 12 and r. 14-scope of.\n\nPrabation-whether confirmatiori follows in the absence of express order.\n\nIn April 1951, the respondent, who was a Naib Tehsildar in the U.P.\n\nCivil Service, was selected for permanent promotion to the post of Tehsildar and in accordance with Rule 12 of the Subordinate Revenue Executive Service (Tehsildars) Rules, 1944, wu placed on probation for a period of two years.\n\nOn April 29, 1953, it was reported that ho had drawn excess travelling allowance in respect of certain journeys.\n\nAfter an enquiry into the matter and after an opportunity had been given to the respondent to show cause why his probation should not be terminated, by an order of tho Governor dated August 13, 1957, the respondent was informed that his probation was term:nated and he was Deverted to the post of Naib Tehsildar. The order also stated that he was not to be considered for promotion for a period of seven years from the date of reversion.\n\nUpon the respondent submitting a Memorial to the Governor against this order, the Governor passed another order on December 1, 1958, cancelling that part of the earliei< order which related to the stoppage of promotion of the respondent and confirming the termination of probation on the ground that the respondent \"had during the probation not made sufficient use of his opportunities and had failed to givesatisfaction\".\n\nThe reopondent then filed a petition under Article 226 challenging the orders of August 13, 1957, and December 1, 1958. This petition wa< allowed by the High Court on the ground that under Rule 12 of the 1944 Rules, the power to revert could be exercised either during or at the end of the period of probation and if no order was passed extending the period of probation, the respondent was deemed to have been confirmed in the new post; accordingly, the order terminating the probation was erroneous and the respondent's reversion being in the nature of a penalty imposed without conforming to the requirements of Article 311 of the Constitution, was liable to be quashed.\n\nIn appeal under the Letters Patent a Division Bench the High Court held that the respondent had not ceased to be a probationer on the expiry\n\nof tho two-year probation period and the order of the learned Single Judge could not therefore bo sustained.\n\nIt held, however, that the two parts of the order dated August 13, 1957, being based on the same finding could not be dissociated and since the Governor had pa .. ed an order terminating the probation and had simultaneously therewith Imposed\n\n822 SUPllBME\n\nCOURT\n\nREPORTS\n\n[1966] 3 S.CR.\n\nupon the respondent puo.ishmel\\t without complying with the requiremcnls of Article 311, the entire order had to be set aside. The High Court also held that the Governor by his later order sought to convert the earlier order of pllllishment into an order under Rule 14 (which provided for the terminatioo of probation in certain cirewnstances including cases where the probationer had failed to give satisfaction). But the Governor had no power to convert an order of punishment retrospectively nor could he appropriate to himself the funct:on of interpreting the oarlier order and Iayinii down that the order was made under Rule 14 and l\\Ol an order of punishment.\n\nOn appeal t<> this Court.\n\nHELD : The High Court was in error in holding that the order mado by the Governor determining the probation of the respondent infringed the protection of Article 311.\n\nThe Governor initially passed an order determining tbe probation and also paMCd an o'der stopping promotion. The Iauer part of the order which the Governor was incompetent to pass under Rule 14 did give rise to a justifiable grievance which the respondent could set up, but after that order was cancelled, tho respondent bad no cause for grievance.\n\n[828 F-GJ\n\nThe order terminating probatioo was made under Rule 14 and continued to retain that character. The vice in the serond part of the order did not either before or after it was cancelled affect the validity of tho order terminating the respondent's probation. [828 HJ\n\nBy terminating his probation no penally was imposed on the respondent and it could not therefore be said that by passing the order of\n\nDecember I, 1958. 1he Governor was seeking to convert the earlier order of punishment into an order under Rule 14 retrospectively. [828 GJ\n\nThe High Court had rightly held that the respondent did not cease to be a probationer on the expiry of two years. The scheme of the 1944 Rules was that confirmation m the post which a probationer is holding ooes not result merely from the expiry of the period of probation and so long as the order of conftnnation is not made the bolder of the\n\npost remains a probat'oner. [825 HJ ' Unitho order of appointment slates that at the end of the period of probation the appointee will stand confirmed in the absence of an order to the contrary or unless there is a service rule in that behalf, an\n\nexprei!\\ order of confirmation is necessary to give the probationer a suh<. tantive right to the post held by him. [826 BJ\n\nChief Co11serva1or of Foresu, UP. Nainital v. D. A. Lyall : C.A. 259 of 1963 dated February 24, 1965; Sukhbans Sin11h v. The Stt>Je of Punjab: G A.1.R. 1!>62 S.C. 1711; and The Accountant General, Madhya Proderh, Gwalior v. Ben! Prasad Bhatnagar : C.A. 548 of 1962 dated January 23, 1964; n ferred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 19 of 1965.\n\nAppeal by special leave from the judgment and order dated -~ January 23. 1962 of the Allahabad High Court in Special Appeal H No. 532 of 1960.\n\n0. P. Rana, for the appellant.\n\nU.P. STATE v. !. KBAR ALI (Shah, J.)\n\na substantive vacancy shall be placed on probation. The period of probation shall be two years.\"\n\nBy r. 13 it is provided that every listed candidate whether appointed in a substantive vacancy or not, shall be required to pass such tests in departmental subjects and the languages of the Province and to undergo such training as the Governor may from time to time prescribe. Rule 14 provided :\n\n\"If it appears at any time during or at the end of the period of probation that a person appointed on probation has not made sufficient use of his opportunities or has failed to pass the departmental examination completely or if he has otherwise failed to give satisfaction, he may be reverted to his substantive appointment : Provided that the Board may extend the period of probation to three years. An extension beyond this period shall require the sanction of the Governor. Every extension whether granted by the Board or the Governor shall specify the exact date up to which it is granted.\"\n\nRule 15 provided for confirmat, on of a probationer at the end of the period of probation if he id passed the departmental examination for tahsildars completely, and the Commissioner reported that he was fit for confirmation and that his integrity was unquestionable.\n\nThe respondent was posted as a Tahsildar, and placed on probation for two years. The initial period of probation was liable to be extended by the Board of Revenue or by the Governor. There is no rule that on the expiry of the period of probation the probationer shall be deemed to have been confirmed in the post which he is holding as a probationer. If a probationer was found not to have made sufficient use of his opportunities or had failed to pass the departmental examination \"completely\" or if he had otherwise failed to give satisfaction he may be reverted to his substantive appointment : again confirmation in the appointment at the end of the period of probation could only be made if the probationer had passed the departmental examination for tahsildars \"completely\" and the Commissioner reported that he was fit for confirmation and that his integrity was unquestionable. It is common ground in this case that the respondent had not passed the departmental examination before 1955. He had therefore not qualified himself for confirmation.\n\nThe scheme of the rules is clear : confirmation in the post which a probationer is holding does not result merely from the H expiry of the period of probation, and so long as the order of confirmation is not made, the holder of the post remains a probationer. It has been held by this Court that when a first appointment or promotion is made on probation for a specified !1!12Sup. Cl/66-7\n\nSUPREME\n\nCOURT\n\nREPORTS\n\n(1966) 3 S.C.lt.\n\nperiod and the employee is allowed to continue in the post, after the expiry of the said period without any specific order of confirmation he continues as a probationer only and acquires no iubstantive right to hold the post. If the order of appointment itself states that at the end of the period of probation the appointee will stand confirmed in the absence of any order to the contrary, the appointee will acquire a substantive right to the post even without an order of confirmation. In all other cases, in the absence of such an order or in the absence of such a service rule, an express order of confirmation is necessary to give him such a right.\n\nWhere after the period of probation an appointee is allowed to continue in the post without an order of confirmation, the only possible view to take is that by implication the period of probation has been extended, and it is not a correct proposition to state that an appointee should be deemed to be confirmed from the mere fact that he is allowed to continue after the end of the period of probation. See Chief Consenator of Forests, U.P. Nainital v. D. A.\n\nLyall(•) : Sukhbans Sini:h v. The State of PW1jab{2) and The Accountant General, Madhya Pradesh, Gwalior v. Beni Prasad Bhatnai:ar(').\n\nThe ground on which Tandon, J., decided the petition cannot therefore be sustained.\n\nBut the High Court held that the respondent had been subjected to reduction in rank in violation or the guarantee under Art. 311 of the Constitution. In the view or the High Court the order dated August 13, 1957, determining the probation and withholding promotion for a period of seven years from the date of reversion being a composite punitive order, could not be made by the Governor without giving to the respondent reasonable opportunity of showing cause against the action proposed to be taken in regard to him. That view is strongly pressed upon us for acceptance. The proceeding against the respondent, it is true, commenced on a report which charged him with having submitted travelling allowance bills in respect of journeys not performed by him. But it is clear from the letter dated September 27, 1956, that the inquiry made against the respondent was only for the purpose of affording him an opportunity to show cause why hls \"probation should not be terminated forthwith.\" The Governor of U.P. after considering the explanation submitted by the respondent, by order dated August 13, 1957, terminated the probation of the respondent, and further directed that he should not be <:ensidered for promotion for a period of seven years from the date of reversion. The second part of the order, it appears, was not given effect to, for even before December I, 1958 the respondent was posted as an officiating Tahsildar. By the second order dated December I, 1958, the Governor of U .P. cancelled the stoppage\n\n(I) C.A. 259 of 1963 dcQdcd OD Feb. 24, 1965.\n\n(2) A.l.R. 1962 S, C, 1711\n\n(3) C.A. S48 of t962 decided OD Jan. 23, 1964.\n\n• c\n\nor promotion and only confirmed the order in so far as it related to termination of probation. We are unable to agree with the High Court that the first limb of the order dated August 13, 1957, was punitive in character. The inquiry against the respondent was held for the purpose of determining his probation. Under r. 14 of the Subordinate Revenue Executive Service (Tahsildar) Rules, 1944, the Governor is authorised to revert a person appointed on probation, if it appears at any time that the person has not made sufficient use of his opportunities or has failed to pass the departmental examination completely or has otherwise failed to give satisfaction. An officer who has submitted travelling allowance bills in respect of journeys not undertaken by him may not unreasonably be regarded as one who \"has failed to give satisfaction\".\n\nIt cannot be assumed merely because an inquiry is directed to ascertain whether a person appointed on probation has failed to give satisfaction, that it is intended to hold an inquiry with a view to impose punishment against that person. Inquiry against the respondent which was commenced for ascertaining whether he should be continued on probation or whether his probation should be terminated, did not change its character merely because the Governor made an order which he could not make in that inquiry. There is nothing to show that the scope of the inquiry was at any time extended. The order withholding promotion was one which the Governor was in the inquiry incompetent to pass, and apparently the order was not given effect to, and when presumably his attention was drawn to the irregularity that part of the order was cancelled.\n\nThe High Court assumed that in the circumstances of the case under r. 14 no inquiry could be made against the respondent before termination of probation and that the Governor held an inquiry under r. 55(3) of the Civil Services (Classification, Control and Appeal) Rules, and in making that inquiry the State authorities did not act in conformity with the rules and the constitutional safeguards. But the assumption made by the High Court cannot be accepted.\n\nIn our judgment the inquiry was commenced under r. 14 of the Subordinate Revenue Executive Service (Tahsildars) Rules, 1944, and never lost that character. Reversion to a substantive appointment can be directed under r. 14 in the conditions mentioned therein, and for ascertaining the existence or otherwise of those conditions, the appointing authority may hold some inquiry. Mere holding of an inquiry is therefore not a ground for holding that the order which followed as a result of the inquiry was not made under r. 14.\n\nThe High Court also held that inquiries under r. 14 of the Subordinate Revenue Executive Service (Tahsildars) Rules, 1944, and r. 55(3) of the Civil Services (Classification, Control and Appeal) Rules which apply to the Provincial Services apply to different\n\nSUPREME COU&T REPORTS\n\n(1966] 3 S.C.R.\n\nsituations. Rule 55(3) at the material time dealt with probationers and provided :\n\n\"This rule shall also not apply where it is proposed to terminate the employment of a probationer whether during or at the end of the period of probation, or to dismiss, remove or reduce in rank a temporary government servant, for any specific fault or on account of his unsuitability for the service. In such cases, the probationer or temporary government servant concerned shall be apprised of the grounds of such proposal, given an opportunity to show cause against the action to be taken against him, and his explanation in this behalf, if any, shall be duly considered before orders are passed by the competent authority.\"\n\nClauses (I) & (2) deal with the dismissal, removal or reduction in rank of a member of a Service, but those clauses are expressly made inapplicable by the first sentence of cl. (3) of r. 55 to termination of employment of a probationer and by the second part the procedure to be followed in the inquiry for determination of probation is prescribed. Rule 14 of the Subordinate Revenue Executive Service (Tahsildars) Rules, 1944, confers power upon the appointing authority to terminate probation in certain eventualities.\n\nUnder that rule an inquiry may be made, if the appointing authority thinks it fit to do so and to such an inquiry r. 55(3) which primarily deals with the procedure to be followed before an order is passed determining probation may apply.\n\nWe arc therefore of the view that the High Court was in error in holding that the order made by the Governor determining the probation of the respondent infringed the protection of Art. 311.\n\nThe Governor initially passed an order determining the probation and also passed an order stopping promotion. The latter part of the order which the Governor was incompetent to pass under r. 14 did give rise to a justifiable grievance which the respondent could set up, but after that order was cancelled the respondent had no cause for grievance. It cannot be said that by terminating the probation any penalty was imposed : and if that be the correct view the opinion expressed by the High Court that by passing the order dated Decemlier !, 1958 the Governor was seeking to convert the earlier order of punishment into an order under r. 14 of the Subordinate Revenue Executive Service (Tahsi!dars) Rules, 1944 retrospectively, cannot be accepted. The order terminating probation was made under r. 14 and continued to retain that character. The vice in the second part of the order did not either before or after it was cancelled affect the validity of the order terminating the respondent's probation.\n\n A We think that the respondent was ill-advised in prosecuting the petition even after he had been appointed an officiating Tahsildar.\n\nThe appeal is allowed and the order passed by the High Court set aside. The petition filed by the respondent must be dismissed.\n\nIn the circumstances of the case, we direct that there will be no B order as to costs throughout.\n\nAppeal allowed .", "total_entities": 26, "entities": [{"text": "STATE OF UITAR PRADESH", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTTAR PRADESH", "offset_not_found": false}}, {"text": "March 9, 1966", "label": "DATE", "start_char": 39, "end_char": 52, "source": "ner", "metadata": {"in_sentence": "STATE OF UITAR PRADESH\n\nAKBAR AU KHAN\n\nMarch 9, 1966\n\n[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO, M. HIDAYA\n\nTULLAH, J. C. SHAH AND S. M. SIKRI, JJ.j\n\nConstitution of India, Art."}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 55, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 84, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 121, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. SIKRI, JJ", "label": "JUDGE", "start_char": 133, "end_char": 148, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 152, "end_char": 173, "source": "regex", "metadata": {}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 175, "end_char": 183, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 303, "end_char": 311, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "April 29, 1953", "label": "DATE", "start_char": 890, "end_char": 904, "source": "ner", "metadata": {"in_sentence": "On April 29, 1953, it was reported that ho had drawn excess travelling allowance in respect of certain journeys."}}, {"text": "August 13, 1957", "label": "DATE", "start_char": 1184, "end_char": 1199, "source": "ner", "metadata": {"in_sentence": "After an enquiry into the matter and after an opportunity had been given to the respondent to show cause why his probation should not be terminated, by an order of tho Governor dated August 13, 1957, the respondent was informed that his probation was term:nated and he was Deverted to the post of Naib Tehsildar."}}, {"text": "December 1, 1958", "label": "DATE", "start_char": 1555, "end_char": 1571, "source": "ner", "metadata": {"in_sentence": "Upon the respondent submitting a Memorial to the Governor against this order, the Governor passed another order on December 1, 1958, cancelling that part of the earliei< order which related to the stoppage of promotion of the respondent and confirming the termination of probation on the ground that the respondent \"had during the probation not made sufficient use of his opportunities and had failed to givesatisfaction\"."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 1907, "end_char": 1918, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 2479, "end_char": 2490, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 3156, "end_char": 3167, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 3928, "end_char": 3939, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "order terminating probatioo was made under Rule", "label": "STATUTE", "start_char": 4307, "end_char": 4354, "source": "regex", "metadata": {}}, {"text": "P. Rana", "label": "OTHER_PERSON", "start_char": 6072, "end_char": 6079, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the appellant."}}, {"text": "Shah", "label": "JUDGE", "start_char": 6128, "end_char": 6132, "source": "ner", "metadata": {"in_sentence": "KBAR ALI (Shah, J.)\n\na substantive vacancy shall be placed on probation."}}, {"text": "Tandon", "label": "JUDGE", "start_char": 10159, "end_char": 10165, "source": "ner", "metadata": {"in_sentence": "The ground on which Tandon, J., decided the petition cannot therefore be sustained."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 10344, "end_char": 10352, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "27, 1956", "label": "DATE", "start_char": 11030, "end_char": 11038, "source": "ner", "metadata": {"in_sentence": "But it is clear from the letter dated September 27, 1956, that the inquiry made against the respondent was only for the purpose of affording him an opportunity to show cause why hls \"probation should not be terminated forthwith.\""}}, {"text": "U.P.", "label": "GPE", "start_char": 11228, "end_char": 11232, "source": "ner", "metadata": {"in_sentence": "The Governor of U.P. after considering the explanation submitted by the respondent, by order dated August 13, 1957, terminated the probation of the respondent, and further directed that he should not be <:ensidered for promotion for a period of seven years from the date of reversion."}}, {"text": "S48", "label": "PROVISION", "start_char": 11826, "end_char": 11829, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 16496, "end_char": 16504, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Decemlier !, 1958", "label": "DATE", "start_char": 17037, "end_char": 17054, "source": "ner", "metadata": {"in_sentence": "It cannot be said that by terminating the probation any penalty was imposed : and if that be the correct view the opinion expressed by the High Court that by passing the order dated Decemlier !,"}}]}
{"document_id": "1966_3_830_855_EN", "year": 1966, "text": "STATE OF NAGALAND\n\nRA TAN SINGH, ETC.\n\nMarch 9, 1966\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, HIDAYATULLAH,\n\nJ. C. SHAH AND S. M. SIKRI, JJ.j\n\nScheduled Districts Act, 1874-Rule• thereunder-If valid and in fore~! Act bad for excessive delegation-If Rulu violate Arts. 14 and 21 of Co11stltution-Applicabi/ity of Criminal Procedure Code to backward tracu--Constitution of India, 1950.\n\nThe respondents were sought to be tried for oft'ooces under the Indian Ponal Code, before the Additional Dqluty Commissioner, Kohnna, \"hen objection was taken that the trial should be before the Court of Sessiom\n\n; ifter commitment, as tho offences were triable exclusively by the Court of Session under the Code of Criminal Procedure. The Additional Deputy\n\nCommissioner overruled tho objection on the ground that there were no Courts of s-ion in the Naga Hills District and tho Criminal Procedure Code was also not in force.\n\nHe ruled that committal proceedings and the trial before a session coun was therefore not possible and the pr<><\"- dure laid down in the Rules for the Administration of Justice and Police\n\nii\\ the Naga Hills District, 1937, would be followed.\n\nThereupon the respondents filed writ petitions to quash the proceedings commenced under the Rulo:; of 1937. Tho High Court issued a writ directing the State not to proceed with the trial under the Rules of 1937.\n\nThe area, where the trial was taking place was one of the backward tracts and it was for a century and more specially administered.\n\nTho successive Criminal Procedure Codos, which ordinarily would have governed the trial of offence•, were always withdrawn from this area and special rul\"\" for administration of criminal justice were pomulgated instead.\n\nDy tho Government of India Act, 1870, the Governor-General and other authorities were conferred the power to make or propose laws, and the Governor-General was allowed to legislate separarelv for the backward tracts.\n\nM difficulties arose in determining whµt laws were in force and io which area of backward tracts, the Scheduled Districts Act, 1874 was passed.\n\nThe p06ition at the inauguation of the Govornmcot of India. 1935 was that the Go\\'emor-General in Council legislated for these backward areas and the Governor-General could direct that any Act of the Indian Legislatures should not apply at all or should apply with such exceptions and modifications as he might think tit. The 1935 Act provided for the ascertainment of the backward tracJs and for =king of laws in those areas and in 1936 an Order in Council was made speci fying the backward tracts. The Scheduled District Act was repealed by the Adaptation of Laws Order, 1937. The Constitution of India, 1950,\n\nby Art. 244 made a special provision for the scheduled and tribal areu. 1ltt> State of Nagaland was formed by the State of Nagaland Act, 1962\n\ncomprising of N\"? Hills-Tuensang Area and consisting of three districta. The admin!Slration of tho State of Nagaland was to be in accordance with the provisions of the State of Nagaland Act, which amon~ other thingt provided for the continuance of existing law• and their adaptation.\n\nThe Government and administration of these areas was often not carried on directly under laws made by the Governor-General either by himself\n\nNAGALAND v. RATAN SINGH 831\n\nor in his Council but through rules which were framed from tµne to t!m• by other agencies.\n\nIn 193 7, the Governor of AMam prescribed reed .\n\nRules under the powers vested in him by s. 6 of the S9heduled D1•ti:icts Act. These Rules of 1937 began by stating that they cancelled \"all pre>1ous orders on the subject\" but were on the pattern of earlier rules which laid down that in criminal trials the spirit of the Criminal Procedure Code was to be followed because the Code itself was not in force.\n\nIn appeal to this Court, the main question that arose were whether the Rules of 1937 were validly enacted and they continued to be in force, _whether the Scheduled Districts Act was bad because of excessive delegation, ao.d whether the Rules of 1937 were rendered void by reasou of Arts. 14 and 21 of the Constitution.\n\nHELD: The Rules of 1937 were validly enacted and continued to be in force and governed the trial of the respondents. The Oxle of Criminal Procedure admittedly did not apply to that area and the Additional Deputy Commissioner was therefore right in holding the trial under the Rule•\n\nof 1937. [854 E-F]\n\nThe Rules of 1937 did survive the repeal of the Scheduled Districts Act, 1874 by virtue of the saving ci_ause in the Adaptation of Laws Order which repealed the Act.\n\nThe sav.ng clause preserved all n.ouficat10111 and the Rules of 1937 were enacted by a notification. After the passing \"of the Government of India Act, 1935, the Rules of 1937 wore succe.- sively preserved by ss. 292 anc! 293 of the Government of India Act, 1935, s. 18 of the Indian Independence Act, 1947 and Art. 372 of the Constitution. [847 G-848 A]\n\nThere WM no excessive delegation under the Scheduled Districts Act.\n\nThe Legislature clearly indicated the policy and tbo manner of off.., tuating tbat policy. The Act conferred on the local Governments power to appoint officers for administration of civil and criminal justice within the Scheduled Districts and empowered the local Government to regulate the procedure of the oll'icers so appointed and to confe.r on tllem authority and jun.- diction powers and duties incidental to the administration of civil and criminal justice.\n\nThese pro, isions afforded sufficient guide to the local Government that the administration of Civil and Criminal justice was to be done under their control by the officers apoointed by them anc! the procedure which they were to follow had to be laid doWt!. Besides, there was sufficient guidance in the three sub-sections of s. 6 read as a whole with the preamble, and the Chief Commi.,; ioner's Rules made in 1872 and republished 'n 1874 by Governor-General in Council wore alo<> available as a further guide as the last were continued in force by s. 7. [849 G-850 DJ\n\nBy the Scheduled Districts Act the Governor-General in Council conferred on the local Government an equal or concurrent power an& thi• was clearly indicated by the word \"as tbe case may be\" in s. 7 of the Act. Those word< did not. show that the local Government could only amend its own Rule'l.\n\nThey showed that whoever made the rules the authority of the Act made them binding. [851 A-BJ\n\nArticle 21 of the Constitution did not render the Rules of 1937 ineffective. In the backward tracts it was considered necessary that discretion should have greater play than technical rules and the provision that the spirit of the Code should apply was a law conceived in the best iRtercsto of the people.\n\nThe di!cretion of the Presiding Officer was net subjected ro rigid control because of tbe unsatisfactory state of defences which would be offered an<) which might fail if they did not comply with\n\n832 SUPREME COUll.T REPORTS\n\n[1966] 3 S.C.R.\n\nsome technical rule.\n\nThe removal of technicalities, led to the advancoment of the cause of justice in these backward tracts.\n\nOn the ocher hand the imposition of the Code of Criminal Procedure would have retarded justice as iiideed the Governors-General, the Governors and the\n\nheads of local Governmoot bad always thought. (852 B-0]\n\nIt was not discriminatory to administer different laws in different areas.\n\nThese backward tracts were not found suitable for the applic.1tion of the Criminal Procedure Code in all its ,; gour and technicality and to say that they were to be governed, not by the technical rules of the Code, but by the substance of such ru1 .. was not to discriminate this area against the rest of India. (852 E-G]\n\nThe law had not attempted to control discretion by Rules in Ibis area but had rightly left discretion free so that the rule might not hamper the administration of justice.\n\nThere was no vested right in procedure; therefore, the respondents could not claim to be tried undtr the CrimiMI Procedure Code tn this area where the Code was excluded. [853 Gl\n\nNo discrimination can be spelled out from the differences in the rule• aPJ>licable to different areas in the backward tracts.\n\nThe object was to bnng these territories under the Code of Criminal Procedure applicable in the rest of India, by stages.\n\nArticle 371 of the Constitution it>elf coatcmplatcs a diffecent treatment of these tracts and the differences are justified by the vast differences between the needs of social conditions .In Nagaland and the \\1lrious stages of development of different parts of this area. [854 DJ\n\n[Uniform set of Rules for the whole area suggested.]\n\nCRIMINAL APPFLLATE JURISDICTIO~ : Criminal Appeals Nos.\n\nE 198 of 1965 and 29-32 of 1966.\n\nAppeals from the judgment and order dated August 26. 1965 of the Assam and Nagaland High Court in Civil Rules Nos. 200, 235, 234, 233 and 232 of 1965.\n\nC. K. Daphtary, Attorney-General, D. M. Sen, Advocate F General for the State of Noga/and, P. K. Goswami, Anil Barthukar, B. Dutta and Naunit Lal, for the appellant (in all the appeals.)\n\nA. K. Sen, S. S. Ray, I!. K. Puri and H. L. Arora, for the respondents (in all the appeals).\n\nNimz De, Additional Solicitor-General and Naunit Lal, for the intervener.\n\nThe Judgment of the Court was delivered by\n\nHidayatullah, J. These are appeals by the State of Nagaland against the judgment and order of the High Court of Assam and Nagaland, August 26, 1965, by which the High Court, allowing certain writ petitions filed by the respondents, issued a writ of mandamus directing the Adliitional Deputy Commissioner, Kohima and the State of Nagaland, not to proceed with the trial of the\n\nNAGALANI> V, RATAN SINGH (Hidayatullah, J.) 833\n\nA respondents. The High Court has certified the case as fit for appeal\n\n•to this court. The facts are these :\n\nThe respondents are members of the 7th Battalion of the Central Reserve Police (shortly called in this judgment the C.R.P.) who, under the command of the 8th Mountain Division Infantry Brigade, were engaged in operations in the State of Nagaland.\n\nOn receipt of information that on or about August 3, 1964, seven hostile Nagas, 'Who were captured and kept prisoners with the C.R.P. at Pfutser Camp, were murdered and their dead bodies secretly disposed of, the police, after investigating the report, .arrested 44 persons and charged them with offences under ss.\n\n302/109/34 and 201, Indian Penal Code. Some other members of the C.R.P. were charged at the same time under s. 436, Indian Penal Code for setting fire to some houses in certain villages. The trial was about to take place before the Additional Deputy Commissioner, Kohima, when an objection was taken that the trial should be before the Court of Session after commitment, as the offences were triable by the Court of Session exclusively, under the Code of Criminal Procedure. The Additional Deputy Commissioner overruled the objection pointing out that there were no Courts of Session in the Naga Hills District and the Criminal Procedure Code was also not in force.\n\nHe ruled that committal proceedings and trial before a Sessions Court were, therefore, not possible and the procedure laid down in the Rules for the Administration of Justice and Police in the Naga Hills District, 1937, would be followed.\n\nFor brevity we shall refer to these Rules as the Rules of 1937.\n\nThe respondents filed five petitions under Art. 226 of the Constitution for writs or orders to quash the proceedings under the Rules of 1937 and other reliefs. By the order impugned here a Divisional Bench consisting of C.\n\nSanjeeva Rao Nayudu and S. K. Dutta JJ., quashed the proceedings and issued a writ of mandamus directing the Additional Deputy Commissioner and the State of Nagaland not to proceed under the Rules of 1937 with the trial of the accused before him. The learned Judges gave separate, but concurring judgments. Mr. Justice Dutta in a brief judgment reached the conclusion that the Rules of 1937 made by the Governor of Assam and the earlier rules made by the Lt. Go- vernor on November 29, 1906 were not validly made. In his opinion there already existed certain other Rules made by the Governor-General in Council in 1874 and the local Government was not competent to make rules while those Rules existed. In regard to the Rules of 1874 the learned Judge held that they \"had H : become infructuous\" for want of suitable adaptations after the political changes since 1874. He did not consider any other ground , of alleged invalidity of these Rules and expressly refrained from giving any opinion. Mr. Justice C.\n\nSanjeeva Rao Nayudu\n\n834 SUPllEMll COUllT llEPOllTS\n\n[1966) 3 S.C.R.\n\ndealt with the problem exhaustively and viewed it from many angles.\n\nHe gave several reasons for holding that the trial could not take place under the Rules of 1937. We have not found it easy to summarize his reasons effectively but, briefly stated, they were : that the Rules of 1937 were void ab initio because the Scheduled Districts Act, 1874 under which the Governor purported to make them did not give him any authority to make them; that if the Act gave such authority, it was itself ultra 1ires the statutes of British Parliament and involved excessive delegation; that on the repeal of Scheduled Districts Act in 1937, all ruled made under it lapsed; that the Rules of 1937 were vague, uncertain and elusive and were not law as contemplated by Art. 21 ; that they were discriminatory for various reasons ; that they could not apply to Indian citizens in Nagaland and that, in any event, the Additional District Magistrate was not acting in accordance with those Rules such as they were. We need not at this stage attempt to enlarge upon the various themes because the arguments on behalf of the respondents have presented a selection of the reasons which were given by Mr. Justice Nayudu and they will appear in appropriate places in our Judgment.\n\nWe are concerned with a new State formed as late as 1962 but the territory of this State has had a very long and chequered history.\n\nThe area. where the trial is taking place is one of the backward tracts and it has, for a century and more, been specially administered. Jn that area the ordinary laws (particularly the two main Codes) in force in the rest of India, have not been applied. The successive Criminal Procedure Codes, which ordinarily would have governed the trial of offences, were always withdrawn from this area and special rules for administration of criminal justice were promulgated instead. Whether such rules (particularly the Rules of\n\n1937) were validly enacted, whether they continue to be in force and whether they are rendered void by reason of Arts. 14 and 21 of the Constitution arc the main problems requiring consideration. Before we consider these questions the history of law-making in these areas may first be told generally and then in relation to the Rules for the Administration of Justice promulgated in 1937 and at other times.\n\nEven prior to the taking over of the Government of the territories formerly administered by the East India Company the making of laws wa-; entrusted to the Governor-General in Council under 3 & 4 William IV, Ch. 85 and 16 & 17 Viet. Ch. 95. They allowed laws to be made directly for the areas which were under the Government of East Jndia Company. After the Indian Councils Act of 1861 (24 & 25 Viet. Ch. 67) was passed the legality of the laws which had been made by the Governor-General either in Council or on his own was in question. Section 22 of the lndian Councils Act made new provision by_which the Governor-General in Council\n\nNAGALAND v. RATAN SINGH (Hidayatullah, J.) 835\n\nwas authorised to make laws and regulations for India and to repeal, amend or alter any law or regiilation whatever in force in India. The Act also made provision validating all earlier laws by enacting that no rule, law or regulation made before the passing of that Act by the Governor-General or certain named executive authorities would be deemed invalid by reason of not having been made in conformity with the provisions of the Charter Acts. The power to make laws was taken away from the executive authorities.\n\nThe power, which was taken away from the Governor and other authorities to make or propose laws was again conferred on the Governor-General and other authorities by the Government of India Act, 1870 (33 & 34 Viet. Ch. 3) and the Governor-General was allowed to legislate separately for the backward tracts. For this purpose the Governor in Council, the Lt. Governor or the Chief Commissioner, as the case may be, could submit to the Governor-General draft regulations for his consideration and after their approval by the Governor-General in his Council such regulations became law for these backward areas.\n\nThis state of affairs existed right down to the Government of India Act, 1915. As difficulties arose in determining what laws were in force and in which areas of the backward tracts, the Scheduled Districts Act, 1874 was passed. This Act wi!l be considered closely later and for the present we content ourselves with a few points of importance to the present narrative. The preamble of the Act clearly set out that the object, inter a/ia, was to ascertain the enactments in force in any territory and the boundaries of such territory. The Act, therefore, specified \"scheduled tracts\" and the local Governments were given the powers to extend by public notification, any enactment in force in British India. When the Government of India Act, 1915 (5 & 6 Geo V, Ch. 61) was enacted, while repealing by the Fourth Schedule the Government of India Act, 1870, section 71 was included in the 1915 Act which, in effect, provided the same procedure for making and applying laws as had been provided by the Act of 1870. The local Governments could propose draft regulations for peace and good Government of any part within their jurisdiction and the Governor-General after taking the draft regulations and the reasons into consideration could approve in his Council and assent to the Regulations. After his assent and on their publication in the official Gazette of India and in the local official Gazette, if any, they had the same force of law and were subject to the same disallowance as if they were the Act of the Governor-General in his Legislative Council. When the Government of India Act, 1919 (9 & JO Geo. V, Ch. 101) was passed s. 52-A. was inserted which read as follows :-\n\n\"52-A. Constitution of new provinces, etc., and provision as to backward tracts.\n\n:836\n\nSUPREME COURT REPORTS\n\n\n(I) •\n\n(2) The Governor-General in Council may declare any territory in British India to be a \"backward tract\", anc.I may, by notification, with such sanction as foresaid'. direct that this Act shall apply to that terntory subject to such exceptions and modifications as may be prescribed in the notification.\n\nWhere the Governor-General in Council has, by notification, directed as aforesaid, he may, by the same or subsequent notification, direct that any Act of the Indian legislature shall not apply to the territory in question or any part thereof, or shall apply to the territory or any part thereof subject to such exceptions or modifications as the Governor- General thinks fit, or may authorise the Governor in Council to give similar directions as respects any Act of the local legislaturee.\"\n\nThus at the inauguration of the Government of India Act, 1935 the position was that the Governor-General in Council or the Governor etc. with the approval of the Governor-General in Council legislatec.I for these backward tracts anc.I the Governor- General could direct that any Act of the Indian legislature should not apply at all or should apply with such exceptions and modifications as the Governor-General might think fit.\n\nWhen the Government of India Act, 1935 replaced the Government of India Act, an Order in Council was made in 1936 specifying the backward tracts and the 1935 Act included ss. 91 and 92 for the ascertainment of the backward tracts and for the making of laws in those areas.\n\nSection 92, which dealt with the administration of the excluded .areas and partially excluded areas, provided :\n\n\"92. Administration of excluded areas and partially excluded areas :\n\n(1) The executive authority of a Province extends to excluded and partially excluded areas therein, but, notwithstanding anything in Act, no Act of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit.\n\n(2) The Governor may make regulations for the peace and good Government of any area in a Proc - D\n\nNAGALAND v. RATAN SINGH (Hidayatullah, J.) 837\n\nvince which is for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Federal Legislature or of the Prov!ncil Legislatur~, or ny existing Indian Law, which 1s for the lime bemg applicable to the area in question.\n\nRegulations made under this sub-section shall be submitted forthwith to the Governor-General and until assented to by him in his discretion shall have no effect, and the provisions of this Part of this Act with respect to the power of His Majesty to disallow Acts shall apply in relation to any such regulations assented to by the Governor-General as they apply in relation to Acts of a Provincial Legislature assented to by him.\n\n(3) The Governor shall, as respects any area in a Province which is for the time being an excluded area, exercise his functions in his discretion.\"\n\nAfter this the Scheduled Districts Act became obsolete and was repealed by the Adaptation of Laws Order, 1937.\n\nNext came the inauguration of the Constitution. Article 244 made a special provision for the scheduled and tribal areas and the second clause of that article provided that the provisions of the Sixth Schedule were to apply to the administration of the tribal areas in the State of Assam. Originally in the Sixth Schedule to the Constitution the Naga Hills District was included as an autonomous district and was shown in Part A of Paragraph 20 and the Naga Tribal Area was shown in Part B. It is not necessary to refer in detail to the Sixth Schedule which provided for separate modes of administration of the Part A and Part B territories. The name Naga Tribal Area was changed to Tuensang Frontier Division by the North East Frontier Areas (Administration) Regulation, 1954 (No. I of 1954) which came into force on January 19, 1954. By the same Regulation the North East Frontier Tract was stated to include Ba!ipara Frontier Tract, the Tirap Frontier Tract, the Abor Hills District, the Misimi Hills District and with the Nitga Tribal Area was named collectively as the North East Frontier Agency. Then by the Naga Hills-Tuensang Area (Administration) Act, 1957 (42 of 1957), the Naga Hills District was omitted from Part A and the whole of the Naga Hills-Tuensang area was shown in Part B with effect from December I, 1957. The Tuensang area was the former N aga Tribal Area and the other two areas were the autonomous districts of Kohima and Mokokchung. T)le\n\nState of Nagaland was formed by the State of Nagaland Act, 1962 (27of1962). That Act repealed and replaced the Nagaland (Transitional Provisions) Regulation, 1961 (Regulation 2 of 1961). The\n\n\n(1966] 3 S.C.R.\n\nterritory of the new State comprises the Naga Hills-Tuensang Area and consists of three districts which are the Kohima District, the Mokokchung District and the Tuensang District. The State of Nagaland Act also deleted all references to the Naga Hills-Tuensang Area from the Sixth Schedule. The administration of the State of Nagaland was to be in accordance with the provisions of State of Nagaland Act. Among other things it provided for a common High Court for the State of Assam and the State of Nagaland, By section 26 it laid down :-\n\n\"26. Continuance of existing laws and their adaptation.-\n\n(I) All laws in force, immediately before the appointed day, in the Naga Hills-Tuensang Area shall continue to be in force in the State of Nagaland until altered, repealed or amended by a competent Legislature or other competent authority.\n\n(2) For the purpose of facilitating the application in relation to the State of Nagaland of any law made before the appointed day, the appropriate Government may, within two years from that day, by order make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.\n\nExp/anation.-In this seciion the expression \"appropriate Government\" means, as respects any law relating to a matter enunciated in the Union List in the Seventh Schedule to the Constitution.\n\nThe Central Government; and as respects any other law, the Government of Nagaland.\"\n\nSection 27 conferred power on courts, tribunals and authorities to nstrue, in the absence of adaptations, the laws in such manner, without affecting the substance, as may be necessary.\n\nBy s. 28 all courts tribunals and authorities discharging !av.fol functions were continued as before unless their continuance was inconsistent with the State of Nagaland Act. So much will suffice to describe the ground-work of law-making nder the. authority of ritish\n\nParliament the Governor-General m Council and the Parliament and Legisl; tures under the present Constitution. We shall now see the real crux of the problem because the Government and administration of these areas was often not carried on directly under laws made by the Governor-General either by himself or\n\nNAGALAND v. llATAN SINGH (Hidayatu!Jah, J.) 839\n\nA in his Council but through rules which were framed from time to time, by other agencies. We will now describe how these rules, some of which are in controversy in the present appeal, were made.\n\nOn September 24, 1869 the Governor-General enacted the Garo Hills Act, 1869 (Act 22 of 1869). By this Act the Garo Hills were removed from the jurisdiction of the Civil, Criminal and Revenue courts and offices established under the General Regulations and Acts and the Act provided for the administration of justice and collection of revenue. The Act repealed an earlier Act of 1835 (No. 6 of 1835) and the Bengal Regulation 10 of 1822, but in this case we are not required to go behind 1869. We are referring to this Act because it was extended also to the Naga Hills. Section 4 of the Act on extension provided that the territory known as the Naga Hills was removed from the jurisdiction of courts of Civil and Criminal Judicature as well as from the law prescribed for the said courts and no Act passed by the Council of the Governor-General for making laws and regulations was deemed to extend to any part of the said territory unless the same was specially named in it. By s. 5 the administration of Civil and Criminal justice was vested in such officers as the Lt. Governor might, for the purpose of tribunals of first instance or of reference and appeal, from time to time, appoint. The officers so appointed . were, in the matter of administration, subject to the direction and control of the Lt. Governor and were to be guided by such instructions as the Lt. Governor might, from time to time, issue.\n\nThe Lt. Governor could extend by notification any law or any portion of a law in force in the other territories subject to his Government or to be enacted by the Council of the Governor- General or of the Lt. Governor for making laws and regulations and while making such extensions cold direct by whom the powers and duties incident to the provisions so extended should be exercised or performed and might make any order which was. deemed requisite for carrying such provisions into operation. The Act also gave power by s. 9 to the Lt. Governor to extend mutatis mutandis all or any of the provisions contained in the other sections of the Act to the Jaintia Hills, the Naga Hills and to such portions of the Khasi Hills as for the time being formed parts of British India.\n\nThe Act was also extended to Khasi and Jaintia Hills and the authority of the Governor-General to enact the Act and of the Lt .\n\nGovernor to extend it was challenged. The decision of the Judicial Committee is reported in Queen v. Burah (L. R. 5 I.A. 178) which held that both the powers existed. On October 14, 1871 acting under s. 9 of the Act of 1869 the Lt. Governor extended the whole of the Act to the Naga Hills District and vested the administration of Civil and Criminal jurisdiction in the Commissioner of Assam subject to his own direction and control. The Commissioner\n\nSUPREME COURT RBPORTS\n\n(1966) 3 S.C.R.\n\nwas to exercise the powers of the High Court in Civil and Criminal cases triable in the Courts of the said districts but no sentence of death was to be carried out without the sanction of the Lt. Governor and it was competent to the Lt. Governor to call for the record of any criminal or civil case and to pass such orders thereon as he saw fit. The notification also ordered that cases mit then triable in the ordinary British Courts would not be triable therein and even in those cases which were triable in those courts, the officers were to guide themselves by the spirit of the laws prevailing in British India and in force in the districts. In continuation of this notification, the Lt. Governor made under s. 5 of the Act of 1869, in application to the Naga Hills (which he renamed the Naga Hills Agency) Rules for the Administration of Justice and Police in the Naga Hills Agency. These rules were first published on August 7,\n\n1872 and may be called, for brevity, the Rules of 1872.\n\nThe Rules of 1872, 39 in number, dealt with various topic$ but we shall set down the purport of such rules only as concern us.\n\nPart I was general and consisted of two rules.\n\nBy Rule 1, the administration of the Naga Hills Agency was vested in the Commissioner of Assam, the Political Agent and his assistants, the Mouzadars, Gaonburahs, Peumahs (Naga Chiefs) and Houshas (Kookie Chiefs) or headmen of Khels, or such other classes of officers as the Lt. Governor deemed fit.\n\nPart II provided for police and consisted of Rules 3 to 15. We are not concerned with it.\n\nCriminal justice was provided for in Part Ill (Rules 16 to 24) and Civil Justice in Part IV (Rules 25 to 30).\n\nWe arc only concerned with the former.\n\nCriminal justice was to be ordinarily administered by the Political Agent, his assistants and by the Mouzadars etc. The Political Agent could pass a sentence of death or imprisonment for a term unlimited or of fine up to any amount but not so as to exceed the value of the offender's property. No sentence of death was to be carried into effect without the concurrence of the Commissioner and the sanction of the Lt. Governor. Similarly, no sentence above 7 years' imprisonment could be carried into effect without the approval of the Commissioner. The Commissioner could enhance any sentence passed by his subordinates. The Assistant to the Political Agent was to exercise the powers of a Magistrate, First Class as laid down in the Criminal Procedure Code of 1872.\n\nThe Mouzadars etc. were to try petty offences and could impose a fine up to Rs. 50.\n\nThere were elaborate rules for trial by them and appeals lay against their decisii:i:s to the Political Agn.t or his Assistant. Appeals lay to the Pohllcal Agent from the dec1S1ons of his Assistant. No appeal lay as of right from the sentence of the Political Agent involving less than three years' imprisonm.ent but the Commissioner could call for the record of the case to sat1Sfy himself. Sentences above that period were appealable to the Com-\n\nA •\n\nD ...\n\nH ....\n\nNAGALAND v. llATAN SINGH (Hidayatullah, J.) 84 l\n\nA missioner. The Lt. Governor was empowered to review the proceedings of all subordinate officers. Rule 23 bore upo~ .the manner of the trial. It provided that the procedure of the Political Agent and his Assistant was to be in the spirit of the Code of Criminal Procedure as far as it was applicable to the circumstances of the\n\nDistrict and consistent with the Rules. The main exceptions. were:\n\n(a) Verbal notices fixing a date to appear were sufficient when the police was employed to convey them or the person was not resident or in the district or where his place of abode was not known.\n\n(b) Political Agent and his Assistant were to keep only the substance of all proceedings in cases requiring sentences below three years. In other cases, full notes of the proceedings had to be kept in English.\n\n(c) Proceedings before Mouzadars etc. were not required to be in writing but if a person could be found to be able to write, a brief note of the proceeding was to be made. ( d) All fines levied by the Mouzadars etc. were to be paid to the Political Agent or his Assistant or some officer specially empowered by the Political Agent.\n\n(e) It was discretionary to examine witnesses on oath E in any form or to warn them that they were liable to punishment for perjury if they stated what they knew to be false.\n\nOn February 6, 1874 there was formation of the Chief Commissionership in Assam. The Governor-General in Council issued a proclamation under s. 3 of 17 & 18 Viet., Ch. 77. By the proclamation he took under his immediate authority and management the backward territories then under the Lt.\n\nGovernor of Bengal including the Naga Hills. By another notification the Governor-General in Council in exercise of powers under s. 3 of the Act formed those territories into a Chief Commissionership called the Chief Commissionership of Assam. In April of the same year an Act (Act 8 of 1874) was passed to provide for the exercise within the said territories, of the powers which were before exercised under or by virtue of any Jaw or regulation by the Lt. Governor of Bengal and the Board of Revenue. By the first section these powers were transferred and vested in the Govemor- General in Council and by s. 2 the Governor-General ilt Council was empowered to delegate to the Chief Commissioner all or any of the powers or withdraw any power so delegated. On 16th of April, 1874 the Governor-General in Council by notification delegated to the Chief Commissioner of Assam powers which Ml2SupCl/66-8\n\nI /\n\n842 SUPlll!MJ! COUR.T Rl!POllTS (1966] 3 S.C.ll.\n\nwere fonnerly vested in or were exercisable by the Lt. Governor A of Bengal. On June 13, 1874 the Governor-General in Council\n\nmade alterations in the Rules of 1872 but only to make them accord with the political changes and republished them for general information. The changes were that wherever the Commissioner was mentioned in the Rules, the Chief Commissioner was substituted and where the Lt. Governor was mentioned the Governorn General was to be read. The Rules, however, remained the same.\n\nWe shall refer to these Rules as the Rules of 1874.\n\nDoubts having arisen in some cases as to which Acts or Regulations were in force or the boundaries of the territories in which they were in force and with a view to providing a ready means for ascertaining the enactments in force in the respective areas and the boundaries of the areas and for administering the law therein, an Act was passed by the Governor-General of India in Council.\n\nThis Act was intituled the Scheduled Districts Aet, 1874 (14 or 1874). This Act remained on the statute book till the Government of India Act, 1935 came into force when it was repealed by the Adaptation of Laws Order, 1937. The scheme of the relevant provisions of this Act was this. The Act extended to the whole of India. It defined \"Scheduled Districts\" by reference to its First Schedule and these districts were to include such other territories in which the Secretary of State in Council declared the provisions of 33 Viet. Ch. 3 (section 1) to be applicable. The Act repealed other enactments by its Second Schedule. By sections 3 and 4 the local Government was enabled, with the previous sanction of the Governor-General in Council to notify what enactments were in force and what were not in force in any of the Scheduled Districts and to correct any mistake of fact in a notification already issued under that Act but not so as to change a declaration once made and on the issue of such notifications the intended effect was to follow. By s. 5 the local Government with the previous sanction of the Governor-General in Council was enabled to extend to the Scheduled Districts any Act in force in British India. Sections 6 and 7, which were the subject of great discussion in this appeal, may be quoted for future reference:\n\n\"6. Appointment of officers and regulation of their procedure.\n\nThe Local Government may from time to time:-\n\n(a) appoint officers to administer civil and criminal justice and to superintend the settlement and collection of the public revenue, and all matters relating to rent, and otherwise to conduct the administration, within the Scheduled Districts,\n\n(b) regulate the procedure of the officers so appointed; but not so as to restrict the operation of any enactc\n\nA •\n\nNAGALAND v. RATAN SINGH (Hidayatullah, /.) 8'3\n\nment for the time being in force in any of the said Districts,\n\n(c) direct by what authority any jurisdiction, powers or duties incident to the operation of any enact•\n\nment for the time being in force in such District shall be exercised or performed.\"\n\n\"7. Continuance of existing rules and officers.\n\nAll rules heretofore prescribed by the Governor-\n\nGeneral in Council or the Local Government for the guidance of officers appointed within any of the Scheduled Districts for all or any of the purposes mentioned in section six and in force at the time of the passing of this Act, shall continue to be in force unless and until the Governor General in Council or the Local Government, as the case may be, otherwise directs.\n\nAll existing officers so appointed previous to the date on which this Act comes into force in such District, shall be deemed to have been appointed hereunder.\"\n\nSection 8 enabled settlement of question as to boundaries of Scheduled Districts. Section 9 indicated the place of imprisonment or of transportation. Sections 10 and 11 do not matter to us.\n\nThe Assam Frontier Tracts Regulation 1880 (Regulation ll of 1880) was next enacted to provide for the removal of certain Frontier Tracts in Assam from the operation of enactments in force there. Section 2 of the Regulation read:\n\n\"2. Power to direct that enactment shall cease to be in force.\n\nWhen this regulation has been extended in manner hereinbefore prescribed to any tract, the Chief Commissioner may from time to time, with the previous sanction of the Governor General in Council, by notification in the local Gazette, direct that any enactment in force in such tract shall cease to be in force therein, but not so as to affect the criminal jurisdiction of any court over European British Subjects.\"\n\nUnder the provisions of this Regulation the Criminal Proced~ Codes of 1882 and 1898 were withdrawn from the Naga Hills.\n\nBy proclamation No. 2832 dated the 1st September, 1905 the Governor-General, with the sanction of His Majesty, comtituted the Province of Assam (to which were added certain districta\n\nA • -.\n\nNAGALAND v. RATAN SINGH (Hidayatullah, !.) 845\n\nLt. Governorship. Eastern Bengal was reunited with West Bengal and Assam once again became a separate Province with a Chief Commissioner. This new scheme took effect from April 1, 1912.\n\nIn 1914 by two notifications (Nos. 5467P and 5459P dated 13-10-1914), which were issued under Regulation 2 of 1818, all enactments in force in the Western, Central, North East and Eastern Tracts were to cease to be in force and under s. 5 of the Scheduled Districts Act, 1874, the Indian Penal Code, the Indian Police Act, the Indian Arms Act, the Assam Land Revenue Regulation, the Assam Forest Regulation and the Whipping Act were extended by the Chief Commissioner with the previous sanction of the Governor-General in Council. The administration of Assam thereafter continued under the above mentioned Acts and the procedural part was taken from the Rules of 1906 which laid down that in criminal trials the spirit of the Criminal Procedure Code was to be followed because the Code itself was not in force. In 1921 Assam became a Governor's Province.\n\nWe next come to March 25, 1937. On that day the Governor of Assam prescribed revised Rules under the powers vested in him by s. 6 of the Scheduled Districts Act. These Rules did not materially differ from the Rules of 1872, 1874 and 1906. The Rules of 1937 began by stating that they cancelled \"all previous orders on the subject.\" The changes that were introduced were of the pattern we have known before. The administration of the Naga Hills was vested in the Governor of Assam, the Deputy Commissioner, the Additional Deputy Commissioners and Assistants to the Deputy Commissioner, the Mouzadars, etc. The Deputy Commissioner, the Additional Deputy Commissioner and Assistants to the Deputy Commissioner were to be appointed by the Governor. As a result of these changes, the provisions of Part III dealing with criminal justice were suitably amended. The first change was lo assign duties to the Additional Deputy Commissioner. The term Deputy Commissioner was said to include an Additional Deputy Commissioner and the latter had the same powers as the former (Rule !SA). The terms District Magistrates, Additional District Magistrates and Magistrates of the District, Sub-Divisional Magistrates or Magistrate of a Sub-Division were to refer to in any law in force in Naga Hills to the Deputy Commissioner, Additional Deputy Commissioner and Sub-Divisional Officers, Mokokchung (Rule 15B). In respect of all offences under the Indian Penal Code or under any other law to be investigated, inquired into, tried or otherwise dealt with according to the Rules of 1937 the words and expressions defined in s. 4 of the Criminal Procedure Code, 1898 were to have the same meanings.\n\nThe Deputy Commissioner could impose any sentence but the sentence of death was subject to confirmation by the High Court.\n\nThe Assistants to the Deputy Commissioner were equated to\n\n84&\n\nSUPREME\n\nCOUJ.T UPOllTS\n\n\nMagistrates of First Class, but the Governor could, if he thought\n\nfit, invest an Assistant to the Deputy Commissioner either generally or for trial of a particular case or cases with all powers of the Deputy Commissioner, except to pass a sentence of death. Another change was that instead of the Lt. Governor the High Court of Assam and the Deputy Commissioner could call for the record of any case and reduce, enhance or cancel any sentence or remand the case for retrial. Sentences of death passed by the Deputy Commissioner were subject to the confirmation by the High Court of Assam\n\nule 16-A) and the Deputy Commissioner while convicting the accused and sentencing him to death was to inform the accused about the period in which the appeal should be filed (Rule 16-B).\n\nThe other Rules defined the powers of the High Court in cases submitted for confirmation of sentence (Rule 16-C, D and E.).\n\nAppeals lay from the Deputy Commissioner to the High Court in any case.\n\nThese Rules, it is contended on behalf of the State of Nagaland, continue till today. They were amended in 1952, 1954, 1956 and !957. In 1937 by the Adaptation of Laws Order the Scheduled Districts Act was repealed but there was a special saving which read as follows:-\n\n\"This Act shall cease to have effect, without prejudice to the continuing validity of any notification, appointment, regulation, direction or determination made thereunder and in force immediately before the commencement of Part III of the Government of India Act, 1935 :\n\nProvided that, where immediately before the first day of April, 1937, any enactment is, by virtue of any notification made under this Act, in force in any area in British India, either with or without restrictions or modifications, the Central Government, in relation to matters enumerated in List I of the Seventh Schedule to the Government of India Act, 1935, and the Provincial Government, in relation to other matters, may, within six months from the said date, by notification in the Official Gazette, declare that the enactment in question shall have effect in that area subject to such modifications and adaptations specified in the notification as the Government in question may deem necessary or expedient to bring it into accord with the Government of India Act, 1935.\"\n\nIn 1945 the Assam Frontier (Administration of Justice) Regulation, 1945 (Regulation I of 1945) as enacted. It was .originally made applicable to Balipara, Lakh1mpur, Sad1ya and T1rap Frontier Tracts. It was applied to Tuensang m 1955.\n\nIn the main these Regulations were the same as h.e.Rules of 1.937 applicable in the Kohima and Mokokchung D1vmons but shght differ-\n\nA _..._\n\nD ,\n\nNAGALAND v. llATAN SINGH (Hidayatullah, J.) 847\n\ncnce existed in the powers of the High Court in the matter of transfers and appeals against acquittals. As these were the subject of an argument we shall refer to these differences later.\n\nBefore the formation of the State of Nagaland the laws in the Tuensang Frontier Division and those in force in the rest of the North-East Frontier Agency were assimilated by the Tuensang Frontier Division (Assimilation of Laws) Regulation, 1955 (No. 4 of 1955). These were made by the Governor in exercise of the powers conferred by clause (2) of Art. 243 of the Constitution read with Sub-paragraph (2) of paragraph 18 of the Sixth Schedule to the Constitution by the President of India. By Paragraph 3 of that Regulation all laws except the Tuensang Frontier Division (Undesirable Persons) Regulation, 1951, which were extended to or were in force in Tuensang Frontier Division but were not extended to and not in force in the rest of the North East Frontier Agency ceased to be in force in Tuensang Frontier Division.\n\nSimilarly, all laws which immediately before the appointed day did not extend to or were not in force in the Tuensang Frontier Division but extended to or were in force in the rest of the North East Frontier Agency, were extended to or came into force in the Tuensang Frontier Division. In other words, the laws in the North East Frontier Agency became completely uniform except in one respect, namely, the continued enforcement of the Undesirable Persons Regulation referred to above in Tuensang Division.\n\nAs the Criminal Procedure Code was never in force in any part of the North East Frontier Agency it did not come into force in the Tuensang Area. On the other hand, the Rules of 1937 if they were valid and in force got extended to the Tuensang area also.\n\nIn 1921, in accordance with the provisions of the Government of India Act, Assam became a Governor's Province and later one of the States in the Indian Republic. The Regulations of 1952, 1954, 1956 and 1957 were made by the Governor in exercise of his powers under the Sixth Schedule of the Constitution. We shall now consider the arguments in these appeals which have covered a wide field, and they were also apparently addressed in the High Court and found favour there.\n\nWe may here dispose of one argument which is somewhat independent of the others. It is contended that the Rules of 1937 did not survive the repeal of the Scheduled Districts Act, 1874 by the Adaptation of Laws Order, 1937, notwithstanding the saving clause in the Adaptation of Laws Order. This argument is based on the submission that the savings clause (reproduced earlier by us) did not mention rules as such. We do not agree.\n\nThe saving clause preserved all notifications. The Rules of 1937 were enacted by notification and if notifications were saved the Rules in the notification were also saved. After the passing of the Government of India Act, 1935, the Rules of 1937 would be successi-\n\n848 SUPREME COUl\\T llEPOllTS\n\n\nvely preserved by ss. 292 and 293 of the Government of India Act, 1935, s. 18 of the Indian Independence Act, 1947 and Art. 372 of the Omstitution. The real questions are whether they were invalid for any reason to start with or became void after the Con'1it•tion.\n\nThe powers of the Governor-General in Council and now of the President derived from the various constitutional documents are not and indeed cannot be in doubt.\n\nHence the attempt of the respondents is to challenge the powers of the Lt. Governor, Chief Commissioners and the Governor who have in turns made Rules for the administration of these areas. The attack is on the Rules of 1906 and 1937 as being incompetently made under the Scheduled Districts Act and on ss. 6 and 7 of the Scheduled Districts Act, if it be held that the Rules were competently made.\n\nWe shall deal first with these arguments.\n\nThe contention that the Rules of 1937 were void ab initio is supported by many arguments. The submission is that ss. 6 and 7 of the Scheduled Districts Act did not confer any powers of legislation to regulate judicial procedure. It is pointed out in this connection that s. 6(a) gave powers to appoint officers to administer civil and criminal justice ands. 6(b) allowed the procedure of the officers so appointed to be regulated which meant administrative procedure and no general law-making authority can be implied and s. 6(c) enabled the choosing of authority by which any jurisdiction, power or duty incident to the operation of any enactment for the time being in force should be exercised or performed in any scheduled district. Reference is made in this connection to s. 5 of the Act of 1869 where it was laid down that the offi- <:ers so appointed would, in the matter of administration and superintendence, be subject to the direction and control of the Governor and would be guided by such instructions as he might, from time to time, issue.\n\nIt is contended that by regulating the procedure is meant instructions on the administrative side.\n\nIn our opinion this is a wrong reading of the section.\n\nWe must not forget that the Scheduled Districts Act was passed because the backward tracts were never brought within the operation of all the general Acts and Regulations (particularly the Criminal Procedure Code) and were removed from the operation and jurisdiction of the ordinary courts of Judicature. In these areas the Indian Penal Code was always applicable but not the Code of Criminal Procedure. The local Governments were empowered by the Scheduled Districts Act to appoint officers to administer civil and criminal justice and to regulate the procedure of the officers so appointed. Officers appointed to administer civil and criminal justice must follow some procedure in performing this\n\ntask.\n\nRegulating procedure, therefore, meant more than framing\n\nNAOALAND v. !UTAN SINGH (Hidayatullah, !.) 849\n\nadministrative rules. It meant the control of the procedure for the effective administration of justice. It is significant that the Governor-General in Council, who enacted the Scheduled Districts Act, framed the Rules of 1874 containing comprehensive rules of procedure for dealing with criminal cases. This was a clear exposition of ss. 6 and 7 of the Scheduled Districts Act by the Governor-General in Council himself. The Act was understood as conferring full powers to regulate not the administrative procedure only but also the procedure for administration of criminaljustice.\n\nAs the Rules of 1872, 1874, 1906 and 1937 were almost the same (except for a few changes rendered necessary by the altered political conditions) it is clear that a succession of officers saw the necessity of Rules controlling not only the administrative side but the judicial side of administration of justice. In our judgment the construction of ss. 6 and 7 attempted by the respondents cannot be accepted.\n\nIt is next contended that the Act itself was bad because the Legislature did not legislate on the subject of judicial procedure but left essential legislation to a delegate, without laying down any or at least enough guidance in the Scheduled Districts Act for those who were to make Rules under it. In this connection learned counsel has drawn our attention to several rulings in which the question of excessive delegation has been considered by this Court and in particular we have been referred to Re the Delhi Laws Act, 1912,(1) Hamdard Dwakhana (Wakf)Lal Kuan v. Union of India,(2) Vasant/a/ Maganbhai Sanjanwa/a v. State of Bombay(3) and D. S. Grewal\n\nv. State of Punjab.(4) It is submitted that ss. 6 and 7 of the Scheduled Districts Act laid down no policy, and did not afford a guide in the making of Rules except to say that officers should be appointed to administer civil and crimin.al justice and that the local Government might regulate the procedure of such officers, thereby leaving the essential law-making to the delegate.\n\nIn this Court we have on several occasions pointed out that guidance may be sufficient if the nature of thing to be done and the purpose for which it is to be done is clearly indicated. Instances of such legislation were cited before us and the case of Harishankar Bag/a v. Madhya Pradesh(S) was one of them. The policy and purpose may be pointed out in the section conferring the powers and may even be indicated in the preamble or elsewhere in the Act.\n\nThe preamble of the Scheduled Districts Act shows that these backward tracts were never brought within, but from time to time were removed from, the operation of general Acts and Regulations and the jurisdiction of the ordinary courts of judicature was also excluded.\n\nIt was therefore necessary to ascertain the enactments\n\n(I) [1951] S.C.R. 747.\n\n\n(3) (1961] I S.C.R. 341.\n\n(4) (1959] Supp. I S.C.R. 792.\n\n(5) [1955] I S.C.R. 288.\n\n850 IUP•Elll! COU.T lll!PO!lTS\n\n\nin force and to set up a machinery for making simple rules. The Act conferred on the local Governments power to appoint officers for administration of civil and criminal justice within the Scheduled Districts and empowered the local Government to regulate the procedure of the officers so appointed and to confer on them authority and jurisdiction, powers and duties incident to the administration of civil and criminal justice. These provisions afforded sufficient guide to the local Government that the administration of civil and criminal justice was to be done under their control by the officers appointed by them and the procedure which they were to follow must be laid down. This was not an instance, therefore, of excessive delegation at all. The Legislature clearly indicated the policy and the manner of effectuating that policy. There was sufficient guidance in the three sub-sections of s. 6 read as a whole with the preamble and the Chief Commissioner's Rules made in 1872 and republished in 1874 by the Governor-General in Council were also available as a further guide as the last were continued in force by s. 7. Indeed, the subsequent Rules of 1906 and 1937 repeated the Rules of 1872 & 1874 with amendments necessary owing to political changes and only slightly liberalised them in some ways. We do not consider that there was excessive delegation of legislative authority by the Legislature.\n\nIt is next contended that s. 7 of the Scheduled Districts Act did not confer any power upon the local Government to alter in any way the Rules made by the Governor-General in Council.\n\nThat section says that Rules which had hitherto been prescribed by the Governor-General or the local Government for the guidance of the officers appointed within any of the scheduled districts were to continue to be in force unless and until the Governor- General or the local Government, as the case may be, otherwise directed. It is admitted that the Governor-General in Council, possessing an overriding power, might even have amended the Rules made by the local Government. But it is submitted that the Governor-General in Council could amend his own Rules and the local Government could amend its own Rules but the Local Government, being a delegate, could not amend or cancel the Rules of the Governor-General in Council. It is urged that the Rules of 1906 made by the Lt. Governor and the Rules of 1937 made by the Governor were ineffective. With regard to the Rules of 1906 it is sufficient to say that the Bengal Assam Laws Act 1905 authorised local Government by notification to say by what officer any authority or power was to be exercisable and any such no1ijicatio11 was to have effect as if enacted in the Act itself. When the Rules of 1906 were made by the local Government they had effect as if they were enacted in Act 7 of 1905. But the power could be exercised by the Governor under the Scheduled Districts Act ss. 6 and 7 to make fresh Rules.\n\nBy that Act the Governor-General in Council conferred on the\n\nF ,\n\nNAGALAND v. JlATAN SINGH (Hidayatullah, J.) 85?\n\nA local Government an equal or concurrent power and this is clearly indicated by the word \"as the case may be\" in s. 7 of the Act.\n\nThose words do not, as it contended, show that the local Government could only amend its own Rules. These words rather show that whoever made the rules the authority of the Act would make them binding. In our judgment the Rules of 1937 were validly B enacted.\n\nIn order to avoid this implication, the Rules are attacked as ultra vires Arts. 21and14. Article 21 is used because it is contended that these Rules do not amount to law as we understand it, particularly where the Rules say that not the Criminal Procedure Code but its spirit is to govern the administration of justice.\n\nIt is urged that this is not a law because it leaves each officer free to act arbitrarily. This is not a fair reading of the Rule. How the spirit of the Code is to be applied and not its letter was considered by this Court in Gurumayum Sakhigopa/ Sarma v. K. Ongbi Anisija Devi (Civil Appeal No. 659 of 1957 decided on 9th of February, 1961) in connection with the Code of Civil Procedure. With reference to a similar rule that the courts should be guided by the spirit and should not be bound by the Jetter of the Code of Civil Procedure this Court explained that the reason appeared to be that the technicalities of the Code, should not trammel litigation embarked upon by a people unused to them. In that case although a suit was ordered to be dismissed for default of appearance, an order was passed on merits. The question arose whether it was dismissed under0·9r. 8 or0·17 r. 3 of the Code of Civil Procedure. It was held by this Court that it did not matter under which Order it was dismissed but that no second suit could be brought on the same cause of action without getting rid of the order dismissing the suit. In this way this Court applied the spirit of the Code and put aside the technicalities by attempting to find out whether the dismissal was referable to 0. 9, r. 8 or 0. 17, r. 3 of the Code.\n\nThat case illustrates how the spirit of the Code is used rather than the technical rule. In the same way, under the criminal administration of justice the technical rules are not to prevail. over the substance of the matter. The Deputy Commissioner in trying criminal cases would hold the trial according to the exigency of the case. In a petty case he would follow the summons procedure but in a heinous one he would follow the procedure in a warrant case.\n\nThe question of a Sessions trial cannot arise because there is no provision for committal proceeding and there are no Sessions Judges in these areas. Therefore, the Deputy Commissioner who was trying the case observed that he was going to observe the warrant procedure and in the circumstances he was observing the spirit of the Code.\n\nLaws of this kind are made with an eye to simplicity. People in backward tracts cannot be expected to make themselves aware\n\nNAGALAND V. 11.ATAN SINGH (Hidayatu//ah, J.) 85 3\n\nA of Nagaland. We have, however, no reason to think that the Advocate-General could have conceded this point. It was made clear to us that there was some mistake and the assumption made by Nayudu J. was based on a misapprehension. It is now admitted by Mr. A. K. Sen on behalf of the respondants that the Criminal Procedure Code does not apply to any of the three districts and B therefore there is no question of any discrimination between one district and another in Nagaland.\n\n• I\n\nLastly, it is contended that the Rules themselves allow for discrimination because one officer may take something to be the spirit of the Criminal Procedure Code and another may not. The requirements of the case must determine what should be applied from the Criminal Procedure Code and what should not. The Rules have been purposely made elastic so that different kinds of cases and different situations may be handled not according to a set pattern but according to the requirements of the situation and the circumstances of the case. In a backward tract the accused is not in a position to defend himself meticulously according to a complex Code. It is, therefore, necessary to leave the Judge free\n\nso that he may mould his proceedings to suit the situation and may be able to apply the essential rules on which our administration of justice is based untramelled by any technical rule unless that rule is essential to further the cause of justice. This would rather lead to less discrimination because each accused would be afforded an opportunity which his case and cricumstances require. The Rules of 1937 were designed for an extremely simple and unsophisticated society and approximate to the rules of natural justice.\n\nIt is impossible in such cricumstances to think, that because the Judge has more discretion than if he acted under the Criminal Procedure Code or is able to bring different considerations to the aid of administration of justice that there must be discrimination.\n\nIf a Judge does not apply the spirit. of the Code but goes against it or acts in a manner which may be considered to be perverse the High Court will consider his action and set it right. As we said earlier the law has not attempted to control discretion by .\n\nRules in this area but has rather left discretion free so that the rule may not hamper the administration of justice. As there is no vested right in procedure the respondents cannot claim that they be tried under the Criminal Procedure Code in this State where the Code is excluded. In such a situation it is difficult to find discrimination.\n\nH It was lastly contended that there is discrimination between one set of rules and another; that in some of the other backward tracts of Assam the rules are different and a comparative study was made before us of the different rules, as for example, Rules of 1874 '\n\n854 SUPRliMB\n\nCOURT RJIPOllTS\n\n(1966) 3 S.C.ll.\n\n1937 and the Assam Frontier Administration of Justice Regulation, 1945 which applied to Balipura, Lakhimpur, Sadiya and Tirap tracts and had been applied in Tuensang Division in 1955. The main differences are in the matter of appeals against acquittals and the power of transfer. In so far as the appeals against acquittals are concerned, it is, of course, obvious that where such a power is not conferred there cannot be an appeal against acquittals. In so far as transfer is concerned, we see no difficulty because the rules were different to start with in different districts and even if the provisions for transfer may not be in one part the spirit of the Code of Criminal Procedure would permit transfer in that part. Similarly, in some places confirmation of sentence above 7 years is required and in some others there is only a right of appeal. This depends on how advanced each area is. The attempt, of course, is to bring these territories under the Criminal Procedure Code applicable in the rest of India, by such stages as appear justified.\n\nAs that stage is not yet reached little differences must exist but no discrimination can be spelled out from the differences. Art. 371A\n\nof the Constitution itself contemplates a different treatment of these tracts and the differences are justified by the vast differences bet- D ween the needs of social conditions in Nagaland and the various stages of development .of different parts. We do not, therefore, consider that a companson of these rules leads to any conclusion that there is likelihood of discrimination which would offend the Constitution.\n\nWe accordingly hold that the Rules of 1937 continue to be in force and govern the trial of these respondents. The Code of Criminal Procedure admittedly does not apply there and the Additional Deputy Commissioner was therefore right in holding the trial under the Rules of 1937. It is obvious that in following the spirit of the Code and in applying the warrant procedure the Deputy Commissioner followed the right procedure and the High Court was in error in thinking that neither the Rules of 1937, nor any Rules applied to this area. We accordingly allow the appeals and set aside the order of the High Court. The trial of the respondents shall proceed under the Rules of 1937.\n\nWe may, however, say that it would be better if, as soon as it is found to be expedient, all Rules are cancelled and one uniform set of Rules is made for the whole of this area. This would obYiate having to find out through the mazes of history and the congeries of rules, notifications and regulations what law is applicable. If any diffici!lty is felt In making new rules recourse may easily be taken to the provisions of s. 31 of the State of Nagaland Act which enables the President, by order, to remove any difficulty to give effect to the provisions of the State of Nagaland Act. The history of this area shows that there have been difficulties in the past in\n\n....\n\n, .\n\nNAGALAND v. llATAN SINGH (Hidayatullah, /.) 855\n\nA ascertaining laws which were applicable at any point of time in any particular area and led to the passing of many Acts of British Parliament and of the Governor-General in Council to remove such difficufties. We do not think that such a state of affairs should continue indefinitely when the State of Nagaland Act itself gives sufficient power to remove difficulties.\n\nB Appeals allowed.", "total_entities": 230, "entities": [{"text": "STATE OF NAGALAND", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "STATE OF NAGALAND", "offset_not_found": false}}, {"text": "RA TAN SINGH, ETC", "label": "RESPONDENT", "start_char": 19, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "RA TAN SINGH, ETC", "offset_not_found": false}}, {"text": "March 9, 1966", "label": "DATE", "start_char": 39, "end_char": 52, "source": "ner", "metadata": {"in_sentence": "March 9, 1966\n\n[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, HIDAYATULLAH,\n\nJ. C. SHAH AND S. M. SIKRI, JJ.j\n\nScheduled Districts Act, 1874-Rule• thereunder-If valid and in fore~!"}}, {"text": "P. B. 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"source": "regex", "metadata": {}}, {"text": "Dy tho Government of India Act, 1870", "label": "STATUTE", "start_char": 1728, "end_char": 1764, "source": "regex", "metadata": {}}, {"text": "Scheduled Districts Act, 1874", "label": "STATUTE", "start_char": 2048, "end_char": 2077, "source": "regex", "metadata": {}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 2674, "end_char": 2695, "source": "regex", "metadata": {}}, {"text": "Art. 244", "label": "PROVISION", "start_char": 2707, "end_char": 2715, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "State of Nagaland was formed by the State of Nagaland Act, 1962", "label": "STATUTE", "start_char": 2782, "end_char": 2845, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "State of Nagaland Act", "label": "STATUTE", "start_char": 3015, "end_char": 3036, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, 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"start_char": 4903, "end_char": 4911, "source": "regex", "metadata": {"linked_statute_text": "the Indian Independence Act, 1947", "statute": "the Indian Independence Act, 1947"}}, {"text": "WM no excessive delegation under the Scheduled Districts Act", "label": "STATUTE", "start_char": 4954, "end_char": 5014, "source": "regex", "metadata": {}}, {"text": "s. 6", "label": "PROVISION", "start_char": 5809, "end_char": 5813, "source": "regex", "metadata": {"linked_statute_text": "There WM no excessive delegation under the Scheduled Districts Act", "statute": "There WM no excessive delegation under the Scheduled Districts Act"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 6033, "end_char": 6037, "source": "regex", "metadata": {"statute": null}}, {"text": "By the Scheduled Districts Act", "label": "STATUTE", "start_char": 6054, "end_char": 6084, "source": "regex", "metadata": {}}, {"text": "s. 7", "label": "PROVISION", "start_char": 6247, "end_char": 6251, "source": "regex", "metadata": {"linked_statute_text": "DJ\n\nBy the Scheduled Districts Act", "statute": "DJ\n\nBy the Scheduled Districts Act"}}, {"text": "Article 21", "label": "PROVISION", "start_char": 6445, "end_char": 6455, "source": "regex", "metadata": {"linked_statute_text": "DJ\n\nBy the Scheduled Districts Act", "statute": "DJ\n\nBy the Scheduled Districts Act"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 7162, "end_char": 7188, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "India", "label": "GPE", "start_char": 7713, "end_char": 7718, "source": "ner", "metadata": {"in_sentence": "These backward tracts were not found suitable for the applic.1tion of the Criminal Procedure Code in all its ,; gour and technicality and to say that they were to be governed, not by the technical rules of the Code, but by the substance of such ru1 .. was not to discriminate this area against the rest of India. ("}}, {"text": "Ibis", "label": "GPE", "start_char": 7791, "end_char": 7795, "source": "ner", "metadata": {"in_sentence": "852 E-G]\n\nThe law had not attempted to control discretion by Rules in Ibis area but had rightly left discretion free so that the rule might not hamper the administration of justice."}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 8261, "end_char": 8287, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 371", "label": "PROVISION", "start_char": 8333, "end_char": 8344, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Nagaland", "label": "GPE", "start_char": 8524, "end_char": 8532, "source": "ner", "metadata": {"in_sentence": "Article 371 of the Constitution it>elf coatcmplatcs a diffecent treatment of these tracts and the differences are justified by the vast differences between the needs of social conditions .In Nagaland and the \\1lrious stages of development of different parts of this area. ["}}, {"text": "Assam and Nagaland High Court", "label": "COURT", "start_char": 8824, "end_char": 8853, "source": "ner", "metadata": {"in_sentence": "1965 of the Assam and Nagaland High Court in Civil Rules Nos."}}, {"text": "C. K. Daphtary", "label": "OTHER_PERSON", "start_char": 8911, "end_char": 8925, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, D. M. Sen, Advocate F General for the State of Noga/and, P. K. Goswami, Anil Barthukar, B. Dutta and Naunit Lal, for the appellant (in all the appeals.)"}}, {"text": "D. M. Sen", "label": "LAWYER", "start_char": 8945, "end_char": 8954, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, D. M. Sen, Advocate F General for the State of Noga/and, P. K. Goswami, Anil Barthukar, B. Dutta and Naunit Lal, for the appellant (in all the appeals.)"}}, {"text": "P. K. Goswami", "label": "LAWYER", "start_char": 9002, "end_char": 9015, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, D. M. Sen, Advocate F General for the State of Noga/and, P. K. Goswami, Anil Barthukar, B. Dutta and Naunit Lal, for the appellant (in all the appeals.)"}}, {"text": "Anil Barthukar", "label": "LAWYER", "start_char": 9017, "end_char": 9031, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, D. M. Sen, Advocate F General for the State of Noga/and, P. K. Goswami, Anil Barthukar, B. Dutta and Naunit Lal, for the appellant (in all the appeals.)"}}, {"text": "B. Dutta", "label": "LAWYER", "start_char": 9033, "end_char": 9041, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, D. M. Sen, Advocate F General for the State of Noga/and, P. K. Goswami, Anil Barthukar, B. Dutta and Naunit Lal, for the appellant (in all the appeals.)"}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 9046, "end_char": 9056, "source": "ner", "metadata": {"in_sentence": "C. K. Daphtary, Attorney-General, D. M. Sen, Advocate F General for the State of Noga/and, P. K. Goswami, Anil Barthukar, B. Dutta and Naunit Lal, for the appellant (in all the appeals.)"}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 9099, "end_char": 9108, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. S. Ray, I!."}}, {"text": "S. S. Ray", "label": "LAWYER", "start_char": 9110, "end_char": 9119, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. S. Ray, I!."}}, {"text": "I!. K. Puri", "label": "LAWYER", "start_char": 9121, "end_char": 9132, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. S. Ray, I!."}}, {"text": "H. L. Arora", "label": "LAWYER", "start_char": 9137, "end_char": 9148, "source": "ner", "metadata": {"in_sentence": "K. Puri and H. L. Arora, for the respondents (in all the appeals)."}}, {"text": "Nimz De", "label": "LAWYER", "start_char": 9193, "end_char": 9200, "source": "ner", "metadata": {"in_sentence": "Nimz De, Additional Solicitor-General and Naunit Lal, for the intervener."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 9312, "end_char": 9324, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatullah, J. These are appeals by the State of Nagaland against the judgment and order of the High Court of Assam and Nagaland, August 26, 1965, by which the High Court, allowing certain writ petitions filed by the respondents, issued a writ of mandamus directing the Adliitional Deputy Commissioner, Kohima and the State of Nagaland, not to proceed with the trial of the\n\nNAGALANI> V, RATAN SINGH (Hidayatullah, J.) 833\n\nA respondents.", "canonical_name": "HIDAYATULLAH,\n\nJ."}}, {"text": "August 3, 1964", "label": "DATE", "start_char": 10140, "end_char": 10154, "source": "ner", "metadata": {"in_sentence": "On receipt of information that on or about August 3, 1964, seven hostile Nagas, 'Who were captured and kept prisoners with the C.R.P. at Pfutser Camp, were murdered and their dead bodies secretly disposed of, the police, after investigating the report, .arrested 44 persons and charged them with offences under ss."}}, {"text": "ss.\n\n302", "label": "PROVISION", "start_char": 10408, "end_char": 10416, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 10433, "end_char": 10450, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "C.R.P.", "label": "ORG", "start_char": 10478, "end_char": 10484, "source": "ner", "metadata": {"in_sentence": "Some other members of the C.R.P. were charged at the same time under s. 436, Indian Penal Code for setting fire to some houses in certain villages."}}, {"text": "s. 436", "label": "PROVISION", "start_char": 10521, "end_char": 10527, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 10529, "end_char": 10546, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Kohima", "label": "GPE", "start_char": 10677, "end_char": 10683, "source": "ner", "metadata": {"in_sentence": "The trial was about to take place before the Additional Deputy Commissioner, Kohima, when an objection was taken that the trial should be before the Court of Session after commitment, as the offences were triable by the Court of Session exclusively, under the Code of Criminal Procedure."}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 10860, "end_char": 10886, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Naga Hills District", "label": "GPE", "start_char": 11273, "end_char": 11292, "source": "ner", "metadata": {"in_sentence": "He ruled that committal proceedings and trial before a Sessions Court were, therefore, not possible and the procedure laid down in the Rules for the Administration of Justice and Police in the Naga Hills District, 1937, would be followed."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 11428, "end_char": 11436, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "C.\n\nSanjeeva Rao Nayudu", "label": "JUDGE", "start_char": 11605, "end_char": 11628, "source": "ner", "metadata": {"in_sentence": "By the order impugned here a Divisional Bench consisting of C.\n\nSanjeeva Rao Nayudu and S. K. Dutta JJ.,"}}, {"text": "S. K. Dutta", "label": "JUDGE", "start_char": 11633, "end_char": 11644, "source": "ner", "metadata": {"in_sentence": "By the order impugned here a Divisional Bench consisting of C.\n\nSanjeeva Rao Nayudu and S. K. Dutta JJ.,"}}, {"text": "Justice Dutta in a brief judgment reached the conclusion that the Rules", "label": "STATUTE", "start_char": 11920, "end_char": 11991, "source": "regex", "metadata": {}}, {"text": "Assam", "label": "GPE", "start_char": 12024, "end_char": 12029, "source": "ner", "metadata": {"in_sentence": "Mr. Justice Dutta in a brief judgment reached the conclusion that the Rules of 1937 made by the Governor of Assam and the earlier rules made by the Lt."}}, {"text": "November 29, 1906", "label": "DATE", "start_char": 12082, "end_char": 12099, "source": "ner", "metadata": {"in_sentence": "Go- vernor on November 29, 1906 were not validly made."}}, {"text": "Scheduled Districts Act, 1874", "label": "STATUTE", "start_char": 13006, "end_char": 13035, "source": "regex", "metadata": {}}, {"text": "British Parliament", "label": "ORG", "start_char": 13208, "end_char": 13226, "source": "ner", "metadata": {"in_sentence": "We have not found it easy to summarize his reasons effectively but, briefly stated, they were : that the Rules of 1937 were void ab initio because the Scheduled Districts Act, 1874 under which the Governor purported to make them did not give him any authority to make them; that if the Act gave such authority, it was itself ultra 1ires the statutes of British Parliament and involved excessive delegation; that on the repeal of Scheduled Districts Act in 1937, all ruled made under it lapsed; that the Rules of 1937 were vague, uncertain and elusive and were not law as contemplated by Art."}}, {"text": "Scheduled Districts Act", "label": "STATUTE", "start_char": 13284, "end_char": 13307, "source": "regex", "metadata": {}}, {"text": "Art. 21", "label": "PROVISION", "start_char": 13442, "end_char": 13449, "source": "regex", "metadata": {"linked_statute_text": "Scheduled Districts Act", "statute": "Scheduled Districts Act"}}, {"text": "Nayudu", "label": "JUDGE", "start_char": 13879, "end_char": 13885, "source": "ner", "metadata": {"in_sentence": "We need not at this stage attempt to enlarge upon the various themes because the arguments on behalf of the respondents have presented a selection of the reasons which were given by Mr. Justice Nayudu and they will appear in appropriate places in our Judgment."}}, {"text": "Arts. 14 and 21", "label": "PROVISION", "start_char": 14717, "end_char": 14732, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "East India Company", "label": "ORG", "start_char": 15109, "end_char": 15127, "source": "ner", "metadata": {"in_sentence": "Even prior to the taking over of the Government of the territories formerly administered by the East India Company the making of laws wa-; entrusted to the Governor-General in Council under 3 & 4 William IV, Ch."}}, {"text": "Government of East Jndia Company", "label": "ORG", "start_char": 15327, "end_char": 15359, "source": "ner", "metadata": {"in_sentence": "They allowed laws to be made directly for the areas which were under the Government of East Jndia Company."}}, {"text": "After the Indian Councils Act", "label": "STATUTE", "start_char": 15361, "end_char": 15390, "source": "regex", "metadata": {}}, {"text": "Section 22", "label": "PROVISION", "start_char": 15551, "end_char": 15561, "source": "regex", "metadata": {"linked_statute_text": "After the Indian Councils Act", "statute": "After the Indian Councils Act"}}, {"text": "This state of affairs existed right down to the Government of India Act, 1915", "label": "STATUTE", "start_char": 16825, "end_char": 16902, "source": "regex", "metadata": {}}, {"text": "Scheduled Districts Act, 1874", "label": "STATUTE", "start_char": 17012, "end_char": 17041, "source": "regex", "metadata": {}}, {"text": "British India", "label": "GPE", "start_char": 17517, "end_char": 17530, "source": "ner", "metadata": {"in_sentence": "The Act, therefore, specified \"scheduled tracts\" and the local Governments were given the powers to extend by public notification, any enactment in force in British India."}}, {"text": "When the Government of India Act, 1915", "label": "STATUTE", "start_char": 17532, "end_char": 17570, "source": "regex", "metadata": {}}, {"text": "Fourth Schedule the Government of India Act, 1870", "label": "STATUTE", "start_char": 17629, "end_char": 17678, "source": "regex", "metadata": {}}, {"text": "section 71", "label": "PROVISION", "start_char": 17680, "end_char": 17690, "source": "regex", "metadata": {"linked_statute_text": "the Fourth Schedule the Government of India Act, 1870", "statute": "the Fourth Schedule the Government of India Act, 1870"}}, {"text": "When the Government of India Act, 1919", "label": "STATUTE", "start_char": 18380, "end_char": 18418, "source": "regex", "metadata": {}}, {"text": "s. 52", "label": "PROVISION", "start_char": 18455, "end_char": 18460, "source": "regex", "metadata": {"linked_statute_text": "When the Government of India Act, 1919", "statute": "When the Government of India Act, 1919"}}, {"text": "Constitution of new provinces", "label": "RESPONDENT", "start_char": 18510, "end_char": 18539, "source": "ner", "metadata": {"in_sentence": "101) was passed s. 52-A. was inserted which read as follows :-\n\n\"52-A. Constitution of new provinces, etc.,"}}, {"text": "Thus at the inauguration of the Government of India Act, 1935", "label": "STATUTE", "start_char": 19419, "end_char": 19480, "source": "regex", "metadata": {}}, {"text": "When the Government of India Act, 1935", "label": "STATUTE", "start_char": 19849, "end_char": 19887, "source": "regex", "metadata": {}}, {"text": "ss. 91 and 92", "label": "PROVISION", "start_char": 20020, "end_char": 20033, "source": "regex", "metadata": {"linked_statute_text": "When the Government of India Act, 1935", "statute": "When the Government of India Act, 1935"}}, {"text": "Section 92", "label": "PROVISION", "start_char": 20123, "end_char": 20133, "source": "regex", "metadata": {"linked_statute_text": "When the Government of India Act, 1935", "statute": "When the Government of India Act, 1935"}}, {"text": "After this the Scheduled Districts Act", "label": "STATUTE", "start_char": 21884, "end_char": 21922, "source": "regex", "metadata": {}}, {"text": "Article 244", "label": "PROVISION", "start_char": 22044, "end_char": 22055, "source": "regex", "metadata": {"linked_statute_text": "After this the Scheduled Districts Act", "statute": "After this the Scheduled Districts Act"}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 22190, "end_char": 22204, "source": "regex", "metadata": {"linked_statute_text": "After this the Scheduled Districts Act", "statute": "After this the Scheduled Districts Act"}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 22302, "end_char": 22316, "source": "regex", "metadata": {"linked_statute_text": "After this the Scheduled Districts Act", "statute": "After this the Scheduled Districts Act"}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 22532, "end_char": 22546, "source": "regex", "metadata": {"linked_statute_text": "After this the Scheduled Districts Act", "statute": "After this the Scheduled Districts Act"}}, {"text": "January 19, 1954", "label": "DATE", "start_char": 22813, "end_char": 22829, "source": "ner", "metadata": {"in_sentence": "I of 1954) which came into force on January 19, 1954."}}, {"text": "Misimi Hills District", "label": "GPE", "start_char": 22986, "end_char": 23007, "source": "ner", "metadata": {"in_sentence": "By the same Regulation the North East Frontier Tract was stated to include Ba!ipara Frontier Tract, the Tirap Frontier Tract, the Abor Hills District, the Misimi Hills District and with the Nitga Tribal Area was named collectively as the North East Frontier Agency."}}, {"text": "Mokokchung", "label": "GPE", "start_char": 23443, "end_char": 23453, "source": "ner", "metadata": {"in_sentence": "The Tuensang area was the former N aga Tribal Area and the other two areas were the autonomous districts of Kohima and Mokokchung."}}, {"text": "State of Nagaland was formed by the State of Nagaland Act, 1962", "label": "STATUTE", "start_char": 23461, "end_char": 23524, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Kohima District", "label": "GPE", "start_char": 23783, "end_char": 23798, "source": "ner", "metadata": {"in_sentence": "The\n\n(1966] 3 S.C.R.\n\nterritory of the new State comprises the Naga Hills-Tuensang Area and consists of three districts which are the Kohima District, the Mokokchung District and the Tuensang District."}}, {"text": "Mokokchung District", "label": "GPE", "start_char": 23804, "end_char": 23823, "source": "ner", "metadata": {"in_sentence": "The\n\n(1966] 3 S.C.R.\n\nterritory of the new State comprises the Naga Hills-Tuensang Area and consists of three districts which are the Kohima District, the Mokokchung District and the Tuensang District."}}, {"text": "Tuensang District", "label": "GPE", "start_char": 23832, "end_char": 23849, "source": "ner", "metadata": {"in_sentence": "The\n\n(1966] 3 S.C.R.\n\nterritory of the new State comprises the Naga Hills-Tuensang Area and consists of three districts which are the Kohima District, the Mokokchung District and the Tuensang District."}}, {"text": "State of Nagaland Act", "label": "STATUTE", "start_char": 23855, "end_char": 23876, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 23946, "end_char": 23960, "source": "regex", "metadata": {"linked_statute_text": "State of Nagaland was formed by the State of Nagaland Act, 1962", "statute": "State of Nagaland was formed by the State of Nagaland Act, 1962"}}, {"text": "State of Nagaland Act", "label": "STATUTE", "start_char": 24053, "end_char": 24074, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "State of Assam", "label": "ORG", "start_char": 24139, "end_char": 24153, "source": "ner", "metadata": {"in_sentence": "Among other things it provided for a common High Court for the State of Assam and the State of Nagaland, By section 26 it laid down :-\n\n\"26."}}, {"text": "State of Nagaland", "label": "GPE", "start_char": 24162, "end_char": 24179, "source": "ner", "metadata": {"in_sentence": "Among other things it provided for a common High Court for the State of Assam and the State of Nagaland, By section 26 it laid down :-\n\n\"26."}}, {"text": "section 26", "label": "PROVISION", "start_char": 24184, "end_char": 24194, "source": "regex", "metadata": {"linked_statute_text": "State of Nagaland was formed by the State of Nagaland Act, 1962", "statute": "State of Nagaland was formed by the State of Nagaland Act, 1962"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 25186, "end_char": 25202, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 25229, "end_char": 25247, "source": "ner", "metadata": {"in_sentence": "The Central Government; and as respects any other law, the Government of Nagaland.\""}}, {"text": "Government of Nagaland", "label": "ORG", "start_char": 25284, "end_char": 25306, "source": "ner", "metadata": {"in_sentence": "The Central Government; and as respects any other law, the Government of Nagaland.\""}}, {"text": "Section 27", "label": "PROVISION", "start_char": 25310, "end_char": 25320, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 28", "label": "PROVISION", "start_char": 25499, "end_char": 25504, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Nagaland Act", "label": "STATUTE", "start_char": 25648, "end_char": 25669, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "September 24, 1869", "label": "DATE", "start_char": 26324, "end_char": 26342, "source": "ner", "metadata": {"in_sentence": "On September 24, 1869 the Governor-General enacted the Garo Hills Act, 1869 (Act 22 of 1869)."}}, {"text": "Governor-General enacted the Garo Hills Act, 1869", "label": "STATUTE", "start_char": 26347, "end_char": 26396, "source": "regex", "metadata": {}}, {"text": "Naga Hills", "label": "GPE", "start_char": 26879, "end_char": 26889, "source": "ner", "metadata": {"in_sentence": "We are referring to this Act because it was extended also to the Naga Hills."}}, {"text": "Section 4", "label": "PROVISION", "start_char": 26891, "end_char": 26900, "source": "regex", "metadata": {"linked_statute_text": "Criminal and Revenue courts and offices established under the General Regulations and Acts and the Act", "statute": "Criminal and Revenue courts and offices established under the General Regulations and Acts and the Act"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 27299, "end_char": 27303, "source": "regex", "metadata": {"linked_statute_text": "Criminal and Revenue courts and offices established under the General Regulations and Acts and the Act", "statute": "Criminal and Revenue courts and offices established under the General Regulations and Acts and the Act"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 28254, "end_char": 28258, "source": "regex", "metadata": {"statute": null}}, {"text": "Jaintia Hills", "label": "GPE", "start_char": 28385, "end_char": 28398, "source": "ner", "metadata": {"in_sentence": "Governor to extend mutatis mutandis all or any of the provisions contained in the other sections of the Act to the Jaintia Hills, the Naga Hills and to such portions of the Khasi Hills as for the time being formed parts of British India."}}, {"text": "Khasi Hills", "label": "GPE", "start_char": 28443, "end_char": 28454, "source": "ner", "metadata": {"in_sentence": "Governor to extend mutatis mutandis all or any of the provisions contained in the other sections of the Act to the Jaintia Hills, the Naga Hills and to such portions of the Khasi Hills as for the time being formed parts of British India."}}, {"text": "Khasi", "label": "GPE", "start_char": 28538, "end_char": 28543, "source": "ner", "metadata": {"in_sentence": "The Act was also extended to Khasi and Jaintia Hills and the authority of the Governor-General to enact the Act and of the Lt ."}}, {"text": "L. R. 5 I.A. 178", "label": "CASE_CITATION", "start_char": 28746, "end_char": 28762, "source": "regex", "metadata": {}}, {"text": "October 14, 1871", "label": "DATE", "start_char": 28808, "end_char": 28824, "source": "ner", "metadata": {"in_sentence": "On October 14, 1871 acting under s. 9 of the Act of 1869 the Lt."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 28838, "end_char": 28842, "source": "regex", "metadata": {"statute": null}}, {"text": "Commissioner\n\nSUPREME COURT RBPORTS\n\n(1966) 3 S.C.R.", "label": "JUDGE", "start_char": 29076, "end_char": 29128, "source": "ner", "metadata": {"in_sentence": "The Commissioner\n\nSUPREME COURT RBPORTS\n\n(1966) 3 S.C.R.\n\nwas to exercise the powers of the High Court in Civil and Criminal cases triable in the Courts of the said districts but no sentence of death was to be carried out without the sanction of the Lt."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 29843, "end_char": 29847, "source": "regex", "metadata": {"statute": null}}, {"text": "Naga Hills Agency", "label": "ORG", "start_char": 29923, "end_char": 29940, "source": "ner", "metadata": {"in_sentence": "Governor made under s. 5 of the Act of 1869, in application to the Naga Hills (which he renamed the Naga Hills Agency) Rules for the Administration of Justice and Police in the Naga Hills Agency."}}, {"text": "August 7,\n\n1872", "label": "DATE", "start_char": 30055, "end_char": 30070, "source": "ner", "metadata": {"in_sentence": "These rules were first published on August 7,\n\n1872 and may be called, for brevity, the Rules of 1872."}}, {"text": "Part II provided for police and consisted of Rules", "label": "STATUTE", "start_char": 30600, "end_char": 30650, "source": "regex", "metadata": {}}, {"text": "First Class as laid down in the Criminal Procedure Code", "label": "STATUTE", "start_char": 31544, "end_char": 31599, "source": "regex", "metadata": {}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 32460, "end_char": 32486, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "February 6, 1874", "label": "DATE", "start_char": 33532, "end_char": 33548, "source": "ner", "metadata": {"in_sentence": "On February 6, 1874 there was formation of the Chief Commissionership in Assam."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 33669, "end_char": 33673, "source": "regex", "metadata": {"statute": null}}, {"text": "Bengal", "label": "GPE", "start_char": 33830, "end_char": 33836, "source": "ner", "metadata": {"in_sentence": "Governor of Bengal including the Naga Hills."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 33947, "end_char": 33951, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 34425, "end_char": 34429, "source": "regex", "metadata": {"statute": null}}, {"text": "16th of April, 1874", "label": "DATE", "start_char": 34579, "end_char": 34598, "source": "ner", "metadata": {"in_sentence": "On 16th of April, 1874 the Governor-General in Council by notification delegated to the Chief Commissioner of Assam powers which Ml2SupCl/66-8\n\nI /\n\n842 SUPlll!MJ!"}}, {"text": "June 13, 1874", "label": "DATE", "start_char": 34855, "end_char": 34868, "source": "ner", "metadata": {"in_sentence": "On June 13, 1874 the Governor-General in Council\n\nmade alterations in the Rules of 1872 but only to make them accord with the political changes and republished them for general information."}}, {"text": "shall refer to these Rules as the Rules", "label": "STATUTE", "start_char": 35279, "end_char": 35318, "source": "regex", "metadata": {}}, {"text": "This Act remained on the statute book till the Government of India Act, 1935", "label": "STATUTE", "start_char": 35789, "end_char": 35865, "source": "regex", "metadata": {}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 36095, "end_char": 36109, "source": "regex", "metadata": {"linked_statute_text": "This Act remained on the statute book till the Government of India Act, 1935", "statute": "This Act remained on the statute book till the Government of India Act, 1935"}}, {"text": "section 1", "label": "PROVISION", "start_char": 36255, "end_char": 36264, "source": "regex", "metadata": {"linked_statute_text": "This Act remained on the statute book till the Government of India Act, 1935", "statute": "This Act remained on the statute book till the Government of India Act, 1935"}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 36325, "end_char": 36340, "source": "regex", "metadata": {"linked_statute_text": "This Act remained on the statute book till the Government of India Act, 1935", "statute": "This Act remained on the statute book till the Government of India Act, 1935"}}, {"text": "sections 3 and 4", "label": "PROVISION", "start_char": 36345, "end_char": 36361, "source": "regex", "metadata": {"linked_statute_text": "This Act remained on the statute book till the Government of India Act, 1935", "statute": "This Act remained on the statute book till the Government of India Act, 1935"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 36767, "end_char": 36771, "source": "regex", "metadata": {"linked_statute_text": "This Act remained on the statute book till the Government of India Act, 1935", "statute": "This Act remained on the statute book till the Government of India Act, 1935"}}, {"text": "Sections 6 and 7", "label": "PROVISION", "start_char": 36939, "end_char": 36955, "source": "regex", "metadata": {"linked_statute_text": "Government with the previous sanction of the Governor-General in Council was enabled to extend to the Scheduled Districts any Act", "statute": "Government with the previous sanction of the Governor-General in Council was enabled to extend to the Scheduled Districts any Act"}}, {"text": "Continuance of existing rules and officers.", "label": "RESPONDENT", "start_char": 37832, "end_char": 37875, 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"ner", "metadata": {"in_sentence": "2832 dated the 1st September, 1905 the Governor-General, with the sanction of His Majesty, comtituted the Province of Assam (to which were added certain districta\n\nA • -."}}, {"text": "Eastern Bengal", "label": "GPE", "start_char": 39741, "end_char": 39755, "source": "ner", "metadata": {"in_sentence": "Eastern Bengal was reunited with West Bengal and Assam once again became a separate Province with a Chief Commissioner."}}, {"text": "West Bengal", "label": "GPE", "start_char": 39774, "end_char": 39785, "source": "ner", "metadata": {"in_sentence": "Eastern Bengal was reunited with West Bengal and Assam once again became a separate Province with a Chief Commissioner."}}, {"text": "April 1, 1912", "label": "DATE", "start_char": 39894, "end_char": 39907, "source": "ner", "metadata": {"in_sentence": "This new scheme took effect from April 1, 1912."}}, {"text": "13-10-1914", "label": "DATE", "start_char": 39967, "end_char": 39977, "source": "ner", "metadata": {"in_sentence": "5467P and 5459P dated 13-10-1914), which were issued under Regulation 2 of 1818, all enactments in force in the Western, Central, North East and Eastern Tracts were to cease to be in force and under s. 5 of the Scheduled Districts Act, 1874, the Indian Penal Code, the Indian Police Act, the Indian Arms Act, the Assam Land Revenue Regulation, the Assam Forest Regulation and the Whipping Act were extended by the Chief Commissioner with the previous sanction of the Governor-General in Council."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 40144, "end_char": 40148, "source": "regex", "metadata": {"statute": null}}, {"text": "Scheduled Districts Act, 1874", "label": "STATUTE", "start_char": 40156, "end_char": 40185, "source": "regex", "metadata": {}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 40191, "end_char": 40208, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Police Act", 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{}}, {"text": "first day of April, 1937", "label": "DATE", "start_char": 44224, "end_char": 44248, "source": "ner", "metadata": {"in_sentence": "In 1937 by the Adaptation of Laws Order the Scheduled Districts Act was repealed but there was a special saving which read as follows:-\n\n\"This Act shall cease to have effect, without prejudice to the continuing validity of any notification, appointment, regulation, direction or determination made thereunder and in force immediately before the commencement of Part III of the Government of India Act, 1935 :\n\nProvided that, where immediately before the first day of April, 1937, any enactment is, by virtue of any notification made under this Act, in force in any area in British India, either with or without restrictions or modifications, the Central Government, in relation to matters enumerated in List I of the Seventh Schedule to the Government of India Act, 1935, and the Provincial Government, in relation to other matters, may, within six 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"North East Frontier Agency", "label": "ORG", "start_char": 46723, "end_char": 46749, "source": "ner", "metadata": {"in_sentence": "In other words, the laws in the North East Frontier Agency became completely uniform except in one respect, namely, the continued enforcement of the Undesirable Persons Regulation referred to above in Tuensang Division."}}, {"text": "Tuensang", "label": "GPE", "start_char": 47042, "end_char": 47050, "source": "ner", "metadata": {"in_sentence": "As the Criminal Procedure Code was never in force in any part of the North East Frontier Agency it did not come into force in the Tuensang Area."}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 47436, "end_char": 47450, "source": "regex", "metadata": {"statute": null}}, {"text": "Scheduled Districts Act, 1874", "label": "STATUTE", "start_char": 47795, "end_char": 47824, "source": "regex", "metadata": {}}, {"text": "After the passing of the Government of India Act, 1935", "label": "STATUTE", 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Independence Act, 1947", "statute": "the Indian Independence Act, 1947"}}, {"text": "Chief Commissioners and the Governor who have in turns made Rules", "label": "STATUTE", "start_char": 48882, "end_char": 48947, "source": "regex", "metadata": {}}, {"text": "ss. 6 and 7", "label": "PROVISION", "start_char": 49100, "end_char": 49111, "source": "regex", "metadata": {"linked_statute_text": "Chief Commissioners and the Governor who have in turns made Rules", "statute": "Chief Commissioners and the Governor who have in turns made Rules"}}, {"text": "ss. 6 and 7", "label": "PROVISION", "start_char": 49353, "end_char": 49364, "source": "regex", "metadata": {"linked_statute_text": "Chief Commissioners and the Governor who have in turns made Rules", "statute": "Chief Commissioners and the Governor who have in turns made Rules"}}, {"text": "s. 6(a)", "label": "PROVISION", "start_char": 49511, "end_char": 49518, "source": "regex", "metadata": {"linked_statute_text": "Chief Commissioners and the 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"source": "regex", "metadata": {"statute": null}}, {"text": "ss. 6 and 7", "label": "PROVISION", "start_char": 52194, "end_char": 52205, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 6 and 7", "label": "PROVISION", "start_char": 52958, "end_char": 52969, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 55120, "end_char": 55124, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 55344, "end_char": 55348, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 55659, "end_char": 55663, "source": "regex", "metadata": {"statute": null}}, {"text": "Bengal Assam Laws Act 1905", "label": "STATUTE", "start_char": 56733, "end_char": 56759, "source": "regex", "metadata": {}}, {"text": "power could be exercised by the Governor under the Scheduled Districts Act", "label": "STATUTE", "start_char": 57074, "end_char": 57148, "source": "regex", "metadata": {}}, {"text": "ss. 6 and 7", "label": "PROVISION", "start_char": 57149, "end_char": 57160, "source": "regex", "metadata": {"linked_statute_text": "But the power could be exercised by the Governor under the Scheduled Districts Act", "statute": "But the power could be exercised by the Governor under the Scheduled Districts Act"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 57413, "end_char": 57417, "source": "regex", "metadata": {"linked_statute_text": "But the power could be exercised by the Governor under the Scheduled Districts Act", "statute": "But the power could be exercised by the Governor under the Scheduled Districts Act"}}, {"text": "Arts. 21", "label": "PROVISION", "start_char": 57766, "end_char": 57774, "source": "regex", "metadata": {"linked_statute_text": "But the power could be exercised by the Governor under the Scheduled Districts Act", "statute": "But the power could be exercised by the Governor under the Scheduled Districts 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"gazetteer_score": 1.0}}, {"text": "State of Nagaland Act", "label": "STATUTE", "start_char": 66049, "end_char": 66070, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "State of Nagaland Act", "label": "STATUTE", "start_char": 66508, "end_char": 66529, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1966_3_856_862_EN", "year": 1966, "text": "MjS. RAM CHAND AND so:-; s St:GAR MILLS PVT. LTD.\n\nKANHAYA LAI. llHARGAVA & ORS .\n\n. \\larch 10. 1966\n\n[K. SCBl!A RAO A!'D V. RA\\tASWA.,11, JJ.j\n\nCode of Civil Procedure (Act 5 of 1908), s. 151 and O.XXIX r. 3l)irector of Company summoned to answer material quertions--Company\n\nwhen responsible for his non-appearance-Inherent powers of court to prevent abuse of process of court-Scope of.\n\n'!he first respondent filed a suit against the appellant company and C one R for recovery of a sum of money. The coun acting under OXXIX r. 3 of the Code of Civil Procedure dirc-ctcd J one of the directors of the company to appear before it and answer certain material questions in relation to the suit and when he did not appear the appellant waa directed to produce him, with the same result.\n\nThe Coun after gi•ing notice to the appellant struck off ils defence in purported exercise of its inherent powers under s. 151 of the Code. The High Court dismissed the appellant's re, ision petition whereupon it appealed to this coun by special leave.\n\nIt was contended on behalf of the appellant that inherent power could not be invoked in the circumstances of the case.\n\nHELD : ( i) Whatever limitations are impooed by construction on tho provi•ions of s. 151 of the Code. they do not control the ullAloobte<l power of the court conferred under s. 151 of the Code to make a suitable order to prevent the abuse of the process of the Court. (860)\n\nPadam Sen v. Stare of VIiar Pradesh, [1961] I S.C.R. 884, MQJtOhltr Lal Chopra v. Rai Bahadur Ron Raja Ser/a !lira/al, (1962) Supp. I S.C.R. 450 and Arjun Singh v. Moliindra Kumar, (1964) 5 S.C.R. 946, applied.\n\n(ii) There is nothing in O.XXIX of the Code which expr..,.ly or by neca<sary implication, precludes the exerci,., of the inherent power of tho Coon under s. 151 of the Code. In a case of default made by a director\n\nwho failed to appear in conn when he was \"° required under the afor\"'3id rule, tho conn can make a suitable con.sequential order under ' 151 of the Code as may be necessary for the ends of justice or lo prevent the\n\nabu\"\" of the process of the Coon. [861 EJ\n\n(iij) 'Any director' in O.XXIX r. 3 need not be the same director who has signed and verified a pleading or on whom summons had been served.\n\nHe can be any one of the directors who will be in a position to G answer malorial questions relating to the suit. (861 A-BJ\n\n(iv) In the prc<cnt case the coon was justified in &triking off tho defence of the appellant company.\n\nUnless there was a finding of collusion between the appellant and the director in that the former prevented the latter from appearing in court it was difficlt to make the company constructively liable for the default of one of its directo\"- A director'a act.s outside the scope of his powers could not bind the company and it wa• nor possible to hold that the director in refus:ng to respond to the notice given by the court was acting within the scope of the power9 conferred on him. [861H-862 DJ\n\n.. ~\n\n,,.,\n\n\\ J\n\n-' ' .\n\niP' •\n\n. r\n\n' t\n\nCIVIL APPELLATE JURISD!Cl!ON : Civil Appeal No. 166 of 1966.\n\nAppeal by special leave from the order dated August 27, 1965 of the Punjab High Court (Circuit Bench) at Delhi in Civil Revision No. 289-D of 1965.\n\nS. N. And/ey, Rames/mar Nath, Mahinder Narain, for the appellants.\n\nA. K. Sen. B. Sen, B. P. .Maheshwari, P. D. B!wrgava and M. S. Narasimhan, for the respondents .\n\nThe. Judgment of the Court was delivered by\n\nSobba Rao. J.-This appeal by special leave is directed against the order of the Punjab High Court confirming that of the Subordinate Judge, Delhi, striking out the defence of the appellant under s. 151 of the Code of civil Procedure, hereinafter called the Code.\n\nKanhaya Lal Bhargava, the 1st respondent, filed a suit on April 27, 1962, in the Court of the Subordinate Judge, First Class, D Delhi, against Messrs. Ram Chand & Sons Sugar Mills Private Limited, the appellant, and one Ram Sarup for the recovery of a sum of Rs. 45,112.94.\n\nPending the suit, on October 27, 1964, the !st respondent filed an application in the said court under O.Xl, r. 21, of the Code, read with O.XXIX, r. 3, thereof, for striking off the defence or in the alternative for directing Jugal Kishore, a E director of the Appellant-company, to appear in court on December 14, 1964. On December 3, 1964, the court made an order therein directing the said Jugal Kishore to be present in court on December 14, 1964, to answer material questions relating to the suit. The appellant took a number of adjournments to produce the said Jugal Kishore on the ground that the latter was ill. On February 3, 1965, the court gave the appellant a final opportunity to produce F the said Jugal Kishore. Even so, the appellant took two more adjournments to produce him, but did not do so on the ground that he was ill. Finally on February 25, 1965, the court issued a notice to the I st defendant, appellant herein, to show cause why his defence should not be struck off. On March 16, 1965, after hearing the arguments the court held that J ugal Kish ore had failed G to comply with the orders of the court and was persistent in his default in spite of chances given to him; and on that finding, it struck off the defence of the appellant. The High Court, on revision, held that Jugal Kishore did not appear in court in spite of orders to that effect and that the learned Subordinate Judge had jurisdiction to strike out the defence of the appellant. It further H negatived the contention of the appellant that it was not in it' power to compel Jugal Kishore to appear in court on the ground that he was the director of the company and was under its control and, therefore, the appellant-company could not be heard to say M12Sup. CI/66 ·- 9\n\n858 SUPRl!MI! COUIT REPORTS\n\n[1966] 3 S.C.R.\n\nthat one of the directors did not obey the orders of the court. Hence A the present appeal.\n\nThe argument of Mr. S, N. Andley, learned counsel for the appellant, may te briefly stated thus: The Code of Civil Procedure provides express powct' for a court to strike out defence against a party under specified circumstances and, therefore, s. 151 thereof cannot be invoked to strike out the defence in other circumstances. for to do so will be to override the provisions of the Code. Order XXIX, r.3, of the Code does not empower the court to require the presonal appearance of a director other than a director who signed and verified the pleading within the meaning of O.XXIX, r. I, thereof.\n\nMr. Sen, learned counsel for the respondent, on the other hand, contended that the court had ample jurisdiction to strike out the defence of a party if he was guilty of abuse of the process of the eourt. In the instant case, he contended Jugal Kishore, one of the permanent directors of the appellant-company had adopted a recalcitrant attitude in defying the orders of the court to be present for interrogation and, therefore, the Subordinate Judge rightly, after giving ewry opportunity for him to be present, struck off the appellant's defence.\n\nSection 151 of the Code reads:\n\n\"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such E orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.\"\n\nThe words of the section appear to be rather wide. But the decisions of this Court, by construction, limited the scope of the said section.\n\nIn Padam Sen v. The State of Vilar Pradesh (1) the question raised was whether a M unsif had inherent powers under s. 151 of the Code to appoint a commissioner to seize account books. This C, ourt held that he had no such power.\n\nRaghubar Dayal, J., speaking for the Court, observed:\n\n\"The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in s. 151 of the Code when the exercise of these powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will he contrary to or\n\n(I) {t961J I S.C.R BS4, ES7.\n\n1 .\n\n' .\n\ndifferent from the procedure expressly provided in the Code\".\n\nThis Court again in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hira/a/(') considered the question whether a court had inherent power under s. 151 of the Code to issue a temporary injunction restraining a party from proceeding with a suit in another\n\nState. In that context, Raghubar Dayal, J., after quoting the passage cited above from his earlier judgment, interpreted the said observations thus:\n\n\"These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in s. 151 itself.\n\nBut those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposei, on the exercise of these powers is not because these powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justice.\"\n\nThis Court again in Arjun Singh v. Mahindra Kwnar(Z) considered the scope of s. 151 of the Code. One of the questions raised was whether an order made by a court under a situation to which O. IX, r. 7, of the Code did not apply, could be treated as one made under s. 151 of the Code. Rajagopala Ayyangar, J., made the following observations:\n\n\"It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words, ifthere are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be expressed but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates.\" Having regard to the said decisions, the scope of the inherent power of a court under s. !SI of the Code may be defined thus: The inherent power of a court is in addition to and complementary H to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comeo\n\n(I} [1962] Supp.\n\nI S.C.R. 450, 461.\n\n\nRAMCHAND MILLS V. K. L, BHARGAVA (S11bba Rao, J.) 861\n\nA If so, there is no reason why the director who may be able to answer such material questions is excluded from the scope of r. 3. Such an interpretation will defeat the purpose of the said rule. Therefore, \"any director\" in r. 3 need not be the same director who has signed and verified a pleading or on whom summons has been served.\n\nHe can be any one of the directors who will be in a postition to B answer material questions relating to the suit.\n\nEven so, learned counsel for the appellant contended that O.XXIX, r. 3, of the Code did not provide for any penalty in case the director required to appear in court failed to do so. By drawing an analogy from other provisions where a particular default carried a definite penalty, it was argued that in the absence of any such provision it must be held that the Legislature intentionally had not provided for any penalty for the said default. In this context the learned counsel had taken us through O.IX, r. 12, 0. X, r. 4, 0.XI, 21, O.XVI, r. 20, and 0. XVIII, rr. 2 and 3 of the Code. No doubt under these provisions particular penalties have been provided for specific defaults. For certain defaults, the relevant Orders provide for making an ex partc decree or for striking out the defence. But it does not follow from these provisions that because no such consequential provision is found in O.XXIX, the court is helpless against a recalcitrant plaintiff or defendant who happens to be a company. There is nothing m O.X, XIX of the Code. which, expressly or by necessary implication, precludes the exercise of the inherent power of the court under s. 151 of the Code. We are, therefore, of the opinion that in a case of default made by a director who failed to appear in court when he was so required under O.XXIX, r. 3, of the Code, the court can make a suitable conse-- quential order under s. 151 of the Code as may be necessary for the ends of justice or to prevent abuse of the process of the court.\n\nThe next question is whether the court can, as it did in the present case, strike off the defence of the appellant for the default made by its director to appear in court. Learned counsel for the respondent contended that both the courts in effect found that the director was guilty of a recalcitrant attitude and that he had abused the process of the court and, therefore, the Subordinate Judge had rightly exercised his inherent power in striking off the defence of the appellant, We are satisfied, as the courts below were, that Jugal Kishore, the director of the appellant-company, purposely for one reason or other, defied the orders of the court on the pretext of illness and had certainly abused the process of the court.\n\nThe learned Subordinate Judge would have been well within his rights to take suitable action against him, but neither of the courts found that the appellant was responsible or instrumental for the director not attending the court. Unless there is a finding of collusion between the appellant and the director in that the former\n\nSUPREME COURT REPORTS\n\n\nprevented the latter from appearing in court, we find it difficult to make the company constructively liable for the default of one of its directors. Many situations may be visualized when one of the directors may not obey the directions of the company or its hoard of directors or may be even working against its interests.\n\nIt cannot be disputed that a company and the directors of the company are different legal personalities. The company derives its rowers from the memorandum of association.\n\nSome of the powers are delegated to the directors. 1-'or certain purposes they are said to be trustees and for some others to he the agents or managers of the company.\n\nIt is not necessary in this case to define the exact relationship of a director qua the company. The acts of the directors within the powers conferred on them may be binding on the company.\n\nBut their acts outside the said powers will not bind the company. It is not possible to hold that the director in refusing to respond to the notice given by the court was acting within the scope of the powers conferred on him.\n\nHe is only liable for his acts and not the company.\n\nIf it was established that the company was guilty of abuse of the process of the court by preventing the director from attending the court, the court would have been justified in striking off the defonce.\n\nBut no such finding was given by the courts below.\n\nThe orders of the courts below arc not correct. We set aside the said orders and direct the Subordinate Judge to proceed with the suit in accordance with law.\n\nThe appeal is~ allowed, hut. in the circumstances of the case. without costs.\n\nAppeal a/1011 \"\"", "total_entities": 49, "entities": [{"text": "MjS. RAM CHAND AND so:-; s St:GAR MILLS PVT. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "M/S. RAM CHAND AND SONS SUGAR MILLS PVT. LTD", "offset_not_found": false}}, {"text": "KANHAYA LAI. llHARGAVA & ORS", "label": "RESPONDENT", "start_char": 51, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "KANHAYA LAI. llHARGAVA & ORS", "offset_not_found": false}}, {"text": "K. SCBl!A RAO", "label": "JUDGE", "start_char": 103, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 145, "end_char": 168, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 151", "label": "PROVISION", "start_char": 186, "end_char": 192, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 535, "end_char": 562, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 151", "label": "PROVISION", "start_char": 906, "end_char": 912, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 151", "label": "PROVISION", "start_char": 1242, "end_char": 1248, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 151", "label": "PROVISION", "start_char": 1334, "end_char": 1340, "source": "regex", "metadata": {"statute": null}}, {"text": "(1964) 5 S.C.R. 946", "label": "CASE_CITATION", "start_char": 1616, "end_char": 1635, "source": "regex", "metadata": {}}, {"text": "s. 151", "label": "PROVISION", "start_char": 1801, "end_char": 1807, "source": "regex", "metadata": {"statute": null}}, {"text": "S. N.", "label": "LAWYER", "start_char": 3243, "end_char": 3248, "source": "ner", "metadata": {"in_sentence": "S. N. And/ey, Rames/mar Nath, Mahinder Narain, for the appellants."}}, {"text": "Rames/mar Nath", "label": "LAWYER", "start_char": 3257, "end_char": 3271, "source": "ner", "metadata": {"in_sentence": "S. N. And/ey, Rames/mar Nath, Mahinder Narain, for the appellants."}}, {"text": "Mahinder Narain", "label": "LAWYER", "start_char": 3273, "end_char": 3288, "source": "ner", "metadata": {"in_sentence": "S. N. And/ey, Rames/mar Nath, Mahinder Narain, for the appellants."}}, {"text": "A. K. Sen. B. Sen", "label": "LAWYER", "start_char": 3311, "end_char": 3328, "source": "ner", "metadata": {"in_sentence": "A. K. Sen. B. Sen, B. P. .Maheshwari, P. D. B!wrgava and M. S. Narasimhan, for the respondents ."}}, {"text": "B. P. .Maheshwari", "label": "LAWYER", "start_char": 3330, "end_char": 3347, "source": "ner", "metadata": {"in_sentence": "A. K. Sen. B. Sen, B. P. .Maheshwari, P. D. B!wrgava and M. S. Narasimhan, for the respondents ."}}, {"text": "P. D. B!wrgava", "label": "LAWYER", "start_char": 3349, "end_char": 3363, "source": "ner", "metadata": {"in_sentence": "A. K. Sen. B. Sen, B. P. .Maheshwari, P. D. B!wrgava and M. S. Narasimhan, for the respondents ."}}, {"text": "M. S. Narasimhan", "label": "LAWYER", "start_char": 3368, "end_char": 3384, "source": "ner", "metadata": {"in_sentence": "A. K. Sen. B. Sen, B. P. .Maheshwari, P. D. B!wrgava and M. S. Narasimhan, for the respondents ."}}, {"text": "Sobba Rao", "label": "JUDGE", "start_char": 3454, "end_char": 3463, "source": "ner", "metadata": {"in_sentence": "Judgment of the Court was delivered by\n\nSobba Rao."}}, {"text": "Subordinate Judge, Delhi", "label": "COURT", "start_char": 3575, "end_char": 3599, "source": "ner", "metadata": {"in_sentence": "J.-This appeal by special leave is directed against the order of the Punjab High Court confirming that of the Subordinate Judge, Delhi, striking out the defence of the appellant under s. 151 of the Code of civil Procedure, hereinafter called the Code."}}, {"text": "s. 151", "label": "PROVISION", "start_char": 3649, "end_char": 3655, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of civil Procedure", "label": "STATUTE", "start_char": 3659, "end_char": 3686, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Kanhaya Lal Bhargava", "label": "PETITIONER", "start_char": 3718, "end_char": 3738, "source": "ner", "metadata": {"in_sentence": "Kanhaya Lal Bhargava, the 1st respondent, filed a suit on April 27, 1962, in the Court of the Subordinate Judge, First Class, D Delhi, against Messrs. Ram Chand & Sons Sugar Mills Private Limited, the appellant, and one Ram Sarup for the recovery of a sum of Rs.", "canonical_name": "KANHAYA LAI. llHARGAVA & ORS"}}, {"text": "Subordinate Judge, First Class, D Delhi", "label": "COURT", "start_char": 3812, "end_char": 3851, "source": "ner", "metadata": {"in_sentence": "Kanhaya Lal Bhargava, the 1st respondent, filed a suit on April 27, 1962, in the Court of the Subordinate Judge, First Class, D Delhi, against Messrs. Ram Chand & Sons Sugar Mills Private Limited, the appellant, and one Ram Sarup for the recovery of a sum of Rs."}}, {"text": "Ram Chand & Sons Sugar Mills Private Limited", "label": "RESPONDENT", "start_char": 3869, "end_char": 3913, "source": "ner", "metadata": {"in_sentence": "Kanhaya Lal Bhargava, the 1st respondent, filed a suit on April 27, 1962, in the Court of the Subordinate Judge, First Class, D Delhi, against Messrs. Ram Chand & Sons Sugar Mills Private Limited, the appellant, and one Ram Sarup for the recovery of a sum of Rs."}}, {"text": "Ram Sarup", "label": "OTHER_PERSON", "start_char": 3938, "end_char": 3947, "source": "ner", "metadata": {"in_sentence": "Kanhaya Lal Bhargava, the 1st respondent, filed a suit on April 27, 1962, in the Court of the Subordinate Judge, First Class, D Delhi, against Messrs. Ram Chand & Sons Sugar Mills Private Limited, the appellant, and one Ram Sarup for the recovery of a sum of Rs."}}, {"text": "Jugal Kishore", "label": "OTHER_PERSON", "start_char": 4220, "end_char": 4233, "source": "ner", "metadata": {"in_sentence": "st respondent filed an application in the said court under O.Xl, r. 21, of the Code, read with O.XXIX, r. 3, thereof, for striking off the defence or in the alternative for directing Jugal Kishore, a E director of the Appellant-company, to appear in court on December 14, 1964."}}, {"text": "December 3, 1964", "label": "DATE", "start_char": 4318, "end_char": 4334, "source": "ner", "metadata": {"in_sentence": "On December 3, 1964, the court made an order therein directing the said Jugal Kishore to be present in court on December 14, 1964, to answer material questions relating to the suit."}}, {"text": "December 14, 1964", "label": "DATE", "start_char": 4427, "end_char": 4444, "source": "ner", "metadata": {"in_sentence": "On December 3, 1964, the court made an order therein directing the said Jugal Kishore to be present in court on December 14, 1964, to answer material questions relating to the suit."}}, {"text": "February 3, 1965", "label": "DATE", "start_char": 4617, "end_char": 4633, "source": "ner", "metadata": {"in_sentence": "On February 3, 1965, the court gave the appellant a final opportunity to produce F the said Jugal Kishore."}}, {"text": "February 25, 1965", "label": "DATE", "start_char": 4847, "end_char": 4864, "source": "ner", "metadata": {"in_sentence": "Finally on February 25, 1965, the court issued a notice to the I st defendant, appellant herein, to show cause why his defence should not be struck off."}}, {"text": "March 16, 1965", "label": "DATE", "start_char": 4992, "end_char": 5006, "source": "ner", "metadata": {"in_sentence": "On March 16, 1965, after hearing the arguments the court held that J ugal Kish ore had failed G to comply with the orders of the court and was persistent in his default in spite of chances given to him; and on that finding, it struck off the defence of the appellant."}}, {"text": "J ugal Kish", "label": "OTHER_PERSON", "start_char": 5056, "end_char": 5067, "source": "ner", "metadata": {"in_sentence": "On March 16, 1965, after hearing the arguments the court held that J ugal Kish ore had failed G to comply with the orders of the court and was persistent in his default in spite of chances given to him; and on that finding, it struck off the defence of the appellant."}}, {"text": "S, N. Andley", "label": "OTHER_PERSON", "start_char": 5918, "end_char": 5930, "source": "ner", "metadata": {"in_sentence": "The argument of Mr. S, N. Andley, learned counsel for the appellant, may te briefly stated thus: The Code of Civil Procedure provides express powct' for a court to strike out defence against a party under specified circumstances and, therefore, s. 151 thereof cannot be invoked to strike out the defence in other circumstances."}}, {"text": "The Code of Civil Procedure", "label": "STATUTE", "start_char": 5995, "end_char": 6022, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 151", "label": "PROVISION", "start_char": 6143, "end_char": 6149, "source": "regex", "metadata": {"statute": null}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 6501, "end_char": 6504, "source": "ner", "metadata": {"in_sentence": "Mr. Sen, learned counsel for the respondent, on the other hand, contended that the court had ample jurisdiction to strike out the defence of a party if he was guilty of abuse of the process of the eourt."}}, {"text": "Section 151", "label": "PROVISION", "start_char": 7046, "end_char": 7057, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 151", "label": "PROVISION", "start_char": 7550, "end_char": 7556, "source": "regex", "metadata": {"statute": null}}, {"text": "Raghubar Dayal", "label": "JUDGE", "start_char": 7665, "end_char": 7679, "source": "ner", "metadata": {"in_sentence": "Raghubar Dayal, J., speaking for the Court, observed:\n\n\"The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code."}}, {"text": "s. 151", "label": "PROVISION", "start_char": 7972, "end_char": 7978, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 151", "label": "PROVISION", "start_char": 8514, "end_char": 8520, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 151", "label": "PROVISION", "start_char": 8928, "end_char": 8934, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 151", "label": "PROVISION", "start_char": 9517, "end_char": 9523, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 151", "label": "PROVISION", "start_char": 9704, "end_char": 9710, "source": "regex", "metadata": {"statute": null}}, {"text": "Rajagopala Ayyangar", "label": "JUDGE", "start_char": 9724, "end_char": 9743, "source": "ner", "metadata": {"in_sentence": "Rajagopala Ayyangar, J., made the following observations:\n\n\"It is common ground that the inherent power of the Court cannot override the express provisions of the law."}}, {"text": "S11", "label": "PROVISION", "start_char": 10851, "end_char": 10854, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 151", "label": "PROVISION", "start_char": 12478, "end_char": 12484, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 151", "label": "PROVISION", "start_char": 12723, "end_char": 12729, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_863_867_EN", "year": 1966, "text": "SUNDER SINGH AND ORS.\n\nNARAIN SINGH AND_ ORS,\n\nMarch 11, 1966\n\n[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO, M. HIDAYA-\n\nTULLAH, J. C. SHAH AND S. M. S!KRI, JJ.]\n\nPatiala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act 5 of 2007 BK, ss. 24 and 25-Land sought to be pre-empted exchanged for other land in consolidation proceedings-pre., emptor's right to follow the land to which his right attaches.\n\nThe appellants purchased certain lands in the State of Punjab and the respondents filed a suit claim:ng a right of pre-emption . thereon.\n\nUnder a scheme of consolidation, however, the appellants had before the filing of the suit, been. allotted some other lands in lieu of the land• purchased by them, and they contended that the right of pre-emption claimed by the respondents did not extend to these lands.\n\nThe trial court and the High Court decreed the respondents' suit holding on the basis of s. 24 of the Pat\"ala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act 5 of 2007 BK thi.I it was open to pre-emptor to fOilow the land which had been given to the vendees in consolidation proceedings in lieu of the land which was the subject matter of the sale-deed.\n\nThe appellants came to this Court by special leave.\n\nHELD : Section 24 when it says that the landowner or the tcnint at will shall have the same right in the land allotted to him as he bad\n\nin his original holding or tenancy clearly preserves the obligation that 111ay be on the land in the nature of a disab:Jity.\n\nThe consequence therefore is that the ordinary law of pre-emption under which the pre-emptor has the. right to follow the land which is the subject-matter of the sale-dttd becomes expanded and the land allotted to the landlord and tenant at will in lieu of the land which may have been subject to pre-emption alllo becomes subject to pre-emption in tho same way as the original hold ing or the tenancy.\n\nThis inference is not negatived by the special pro visions of s. 25 in respect of leases and mortgages or other encumbruees.\n\n[866 G; 867 D-E]\n\nShrl Audh Behari Singh v. Gaiadhar Jaipur/a, [1955] 1 S.C.R. 70, Blshan Singh v. KhaWt Singh, [1959) S.C.R. 878 relied on.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 822of1963\n\nG Appeal by special leave from the judgment and decree dated April, 7, 1961 of the Punjab High Court in Regular First Appeal No. 32 of 1957.\n\n, ..\n\nBishan Narain and B. P. Maheshwari, for the appellants Nos.1-3 and 5-10.\n\nH M. V. Goswami, for appellant No. 4.\n\nBhawani Lal, E .C. Agarwala, Ganpat Rai and P.C. Agarwa/a. for respondent Nos. l(i)-l(vi).\n\n864 SUPREME couRT REPORTS fl 966] 3 S.l'R\n\nThe Judgment of the Court was delivered by\n\nWanchoo, J ... This is an appeal by special lea'e fr<>m the decree of the Punjab High Court in a suit brought by the plaintiffs-respondents for pre-emption. The appellants arc vcndces to the sale which was pre-empted. The facts found by the courts below arc these. The property in suit consisted of agricultural land as well as some haras in village Jalalpur.\n\nPunnu Singh and Mansha Singh who were also parties to the suit as defendants sold lhc property in suit on January 15.1955 to the appellanls. Thereafter consolidation proceedings took place in this village and came to an end before the present suit was filed on January 14, 1956.\n\nOf the vcndees, six had no share in the village from before while four already had some share in the village.\n\nAs a result of the consolidation proceedings. six of the vcndecs who had no share in the viUage from before were allotted other land in place of the land which they had purchased under the sale-deed. The other four vendecs \"'ho had some share in the village from before were allotted land in two blocks in lieu of the land they had in the village from before as well as the land which they had purchased by the sale deed in question. The plaintiffs-respondents instituted the suit on the basis of their being collaterals and co-sharers and wanted that they should be given out of the land allotted to the vendces in consolidation proceedings such land as they would be entitled to after pre-emption of the sale in question.\n\nThe suit was rc, isted by the appellants on a numher of ground,.\n\nThe main gr\\lund of defence with which we arc concerned in the\n\npresent appeal was whether the suit was maintainable with rcspc't:t to the land which had been obtained by the vendees during consolidation proceedings in lieu of the land which was the subject matter of the sale deed.\n\nThe trial court hdd in favour of the plaintiffs-respondents and granted a decree for pre-emption. On appeal to the High Court by the vendees, the High Court held on the basis of s. 24 of the Patiala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act, No. ) of 2007 Bk. (hereinafter referred to as the Act), that it was open to the pre-emptor to follow the land which had been given to the vendees in consolidation proceedings in lieu of the land which was the subject matter of the sale deed.\n\nFurther in the High Court another point was raised on behalf of four of the appelianL' who had land from before in the village and it was urged that in their case it was not possible to distinguish which land had been allotted Lo them in place of the land sold and therefore no pre-emption decree should be granted. This argument was also rejected by the High Court, and the appeal was dismissed. The High Court h:ning refused the certificate. the appellants applied and obtained\n\npccial leave from this Court: and that is how the matter has come\n\nbefore us.\n\nSUND!!~ SINGH v. NA!lAIN SINGH (Wanchoo, J.) 865\n\nThe main question that has been argued before us is that the suit is not maintainable as it is not open to the pre-emptor to follow the land which might have been obtained by the vendees in lieu of the land actually sold to them. The answer to this question depends upon the interpretation of s .. 24 of the Act in the background of the law of pre-emption.\n\nIn Shri Audh Behari Singh\n\nv. Gajadhm Jaipuria,(') this Court held that-\n\n\"The correct legal position seems to be that the law of pre-emption imposes a limitation or disability upon the ownership of a property td the \"extent that it restricts the owner's unfettered right of sale and compels him to sell the property to his co-sharer or neighbour as the case may be ...... The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself. ......... The right of pre-emption is an incident of property and attaches to the land itself. ....... \" This Court had occasion to consider the matter again in Bislwn Singh v. Khazan Singh(2) and pointed out that the right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold, this being the primary or inherent right, and that the pre-emptor has a secondary right or a remedial right to follow the thing sold. Reliance is placed on behalf of the appellants on this later decision and it is stressed that the pre-emptor's remedial right is merely to follow the thing sold, namely, the very property which is the subject-matter of the sale-deed under pre-emption.\n\nThe later decision on which reliance is placed does not in any manner affect the earlier decision where it was held that the right of pre-emption is an incident of property and attaches to the land.\n\nIt is true, as held in the later decision, that ordinarily the right of the pre-emptor is to follow the property which is the subject-matter of the sale deed. The question which, however arises in the present case is whether s.24 of the Act makes any difference to this ordinary position of the law of pre-emption. That section reads as follows:-\n\n\"A land, owner or a tenant at will shall have the same right in the land allotted to him in pursuance of the scheme of consolidation as he had in his original holding or tenancy as the case may be.\" Clearly the effect of this provision is to give to the land-owner or a tenant at will the same right in the land which he acquires under the scheme of consolidation in lieu of that land which he had before the consolidation proceedings. He cannot get more\n\n--(Tf[1955]'1s.c]f 7-0-. -\n\n(2) [1959) S.C.R. 878.\n\nSUPRBME\n\nCOURT\n\nREPORTS\n\n(1966) 3 S.C.R\n\nrights than he had before nor can be get any Jess rights. It is urged that that section only preserves the rights and has nothing to do with obligations to which the land may be subject. We are of opinion that this is not so. When the section lays down that the land-owner or a tenant at will shall have the same right ia the land allotted to him in pursuance of the scheme of consolidation as he had in his original holding or tenancy, it clearly implies that obligations would also remain the same. If that were not so and if his obligations were to disappear he would acquire more right in the land allotted to him than he had in the original holding or tenancy. For example, if the land-owner had only a life interest in the original holding he would get the same life interest in the land allotted to him and could not claim to be absolute owner of the land allotted in consolidation proceedings. Thus the obligation which attached to his ownership of his original holding (namely, that it was subject to all the disabilities of a limited owner) would also apply to the land allotted to him in consolidation proceedings.\n\nTherefore when s. 24 speaks of the landowner or the tanant at will having the same right in the land allotted as he had in the original holding or tenancy, it brings in all tl\".c rights and obligations which were attached to his ownership or tenancy of the land originally held.\n\nIt is in this background that the nature of the right of preemption as held in A11dh Behari Singh's case (1) assumes importance. In that case it was held that the law of pre-emption imposes a limitation or disability upon the ownership of a property and that the benefit as well as the burden of the right of pre-emption run with the land. Therefore if the original holding of the landowner was subject to the disability of pre-emption the land allotted in lieu thereof will be equally subject to the same disability. This will however always be subject to the law of pre-emption itself, and to the well-settled principle of pre-emption, namely, that the pre-emptor must have a right of pre-emption at the date of the sale, at the date of the suit and finally at the date of the decree.\n\nSection 24 when it says that the landowner or the tenant at will shall have the same right in the land allotted to him as he had in his original holding or tenancy. clearly preserves the obligation that may be on the land in the nature of a disability. The consequence therefore is that the ordinary law of pre-emption under wnich the pre-emptor has the right to follow the land which is the subject-matter of the sale deed becomes expanded and the land allotted to the land-owner or tenant at will in lieu of the land which may have been subject to pre-emption also becomes subject to pre-emption in the same way as the original holding or tenancy.\n\nSo it follows that if the land allotted in lieu of the original holding or tenancy is pre-emptible under the law of pre-emption and the right of pre-emption still exists on the three dates to which we have\n\n<f> (1955] 1 s.c.R:1ci. ··· ·-\n\nSUNDER SINGH v. NAMIN SINGH (Wanchoo, I.) 867\n\nalready referred, the pre-emptor would by virtue of s.24 be able to enforce his rights against land which may have been allotted to the vendee in lieu of the land which was actually the subject-matter of sale.\n\nWe are therefore of the opinion that the construction of s. 24 by the High Court is correct and the plaintiffs-respondents have a right by virtue of s. 24 of the Act to pre-empt the land which was allotted to the appellants in lieu of the land which was the subject-matter of the sale-deed.\n\nIt is however urged that s. 25 of the Act specifically provides for rights with respect lo a kase, mortgage or other encumbrance to attach to the land allotted in place of the original holdings, and that shows that no other rights were intended to survive.\n\nWe are of opinion that there is no force in this argument. It was necessary to enacts. 25 when dealing with leases, mortgages and encumbrances for without such a specific provision, a lease, mortgage or encumbrance which was on one piece of land could not in law attach to another piece of land. This however is very different from an incident of ownership of land e.g. liability to pre-emption which attaches to the land itself and continues to attach to the land allotted in lieu of the original holding or tenancy by s. 24. The special provisions therefore in s. 25 do not negative the inference that obligations which attach to the right of owernship of the original holding or tenancy would continue to attach to the land allotted in lieu thereof in consolidation proceedings .\n\nThis brings us to the subsidiary contention which was raised in the High Court, namely, that four of the vendees were allotted land in lieu both of what they owned from before and what they got under the sale deed in question. The High Court has heldand we think rightly-that there should be no difficulty in finding out how much of the land allotted pertains to the land which was the subject-matter of the sale-deed. Land is always valued for purposes of allotment during consolidation proceedings and it would not therefore be difficult to find out how much land was allotted to these four vendees in place of the land which they got by the sale deed.\n\nLastly it is urged that the form of the decree is incorrect. This submission is made on the basis of the following sentences in the judgment of the trial court:\n\n\"It does not mean that the land is not distinguishable.\n\nIt can be considered during execution at the time of delivering the possession of the land.\" We have not permitted learned counsel to raise this point for the first time before us, as it was not raised in the High Court. We therefore reject this contention.\n\nThe appeal fails and is hereby dismissed. Costs as per order dated 8-9-65.\n\nAppeal dismissed.", "total_entities": 36, "entities": [{"text": "SUNDER SINGH AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "SUNDER SINGH AND ORS", "offset_not_found": false}}, {"text": "NARAIN SINGH AND_ ORS", "label": "RESPONDENT", "start_char": 23, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "NARAIN SINGH AND ORS", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 64, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 93, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 131, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "ss. 24 and 25", "label": "PROVISION", "start_char": 274, "end_char": 287, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 941, "end_char": 946, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 24", "label": "PROVISION", "start_char": 1309, "end_char": 1319, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 2031, "end_char": 2036, "source": "regex", "metadata": {"statute": null}}, {"text": "[1955] 1 S.C.R. 70", "label": "CASE_CITATION", "start_char": 2158, "end_char": 2176, "source": "regex", "metadata": {}}, {"text": "Bishan Narain", "label": "LAWYER", "start_char": 2443, "end_char": 2456, "source": "ner", "metadata": {"in_sentence": ", ..\n\nBishan Narain and B. P. Maheshwari, for the appellants Nos.1-3 and 5-10."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 2461, "end_char": 2477, "source": "ner", "metadata": {"in_sentence": ", ..\n\nBishan Narain and B. P. Maheshwari, for the appellants Nos.1-3 and 5-10."}}, {"text": "H M. V. Goswami", "label": "LAWYER", "start_char": 2517, "end_char": 2532, "source": "ner", "metadata": {"in_sentence": "H M. V. Goswami, for appellant No."}}, {"text": "Bhawani Lal", "label": "LAWYER", "start_char": 2556, "end_char": 2567, "source": "ner", "metadata": {"in_sentence": "Bhawani Lal, E .C. Agarwala, Ganpat Rai and P.C. Agarwa/a. for respondent Nos."}}, {"text": "E .C. Agarwala", "label": "LAWYER", "start_char": 2569, "end_char": 2583, "source": "ner", "metadata": {"in_sentence": "Bhawani Lal, E .C. Agarwala, Ganpat Rai and P.C. Agarwa/a. for respondent Nos."}}, {"text": "Ganpat Rai", "label": "LAWYER", "start_char": 2585, "end_char": 2595, "source": "ner", "metadata": {"in_sentence": "Bhawani Lal, E .C. Agarwala, Ganpat Rai and P.C. Agarwa/a. for respondent Nos."}}, {"text": "P.C. Agarwa", "label": "LAWYER", "start_char": 2600, "end_char": 2611, "source": "ner", "metadata": {"in_sentence": "Bhawani Lal, E .C. Agarwala, Ganpat Rai and P.C. Agarwa/a. for respondent Nos."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 2735, "end_char": 2742, "source": "ner", "metadata": {"in_sentence": "864 SUPREME couRT REPORTS fl 966] 3 S.l'R\n\nThe Judgment of the Court was delivered by\n\nWanchoo, J ... This is an appeal by special lea'e fr<>m the decree of the Punjab High Court in a suit brought by the plaintiffs-respondents for pre-emption."}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 2809, "end_char": 2826, "source": "ner", "metadata": {"in_sentence": "864 SUPREME couRT REPORTS fl 966] 3 S.l'R\n\nThe Judgment of the Court was delivered by\n\nWanchoo, J ... This is an appeal by special lea'e fr<>m the decree of the Punjab High Court in a suit brought by the plaintiffs-respondents for pre-emption."}}, {"text": "Jalalpur", "label": "GPE", "start_char": 3085, "end_char": 3093, "source": "ner", "metadata": {"in_sentence": "The property in suit consisted of agricultural land as well as some haras in village Jalalpur."}}, {"text": "Punnu Singh", "label": "OTHER_PERSON", "start_char": 3096, "end_char": 3107, "source": "ner", "metadata": {"in_sentence": "Punnu Singh and Mansha Singh who were also parties to the suit as defendants sold lhc property in suit on January 15.1955 to the appellanls."}}, {"text": "Mansha Singh", "label": "OTHER_PERSON", "start_char": 3112, "end_char": 3124, "source": "ner", "metadata": {"in_sentence": "Punnu Singh and Mansha Singh who were also parties to the suit as defendants sold lhc property in suit on January 15.1955 to the appellanls."}}, {"text": "January 14, 1956", "label": "DATE", "start_char": 3357, "end_char": 3373, "source": "ner", "metadata": {"in_sentence": "Thereafter consolidation proceedings took place in this village and came to an end before the present suit was filed on January 14, 1956."}}, {"text": "s. 24", "label": "PROVISION", "start_char": 4740, "end_char": 4745, "source": "regex", "metadata": {"statute": null}}, {"text": "s.24", "label": "PROVISION", "start_char": 7853, "end_char": 7857, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPRBME", "label": "PETITIONER", "start_char": 8484, "end_char": 8491, "source": "ner", "metadata": {"in_sentence": "SUPRBME\n\nCOURT\n\nREPORTS\n\n(1966) 3 S.C.R\n\nrights than he had before nor can be get any Jess rights."}}, {"text": "s. 24", "label": "PROVISION", "start_char": 9667, "end_char": 9672, "source": "regex", "metadata": {"statute": null}}, {"text": "A11dh Behari Singh", "label": "OTHER_PERSON", "start_char": 10011, "end_char": 10029, "source": "ner", "metadata": {"in_sentence": "It is in this background that the nature of the right of preemption as held in A11dh Behari Singh's case (1) assumes importance."}}, {"text": "Section 24", "label": "PROVISION", "start_char": 10720, "end_char": 10730, "source": "regex", "metadata": {"statute": null}}, {"text": "s.24", "label": "PROVISION", "start_char": 11709, "end_char": 11713, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 11925, "end_char": 11930, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 12017, "end_char": 12022, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 12185, "end_char": 12190, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 12938, "end_char": 12943, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 12981, "end_char": 12986, "source": "regex", "metadata": {"statute": null}}, {"text": "8-9-65", "label": "DATE", "start_char": 14403, "end_char": 14409, "source": "ner", "metadata": {"in_sentence": "Costs as per order dated 8-9-65."}}]}
{"document_id": "1966_3_868_874_EN", "year": 1966, "text": "M. PADMANABHA SETTY\n\nK. P. PAPIAH SETTY\n\nMarclz I I, I 966\n\n(P. B. GAJENDRAGADKAR, C.J., K.N. WANCHOO, M. HIDAYA-\n\nTULLAH, J. C. SHAH AND S. M. S!KRI, JJ.)\n\nMysore House Rent and Acco1nntodation Control A.er (30 of 1951), s. 8(3) (a)(ii)-'\"Elltitled to possession'\", meaning of.\n\nThe appellant and the respon.dcnl were the tenant and landlord re\"- :pectively, of the non-residential premises in dispute.\n\nThe respondent's upplication under s. 8(3)(a) (ii) of the Mysore House Rent and Accommodation Contnrol Act, 1951, for eviction of the appeUant on the ground\n\n1hat the respondent required the prcmiscS for the purpose of shifting hi3 tbmusiness which he was carrying on in a rented building, was ordered,\n\nbut the order was set aside by the appellate court.\n\nThe High O>urt .in revision set aside the appellate order nd restored the order ot eviction. ·\n\nIa appeal to this Court, it was contended that :\n\n(i) since the rc.1pondent was, within the meaning of s. 8(3)(a)(ii). '\"entitled to poosession\" of the building in his occupation he had no right to ask for the ..appellant's eviction; and (ii) the High Court should not have interfered in re'wision under s. 17 of the Act.\n\nHELD :\n\n(i) The High Court was right in ordering the eviction of the appellant from the premises. • The respondent, who was in occupation of a build\"ng as a tenant. and over which he had no absolute right of possession but only a right 1:0 remain in possession till one of the conditions in s. 8(2) is satisfied. could not be srud to be \"entitled to possess'on\" of that building.\n\nTho.•e ·, vords are more akin to the right of possession which an owner has in respect of a building owned and occupied by him. [873 E-GJ\n\n(ii) In not following the decision of the High Court in Narayanappa v.\n\nF Narasimhlali, [1962) Mys. L.J. 760, the appellate court acted with mate- Tial irregularity and so the High Court could set aside the appellate orcler\n\nin revision. [874 BJ\n\nTfianappa Chetty v. Govindaswami Naicker, A.l.R. 1952 Mad. 553. overruled.\n\nCrv!L APPELLATE JURISDICATION: Civil Appeal No. 756 of 1%5.\n\nAppeal by special leave from the judgmenf'and order dated April 9, 1965 of tbe Mysore High Court in Civil Revision Petition No. 1044 of 1962. '4,\n\nS. K. Venkatarangaiengar G. L. Sanghi, J. B.\n\nDadacl1anji, O. C. Mathur and Ravinder Narain, for the appellant. 1 H\n\nMirle N. Lakshminaraynappa 0. P. Malhotra, S. S. Khm1d11ja <llnd Ganpat Rai. for the respondant.\n\nA •\n\n• _I\n\nB ; i\n\nG ...\n\nThe Judgment of the Court was delivered by\n\nSikri, J. This appeal by special leave is directed against the judgment of the High Court of Mysore in Civil Revision Petition No. 1044 of 1962, filed under s. 17 of the Mysore House Rent and Accommodation Control Act, 1951 (Mysore Act 30 of 1951)- hereinafter referred to as the Act-whereby the High Court set aside the order passed by the III Additional District Judge, Bangalore. The III Additional Judge had set aside the order of the First Munsiff, Bangalore, who had directed the eviction of the ten.int from the premises in dispute.\n\nThe appellant before us, Padmanabha Setty, hereinafter referred to as the tenant, was the tenant of a non-residential premises No. 281, Old Tharagupet, Bangalore City. The tenant had installed some machinery in the premises. The respondent, K. P.\n\nPapiah Setty, is the landlord.\n\nHe had purchased the premises for his own use and occupation, namely, for the purpose of shifting his business which he was carrying on in a rented building to the premises in dispute.\n\nThe landlord filed an application under s.8(3)(a)(ii) of the Act for the eviction of the tenant on the ground that he required the premises m dispute for his own use and occuption.\n\nIt is not necessary to give the other allegations made in the application as both the First Munsiff, Bangalore, and the III Additional District Judge, Bangalore, have found that the landlord required the premises for his honafide use and occupation, namely, for shifting his business from the rented premises to the premises in dispute. The Ill Additional District Judge, however, held that under s. 8(3)(a)(ii) the landlord was not entitled to possession of the premises in dispute unless and until he was prepared to vacate the shops in which he was trading at the time. This finding of the learned Additional Judge was contrary to the decision of the Mysore High Court in S. G. Narayanappa and Bros. v. A. N. Narasimhiah(' ). The landlord then filed a revision petition under s. 17 of the Act, and the High Court, following the decision in S. G. Narayanappa and Bros. v.\n\nA. N. Narasimhiah( 1) set aside the order of the Additional District Judge. The tenant having obtained special leave, the matter is now before us.\n\nTwo points are raised before us: ( 1) that the construction put upon s. 8(3)(a) (ii) of the Act by the Mysore High Court is erroneous and the construction put upon a similar provision by the Madras High Court in V. Thanappa Che tty v. Arcot Govindaswami Naicker(') is correct; and (2) that the High Court was not right in setting aside the order of the Additional District Judge in a revision under s.17 of the Act.\n\n-- . --~------ (!) [1962) Mys. L. J. 76\"l. {:!) A.T.R. 1952 Mad. 553.\n\nThe Act was passed to regulate the letting of residential and A non-residential houses and to control the rents of such houses and to prevent unreasonable eviction of tenants therefrom m the State of Mysore. The word \"tenant\" is defined as follows in sub-s.\n\n(9) of s. 2 of the Act:\n\n\" 'tenant' means any person by whom or on whose account rent is payable for a house and includes the surv1vmg spouse or any son or <laughter of a deceased tenant who had been living with the tenant in the house as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a house by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops has heen farmed out or leased by a local authority.\" There is no doubt that the definition of the word \"tenant\" 1s wider than the ordinary meaning of the word and includes a person rontinuing in possession after the termination of the tenancy in his favour.\n\nSection 4 deals with the determination of fair rent ands. 5 with lawful increase of or addition to or reduction in fair rent.\n\nSection 6 prohibits the landlord from claiming or receiving anything in excess of fair rent or agreed rent. Section 7 deals with issue of receipts for rent.\n\nSections 7 A and 7-B deal with the right of tenant to deposit rent in certain cases and time for deposit and savings. Section 7-C deals with eviction of tenant 1n occupation of a house under an allotment order. Section 8 deals with eviction of tenants and provides that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of s.7-C or of this section. Sub-section (2) provides the circumstances in which a landlord would be entitled to seek eviction of a tenant in possession.\n\nFor instance, a landlord is entitled to evict a tenant if the tenant has not tendered or paid the rent due by him in respect of the premises within the time fixed in the agreement of tenancy with the landlord\n\n-011 in the absence of any such agreement, by the last day of the month next following that for which the rent is payable; if he has transferred his right under the lease or sublet the entire premises or any portion thereof; or med the premises for the purpose other than that for which they were leased; or if the tenant ha~ committed such acts of waste as are likely to impair materially the value or utility of the house; or if the tenant has without the landlord's consent in writing erected on the hou, e or any portion thereof aRy permanent structu; e; or if the tenant or any person residing with the tenant has been guilty of such acts and conduct as amounts to nuisance or annoyanc\" to the adjoining or neighbouring occupiers\n\n,_ •\n\nA or has been using the house or allowing the house to be used for immoral or illegal purposes; or that the house is reasonably and bona fide required by the landlord for carrying out repairs or reconstruction which cannot be carried out without the house being vacated; or that the house has not been used without reasonable cause for the purpose for which it was let for a continuous period B of three months immediately preceding the date of application; or that the tenant, after the commencement of the Act, has built, .acquired vacant possession of or been allotted a suitable house.\n\nWe have set out these conditions in detail because it would be relevant to consider whether in view of these conditions a tenant can be said to have a right to possession of the premises of which he is a tenant. Then we come to sub-s. (3) (a) which reads as follows:\n\n\"(3)(a) A landlord may, subject to the provisions of clause ( d) apply to the court for an order directing the tenant to put the landlord in possession of the hoJJse-\n\n(i) in case it is a residential building, if the landlord requires it for his own occupation or for the occupation of a member of his family and ifhe or such member, as the case may be, is not occupying a residential building of his own in the city, town or village concerned;\n\n(ii) in case it is a non-residential building, if the landlord requires it for a business which he or a member of his family is carrying on and if for the purposes of the said business is not in occupation of a non-residential building which is owned by or to the possession of which the landlord or such member, as the case may be, is entitled whether under this Act or otherwise.\"\n\nIt is not necessary to set out the Explanation or the first proviso but the second proviso is relevant and runs thus:\n\n\"Provided further that where a landlord has obtained possession of a house for his own use or occupation or for the use or occupation of a member of his family under this clause he shall not be entitled to apply again under this clause-\n\n(i) ..... .\n\n(ii) for possession of another non-residential building of his own, for himself or for the same member of his family, in case he ha!i obtained possession of a nonresidential building.\" The Madras High Court held in V. Thannappa Chetty v.\n\nArco/ Govindaswami Naicker (') that the tenant under the Madras\n\n(I) A, I.R. 1952 Mad. 553 at p. 554-555.\n\n8 .. ,\n\n, J\n\nSUPREME COURI REPORTS\n\n(1966] 3 S<.R.\n\nBuildings (le:isc and Rent Control) Act (Madra' Act 15 of 1946) had a right to possession unless and until he was evicted under the provisions of the Madras Act, and, therefore, the landlord would not be entitled to possession of a non-residential building if he was. in possession of another non-resi.dential building as a tenant, for in such a case he would he entitled to possession of those premises. The reasoning of Subba Rao. J., then a Judge of the lli!!h Court of !Vladras, was as follows:\n\n\"It will. therefore, he seen that the relationship hctwccn the landlord and tenant even in cases in which such rc13tionship terminated under the provisions of the Transfer uf Property Act. conlinues subject to the provisions of the Act. The rights of the tenants as well as the landlord arc defined. The tenant under the Act has a right to possession unless and until he is evicted under the provisions of the Act.\n\nUnder the provisions of the Act, a landlord will not be entitled to the possession of his non-residential buildings, if he ohtains an order for eviction against another tenant in respect of another non-residential building, or if he is in possessi<>n of another non-residential building as a tenant; for in either case he is entitled to possession of that premises. 1 he words used in the section, viz., \"to the possession of which he is entitled\" are wide and I do not see any reason why the latter category should be e\\cluded from the express words used which in their ordinaT\\ meaning take in !hat class.\" \"It was argued that a statutory immunity is differenl from a right to possession.\n\nHut in my view a statutory immunity is not inconsistent with a right to possession.\n\nThe statutory immunity itself creates a right in him to continue in possession till he is evicted under the provisoins of the Ac1.\" The Mysore High Court dissented from this decision of the Madras High Court, and the reasoning of Ahmed Ali Khan. J .. in S. G. Narayanappa and Bros. v. A. N. Narasimhiah(') is as under:\n\n\"After a careful consideration of the arguments advanced before me. I am of the opinion that the provision of the Act on the strength of which a tenant may resist the landlord's claim to evict him cannot be described as a right to possession, but only as a statutory immunity from eviction as observed by the Federal Court in the case Kai\n\nKhushrdo v. Bai Jerbai. (2).\n\nIt appears that his Lordship in the Madras case distinguished the said observations in the said case of the Federa Court by stating that a statutory immunity is not inconsistent with the right to posses- (\\) 1196ifMy;:-(~ J 76:.i\n\n12) A. I. R. l'l49 F. C. 1:!4 (l!!liJ.\n\nA ..\n\n... •\n\nIt ..\n\nsion and that such immunity may itself create a right. The right to immunity from eviction involves a negative element in it. In other words it restricts the right of possession of the landlord. Hence, it cannot be construed to have an effect of creating a right of possession to a tenant.\n\nThough the statutory immunity from eviction may not be consistent with the right to possession, the fact remains in view of the inherent element involved in both the rights, that the immunity from eviction cannot be equated to the right to possession. Therefore, with great respect, I am of the view that we will not be justified in adopting the strict view while interpreting the words which occur in s. 8(3) (a)(ii) of the Mysore House Rent and Accommodation Control Act, as taken in the Madras ruling cited above.\"\n\nIn our opinion, with great respect to Subba Rao, J ., Ahmed Ali Khan, J., arrived at the correct conclusion. A tenant who can be evicted under the conditions prescribed in s. 8(2) of the Act cannot be said, in our view, to be entitled to the possession of the premises of which he is a tenant. No doubt he cannot be evicted till one or more of the conditions prescribed by the section are fulfilled, but it is difficult to equate his right to stay in the premises till he is evicted to an entitlement of the possession of the premises. Section 8(3)(a)(ii) deals with two types of cases; first where the landlord is in occupation of a non-residential building which is owned by him, and secondly, a non-residential building of which he is in occupation not as a landlord but otherwise. The object of the Act is to prevent unreasonable evictions of tenants.\n\nCan it be said that the Legislature is considering it to be unreasonable for a landlord to shift to his own premises while he is in occupation of tenanted premises over which he has not an absolute right of possession but only a right to remain in possession till one of the conditions in s. 8(2) is satisfied, and over one of .which he has no control. For instance, the landlord may require the premises for repairs or reconstruction or the neighbours may complain that the tenant is guilty of nuisance \"ir annoyance, or the landlord may think that the tenant has committed some acts of waste as are likely to impair materially the value or utility of the house. If any of these conditions is proved, he is liable to be evicted. In our view, in the context the words \"entitled to possession\" have a more positive content and are more akin to the right of possession which an owner has in respect of the building owned and occupied by him.\n\nIn conclusion we are of the view that the High Court was right in holding that the Additional District Judge erred in not following the decision of the Mysore High Court in S. G. Narayanappa and Bros. v. A. N. Narasimhiah.(1)\n\n(!) (1962) Mys. L.J. 760.\n\nM12Sup.C.l./66-!0\n\nThere is no force in the second point raised by the learned counsel of the tenant. It is true that the jurisdiction of a High Court under provisions similar to s.17 of the Act is limited, but we cannot say that the High Court was wrong in holding that the\n\nAdditional District Judge acted with material irregularity in not following the decision of the Mysore High Court when that decision had been rendered in a case arising from an earlier order of the same Additional District Judge. It may be that this decision was not pointed out to the Additional District Judge but we cannot, in exercise of our jurisdiction under Art. 136 of the Constitution, say that the High Court should not have set aside the order of the Additional District Judge on this ground.\n\nIn the result the appeal fails and is dismissed with costs.\n\nThe tenant is granted two months' time from today to vacate and deliver possession of the premises in dispute to the landlord.\n\nAppeal dismissed.", "total_entities": 53, "entities": [{"text": "M. PADMANABHA SETTY", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "M. PADMANABHA SETTY", "offset_not_found": false}}, {"text": "K. P. PAPIAH SETTY", "label": "RESPONDENT", "start_char": 21, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "K. P.\n\nPapiah Setty", "offset_not_found": false}}, {"text": "P. B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 61, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K.N. WANCHOO", "label": "JUDGE", "start_char": 89, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 126, "end_char": 133, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "s. 8(3)", "label": "PROVISION", "start_char": 222, "end_char": 229, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8(3)(a)", "label": "PROVISION", "start_char": 440, "end_char": 450, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore House Rent and Accommodation Contnrol Act, 1951", "label": "STATUTE", "start_char": 463, "end_char": 517, "source": "regex", "metadata": {}}, {"text": "s. 8(3)(a)(ii)", "label": "PROVISION", "start_char": 961, "end_char": 975, "source": "regex", "metadata": {"linked_statute_text": "the Mysore House Rent and Accommodation Contnrol Act, 1951", "statute": "the Mysore House Rent and Accommodation Contnrol Act, 1951"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 1162, "end_char": 1167, "source": "regex", "metadata": {"linked_statute_text": "the Mysore House Rent and Accommodation Contnrol Act, 1951", "statute": "the Mysore House Rent and Accommodation Contnrol Act, 1951"}}, {"text": "s. 8(2)", "label": "PROVISION", "start_char": 1472, "end_char": 1479, "source": "regex", "metadata": {"linked_statute_text": "the Mysore House Rent and Accommodation Contnrol Act, 1951", "statute": "the Mysore House Rent and Accommodation Contnrol Act, 1951"}}, {"text": "S. K. Venkatarangaiengar", "label": "JUDGE", "start_char": 2232, "end_char": 2256, "source": "ner", "metadata": {"in_sentence": "4,\n\nS. K. Venkatarangaiengar G. L. Sanghi, J. B.\n\nDadacl1anji, O. C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "G. L. Sanghi", "label": "JUDGE", "start_char": 2257, "end_char": 2269, "source": "ner", "metadata": {"in_sentence": "4,\n\nS. K. Venkatarangaiengar G. L. Sanghi, J. B.\n\nDadacl1anji, O. C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "B.\n\nDadacl1anji", "label": "JUDGE", "start_char": 2274, "end_char": 2289, "source": "ner", "metadata": {"in_sentence": "4,\n\nS. K. Venkatarangaiengar G. L. Sanghi, J. B.\n\nDadacl1anji, O. C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "O. C. Mathur", "label": "LAWYER", "start_char": 2291, "end_char": 2303, "source": "ner", "metadata": {"in_sentence": "4,\n\nS. K. Venkatarangaiengar G. L. Sanghi, J. B.\n\nDadacl1anji, O. C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 2308, "end_char": 2323, "source": "ner", "metadata": {"in_sentence": "4,\n\nS. K. Venkatarangaiengar G. L. Sanghi, J. B.\n\nDadacl1anji, O. C. Mathur and Ravinder Narain, for the appellant."}}, {"text": "Mirle N. Lakshminaraynappa", "label": "LAWYER", "start_char": 2349, "end_char": 2375, "source": "ner", "metadata": {"in_sentence": "1 H\n\nMirle N. Lakshminaraynappa 0."}}, {"text": "P. Malhotra", "label": "LAWYER", "start_char": 2379, "end_char": 2390, "source": "ner", "metadata": {"in_sentence": "P. Malhotra, S. S. Khm1d11ja <llnd Ganpat Rai."}}, {"text": "S. S. Khm1d11ja", "label": "LAWYER", "start_char": 2392, "end_char": 2407, "source": "ner", "metadata": {"in_sentence": "P. Malhotra, S. S. Khm1d11ja <llnd Ganpat Rai."}}, {"text": "Ganpat Rai", "label": "LAWYER", "start_char": 2414, "end_char": 2424, "source": "ner", "metadata": {"in_sentence": "P. Malhotra, S. S. Khm1d11ja <llnd Ganpat Rai."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 2516, "end_char": 2521, "source": "ner", "metadata": {"in_sentence": "A •\n\n• _I\n\nB ; i\n\nG ...\n\nThe Judgment of the Court was delivered by\n\nSikri, J. This appeal by special leave is directed against the judgment of the High Court of Mysore in Civil Revision Petition No."}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 2595, "end_char": 2615, "source": "ner", "metadata": {"in_sentence": "A •\n\n• _I\n\nB ; i\n\nG ...\n\nThe Judgment of the Court was delivered by\n\nSikri, J. This appeal by special leave is directed against the judgment of the High Court of Mysore in Civil Revision Petition No."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 2673, "end_char": 2678, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore House Rent and Accommodation Control Act, 1951", "label": "STATUTE", "start_char": 2686, "end_char": 2739, "source": "regex", "metadata": {}}, {"text": "III Additional District Judge, Bangalore", "label": "COURT", "start_char": 2857, "end_char": 2897, "source": "ner", "metadata": {"in_sentence": "1044 of 1962, filed under s. 17 of the Mysore House Rent and Accommodation Control Act, 1951 (Mysore Act 30 of 1951)- hereinafter referred to as the Act-whereby the High Court set aside the order passed by the III Additional District Judge, Bangalore."}}, {"text": "Bangalore", "label": "GPE", "start_char": 2970, "end_char": 2979, "source": "ner", "metadata": {"in_sentence": "The III Additional Judge had set aside the order of the First Munsiff, Bangalore, who had directed the eviction of the ten.int from the premises in dispute."}}, {"text": "Padmanabha Setty", "label": "PETITIONER", "start_char": 3082, "end_char": 3098, "source": "ner", "metadata": {"in_sentence": "The appellant before us, Padmanabha Setty, hereinafter referred to as the tenant, was the tenant of a non-residential premises No."}}, {"text": "Bangalore City", "label": "GPE", "start_char": 3209, "end_char": 3223, "source": "ner", "metadata": {"in_sentence": "281, Old Tharagupet, Bangalore City."}}, {"text": "K. P.\n\nPapiah Setty", "label": "RESPONDENT", "start_char": 3298, "end_char": 3317, "source": "ner", "metadata": {"in_sentence": "The respondent, K. P.\n\nPapiah Setty, is the landlord.", "canonical_name": "K. P.\n\nPapiah Setty"}}, {"text": "s.8(3)(a)(ii)", "label": "PROVISION", "start_char": 3563, "end_char": 3576, "source": "regex", "metadata": {"linked_statute_text": "the Mysore House Rent and Accommodation Control Act, 1951", "statute": "the Mysore House Rent and Accommodation Control Act, 1951"}}, {"text": "s. 8(3)(a)(ii)", "label": "PROVISION", "start_char": 4102, "end_char": 4116, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 4359, "end_char": 4376, "source": "ner", "metadata": {"in_sentence": "This finding of the learned Additional Judge was contrary to the decision of the Mysore High Court in S. G. Narayanappa and Bros. v. A. N. Narasimhiah(' )."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 4484, "end_char": 4489, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8(3)(a)", "label": "PROVISION", "start_char": 4797, "end_char": 4807, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 4919, "end_char": 4936, "source": "ner", "metadata": {"in_sentence": "Two points are raised before us: ( 1) that the construction put upon s. 8(3)(a) (ii) of the Act by the Mysore High Court is erroneous and the construction put upon a similar provision by the Madras High Court in V. Thanappa Che tty v. Arcot Govindaswami Naicker(') is correct; and (2) that the High Court was not right in setting aside the order of the Additional District Judge in a revision under s.17 of the Act."}}, {"text": "s.17", "label": "PROVISION", "start_char": 5127, "end_char": 5131, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 5482, "end_char": 5486, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 6325, "end_char": 6334, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 6452, "end_char": 6461, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 6560, "end_char": 6569, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 7", "label": "PROVISION", "start_char": 6610, "end_char": 6620, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 6728, "end_char": 6737, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8", "label": "PROVISION", "start_char": 6821, "end_char": 6830, "source": "regex", "metadata": {"statute": null}}, {"text": "s.7", "label": "PROVISION", "start_char": 7000, "end_char": 7003, "source": "regex", "metadata": {"statute": null}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 10983, "end_char": 10992, "source": "ner", "metadata": {"in_sentence": "The reasoning of Subba Rao."}}, {"text": "Ahmed Ali Khan", "label": "JUDGE", "start_char": 12484, "end_char": 12498, "source": "ner", "metadata": {"in_sentence": "The Mysore High Court dissented from this decision of the Madras High Court, and the reasoning of Ahmed Ali Khan."}}, {"text": "Madras", "label": "GPE", "start_char": 12980, "end_char": 12986, "source": "ner", "metadata": {"in_sentence": "It appears that his Lordship in the Madras case distinguished the said observations in the said case of the Federa Court by stating that a statutory immunity is not inconsistent with the right to posses- (\\) 1196ifMy;:-(~ J 76:.i\n\n12) A. I. R. l'l49 F. C. 1:!4 (l!!liJ.\n\nA ..\n\n... •\n\nIt ..\n\nsion and that such immunity may itself create a right."}}, {"text": "s. 8(3)", "label": "PROVISION", "start_char": 13928, "end_char": 13935, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8(2)", "label": "PROVISION", "start_char": 14217, "end_char": 14224, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8(3)(a)(ii)", "label": "PROVISION", "start_char": 14581, "end_char": 14600, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8(2)", "label": "PROVISION", "start_char": 15191, "end_char": 15198, "source": "regex", "metadata": {"statute": null}}, {"text": "s.17", "label": "PROVISION", "start_char": 16276, "end_char": 16280, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 16738, "end_char": 16746, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_875_879_EN", "year": 1966, "text": "•• H\n\nGHANSHIAM DAS\n\nv .\n\nDEVI PRASAD & ANOTHER\n\nMarch ll, 1966\n\n[K. SUBBA RAO, V. RAMAsWAM! AND J. M. SHELAT JJ.]\n\nU.P. Zamlndarl Abolition and Land Reforms Act (U.P. Act I of 1951), s. 9-Brick kiln whether 'building' within meaning of section\n\nThe respondents owned a brick kiln which they leased out to the appellants in 1950. They filed a suit against the appellants claiming rent for the period October 1, 1952 to September 30 1953. The appellants contended in defence that as a result of the operation of the U.P. Zamindari Abolition and Land Reforms Act the Land in question stood vested in the State of U.P. with effect from July 1, 1952 and no rent was payable\n\nID the respondents thereafter. The suit was partly decreed by the trial oourt but dismissed in toto by the first appellate court. In second appeal the High Court held that th~ brick kiln was a 'building' within the meaning of s. 9 of the Act and therefore the land did not vest in the State.\n\nThe appellants came to this Court.\n\nHELD : In the absence of a definition in the Act itself the question as to what is a 'building' under s. 9 must always be question of degree-- a question depending on the facts ancl circumstances of each case. The brick kiln in the present case was a mere pit with some bricks by its aides. It could not be said to be a 'building' within the meaning of s. 9 of the Act and the High Court therefore went wrong in holding that the land did not vest in the State. [878 E-F, HJ\n\nR. v. Neath Canal Navigation, 40 L.J.M.C. 197, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 80 and 81 of 1964. ·\n\nAppeals by special leave from the judgment and decree dated the October 24, 1960 of the Allahabad High Court in Second Appeals Nos. 2510 and 2511 of 1957.\n\nS. P. Sinha and M. I. Khowaja, for the appellant.\n\nJ.P. Goyal, for the respondents\n\nThe judgment of the court was delivered by\n\nRamaswami, J. Thequestionoflawinvolvedin these appeals is whether the disputed brick kiln on plots nos. 596 and 597 in Mauza Sarwat, Pargana and District Muzaffarnagar and leased out to the appellant is a \"building\" within the meaning of s. 9 of the U.P. Zamindari Abolition and Land Reforms Act (U.P.\n\nAct I of 1951).\n\nThe respondents are the owners of a brick kiln located on the two plots nos. 596 and 597 in Mauza Sarwat, Pargana and District Muzaffarnagar.\n\nThey leased out the brick kiln to the 875\n\nSUPREMB COURT REPORTS\n\n[1966) 3 S.C.R.\n\nappellant under a registered lease deed dated December 29, 1950.\n\nA The lease was to take effect from January I, 1951 and terminate oo September 30, 1953. The rent was fixed at Rs. 41 per mensem payable annually in the month of October. The rent for tho period October l, 1952 to September 30, 1953 remained duo qainst the appellant. The respondents filed a suit (no. 1125 of 1953) in the Court of Munsif Muzaffarnagar for the rccoveryjB of Rs. 492 being arrears of rent from October l, 1952 to September 30, 1953. The suit was contested by the appellant who pleaded that after the passing of the U.P. Zamindari Abolition aild Land Reforms Act (U.P. Act I of 1951)-hereinafter called the 'Act' -the plots of land had vested in the State of U.P. under\n\ne. 6 of tho Act with effect from July I, 1952 and the respondenta were, therefore, not entitled to claim any rent from the appellant C By his judgment dated February 12, 1955 the Additional Munsif,\n\nMuzaffarnagar held that the brick kiln did not vest in the State and uitoccupiedonly I/3rd of the total area of the land, the respondents were entitled to a decree for I /3rd of the rent claimed. Tho\n\nMunsif accordingly granted a decree for a sum of Rs. 164 and/( dismissed the balance of the claim of the respondentJ. Against D the judgment of the Additional Munsif both the parties filed appeals before the District Judge.\n\nBoth the appeals were disposed of by the Civil Judge of MuzatTarnagar by a common judg. ment dated August 19, 1957. It was held by the Additional Civil Judge that the brick kiin could not be regarded as a \"building'' within the meaning of s. 9 of the Act and the entire area of the .. two plots nos. 596 and 597 had vested in the State. The Additional Civil Judge accordingly allowed the appellant's appeal and dismissed the appeal of the respondents. The net result W8! that the suit of the respondents for arrears of rent was dismissed!/\n\nas a whole.\n\nAgainst the judgment of the Additional Civil Judge the respondents filed two Second Appeals nos. 2510 and 2511 of 1957 to the High Court. The High Court held that tho F brick kiln was a \"building\" within the meaning of s. 9 of the Act and the title to the two plots of land did not vest in the State and the respondents acquired the righs of statutory tenants under\n\n1. 9 of the Act and they had a right to demand rent from the appellant under the tcnns of the lease. The High Court accordingly allowed both the Second Appeals and granted a decree G to the respondents for the entire amount of rent claimed.\n\nSection 4 of the Act deals with the acquisition of the interest. of intermediaries. The section provides as follows :\n\n\"4. (I) As soon as may be after the commencement of this Act the State Government may, by notification, H declare that as from a date to be specified, all estates situate in lJttar Pradesh shall vest in the State and, as from tho\n\nA beginning of the date so specified (hereinafter called the date of vesting), all such estates, shall stand transferred to and vest, except as hereinafter provided, in the State free from all encumbrances.\n\n(2) It shall be lawful for the State Government, if it so considers necessary, to issue, from time to time, the notification referred to in sub-section (1) in respect only of such area or areas as may be specified and all the provisions of sub-section (1) shall be applicable to and in the case of every such notification.\"\n\nSection 6(a) sets out the consequences of the vesting of an estate in the State. Section 6(a) reads as follows :\n\n\"6. When the notification under s. 4 has been published in the Gazette, then, notwithstanding any thing contained in any contract or document or an any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafterset forth shall, from the beginning of the date of vesting, ensue in the area to which the notification relates, namely :...:.: .\n\n(a) all rights, title and interest of all the intermediarics-\n\n(i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars and melu other than hats, bazars, and melas held upon land to which clauses (a) to (c) of sub-section ( 1) of section 18 apply and,\n\n(ii) in all sub-soil in such estate including rights, if any, in mines and minerals, whether being worked or not;\n\nshall cease and be vested in the State of Uttar\n\nPradesh free from all encumbrances;\"\n\nSection 9 of the Act states :\n\n\"9. All wells, trees in abadi and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such intermediary, tenant or person, as the case may be, and the site of the wells or the buildings with the area\n\nSUPREME COURT REPORTS\n\n[1966] 3 S.C.R.\n\nappurtenant thereto shall be deemed to be settled with A him by the State Government on such tenns and conditions as may be prescribed.\"\n\nThe word \"building\" bas not been defined in the Act and must, therefore, be construed in its ordinary grammatical sense unless there is something in the context or object of' the statute to show that. it is used in a special sense different from its ordinary grammallcal sense. In Websters New International Dictionary the word \"building\" has been defined as follows :\n\n\"That which is built specif : (a) as now generally used a fabric or edifice, framed or constructed, designed to •land more or less pennanently, & covering a space of land for use as a dwelling, store house, factory, shelter for beasts or liome other useful purpose. Building in this sense does not include a mere wall, fence, monument, hoarding or 1imilar structure though designed for pennanent use where it stands, nor a steamboat, ship or other vessel of navigation.\"\n\nFrom this definition it does not appear that the existence of a roof ia always necessary for a structure to be regarded as a building.\n\nIt.ecidcntial buildings ordinarily have roofs but there can be a non-residential building for which a roof is not necessary. A large stadium or an open-air swimming pool constructed at a considerable expense would be a building as it is a permanent structure and designed for a useful purpose. The question as to what is a \"building\" under s. 9 of the Act must always be a question of degrcoa question depending on the facts and circumstances of each caae.\n\nAl Blackburn, J. observed in R. v. Neath Canal Navigation ( 1) :\n\n\"The masonry on the sides of a canal is not sufficient to constitute it a 'building'. A London street, though paved and faced with stonework, would yet be 'land', whilst the Holborn Viaduct would be a 'building'.\"\n\nThe question for determination in the present case, therefore, is whether the kiln leased out to the appellant is a \"building\" within the meaning of s. 9 of the Act. It has been found by the lint appelate court that the brick kiln has no site and is not a roofed structure. It was a mere pit with some bricks by its sides. It is also admitted in this case that there was no structure standing on the Bhatia. Upon these facts, it is clear that the brick kiln has no walls and no roof but it is a mere pit dug in the ground with bricks by its side. In the circumstances, we are of the opinion that the brick kiln leased out to the appellant, in the present case, is not a \"buil-\n\n(1) 40 L J.M. C. 197.\n\n~ . ·-\n\nA ding\" within the meaning of s. 9 of the Act. It follows, therefore that the title to both the plots nos. 596 and 597 along with the brick kiln vested in the State Government with effect from July l, 1952 and ,_, the respondents are not entitled to claim any rent from the appellant for the period from October l, 1952 to September 30, 1953.\n\nB For the reasons expressed, we hold that suit no. Jl25 of 1953 filed by the respondents should be disinissed and these appeals must be allowed with costs. ' Appeal a/lo.wed.", "total_entities": 38, "entities": [{"text": "H\n\nGHANSHIAM DAS", "label": "PETITIONER", "start_char": 3, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "GHANSHIAM DAS", "offset_not_found": false}}, {"text": "DEVI PRASAD & ANOTHER", "label": "RESPONDENT", "start_char": 26, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "DEVI PRASAD & ANOTHER", "offset_not_found": false}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 66, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "M. SHELAT JJ.", "label": "JUDGE", "start_char": 100, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT", "offset_not_found": false}}, {"text": "Zamlndarl Abolition and Land Reforms Act", "label": "STATUTE", "start_char": 121, "end_char": 161, "source": "regex", "metadata": {}}, {"text": "s. 9", "label": "PROVISION", "start_char": 184, "end_char": 188, "source": "regex", "metadata": {"linked_statute_text": "Zamlndarl Abolition and Land Reforms Act", "statute": "Zamlndarl Abolition and Land Reforms Act"}}, {"text": "Zamindari Abolition and Land Reforms Act", "label": "STATUTE", "start_char": 520, "end_char": 560, "source": "regex", "metadata": {}}, {"text": "July 1, 1952", "label": "DATE", "start_char": 633, "end_char": 645, "source": "ner", "metadata": {"in_sentence": "The appellants contended in defence that as a result of the operation of the U.P. Zamindari Abolition and Land Reforms Act the Land in question stood vested in the State of U.P. with effect from July 1, 1952 and no rent was payable\n\nID the respondents thereafter."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 897, "end_char": 901, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act", "statute": "Zamindari Abolition and Land Reforms Act"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 1102, "end_char": 1106, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act", "statute": "Zamindari Abolition and Land Reforms Act"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 1353, "end_char": 1357, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act", "statute": "Zamindari Abolition and Land Reforms Act"}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 1695, "end_char": 1715, "source": "ner", "metadata": {"in_sentence": "Appeals by special leave from the judgment and decree dated the October 24, 1960 of the Allahabad High Court in Second Appeals Nos."}}, {"text": "S. P. Sinha", "label": "LAWYER", "start_char": 1763, "end_char": 1774, "source": "ner", "metadata": {"in_sentence": "S. P. Sinha and M. I. Khowaja, for the appellant."}}, {"text": "M. I. Khowaja", "label": "LAWYER", "start_char": 1779, "end_char": 1792, "source": "ner", "metadata": {"in_sentence": "S. P. Sinha and M. I. Khowaja, for the appellant."}}, {"text": "J.P. Goyal", "label": "LAWYER", "start_char": 1814, "end_char": 1824, "source": "ner", "metadata": {"in_sentence": "J.P. Goyal, for the respondents\n\nThe judgment of the court was delivered by\n\nRamaswami, J. Thequestionoflawinvolvedin these appeals is whether the disputed brick kiln on plots nos."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 1891, "end_char": 1900, "source": "ner", "metadata": {"in_sentence": "J.P. Goyal, for the respondents\n\nThe judgment of the court was delivered by\n\nRamaswami, J. Thequestionoflawinvolvedin these appeals is whether the disputed brick kiln on plots nos.", "canonical_name": "V. RAMASWAMI"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 2129, "end_char": 2133, "source": "regex", "metadata": {"statute": null}}, {"text": "Zamindari Abolition and Land Reforms Act", "label": "STATUTE", "start_char": 2146, "end_char": 2186, "source": "regex", "metadata": {}}, {"text": "Munsif Muzaffarnagar", "label": "JUDGE", "start_char": 2835, "end_char": 2855, "source": "ner", "metadata": {"in_sentence": "1125 of 1953) in the Court of Munsif Muzaffarnagar for the rccoveryjB of Rs."}}, {"text": "Zamindari Abolition aild Land Reforms Act", "label": "STATUTE", "start_char": 3039, "end_char": 3080, "source": "regex", "metadata": {}}, {"text": "State of U.P.", "label": "ORG", "start_char": 3168, "end_char": 3181, "source": "ner", "metadata": {"in_sentence": "The suit was contested by the appellant who pleaded that after the passing of the U.P. Zamindari Abolition aild Land Reforms Act (U.P. Act I of 1951)-hereinafter called the 'Act' -the plots of land had vested in the State of U.P. under\n\ne. 6 of tho Act with effect from July I, 1952 and the respondenta were, therefore, not entitled to claim any rent from the appellant C By his judgment dated February 12, 1955 the Additional Munsif,\n\nMuzaffarnagar held that the brick kiln did not vest in the State and uitoccupiedonly I/3rd of the total area of the land, the respondents were entitled to a decree for I /3rd of the rent claimed."}}, {"text": "February 12, 1955", "label": "DATE", "start_char": 3346, "end_char": 3363, "source": "ner", "metadata": {"in_sentence": "The suit was contested by the appellant who pleaded that after the passing of the U.P. Zamindari Abolition aild Land Reforms Act (U.P. Act I of 1951)-hereinafter called the 'Act' -the plots of land had vested in the State of U.P. under\n\ne. 6 of tho Act with effect from July I, 1952 and the respondenta were, therefore, not entitled to claim any rent from the appellant C By his judgment dated February 12, 1955 the Additional Munsif,\n\nMuzaffarnagar held that the brick kiln did not vest in the State and uitoccupiedonly I/3rd of the total area of the land, the respondents were entitled to a decree for I /3rd of the rent claimed."}}, {"text": "Civil Judge of MuzatTarnagar", "label": "COURT", "start_char": 3855, "end_char": 3883, "source": "ner", "metadata": {"in_sentence": "Both the appeals were disposed of by the Civil Judge of MuzatTarnagar by a common judg."}}, {"text": "August 19, 1957", "label": "DATE", "start_char": 3913, "end_char": 3928, "source": "ner", "metadata": {"in_sentence": "ment dated August 19, 1957."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 4053, "end_char": 4057, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition aild Land Reforms Act", "statute": "Zamindari Abolition aild Land Reforms Act"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 4587, "end_char": 4591, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 4977, "end_char": 4986, "source": "regex", "metadata": {"statute": null}}, {"text": "lJttar Pradesh", "label": "GPE", "start_char": 5270, "end_char": 5284, "source": "ner", "metadata": {"in_sentence": "I) As soon as may be after the commencement of this Act the State Government may, by notification, H declare that as from a date to be specified, all estates situate in lJttar Pradesh shall vest in the State and, as from tho\n\nA beginning of the date so specified (hereinafter called the date of vesting), all such estates, shall stand transferred to and vest, except as hereinafter provided, in the State free from all encumbrances."}}, {"text": "Section 6(a)", "label": "PROVISION", "start_char": 5860, "end_char": 5872, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6(a)", "label": "PROVISION", "start_char": 5941, "end_char": 5953, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 6006, "end_char": 6010, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18", "label": "PROVISION", "start_char": 6828, "end_char": 6838, "source": "regex", "metadata": {"statute": null}}, {"text": "Uttar\n\nPradesh", "label": "GPE", "start_char": 7008, "end_char": 7022, "source": "ner", "metadata": {"in_sentence": "(a) all rights, title and interest of all the intermediarics-\n\n(i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars and melu other than hats, bazars, and melas held upon land to which clauses (a) to (c) of sub-section ( 1) of section 18 apply and,\n\n(ii) in all sub-soil in such estate including rights, if any, in mines and minerals, whether being worked or not;\n\nshall cease and be vested in the State of Uttar\n\nPradesh free from all encumbrances;\"\n\nSection 9 of the Act states :\n\n\"9."}}, {"text": "Section 9", "label": "PROVISION", "start_char": 7053, "end_char": 7062, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 8932, "end_char": 8936, "source": "regex", "metadata": {"statute": null}}, {"text": "Al Blackburn", "label": "JUDGE", "start_char": 9050, "end_char": 9062, "source": "ner", "metadata": {"in_sentence": "Al Blackburn, J. observed in R. v. Neath Canal Navigation ( 1) :\n\n\"The masonry on the sides of a canal is not sufficient to constitute it a 'building'."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 9480, "end_char": 9484, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 10070, "end_char": 10074, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_880_884_EN", "year": 1966, "text": "STATE OF MAHARASHTRA\n\nNARHARRAO March 14, 1966\n\n(K. SUBBA RAo, V. RAMASWAMI AND J. M. SllELAT, JJ.j\n\nBombay PoUce Act (22 of 1951), s. 161(1)-\"Undtr colour or In excas of any suc/J duty or authority .. , meaning of.\n\n'Ibo respondent, a head constable, was charged under s. 161, Indian Peul Code, and s. 5(1) (b) and (2) of the Prevention of Corruption Act, for accepting a bribe for weakening a prosccutioo case.\n\nHe was convicted by the u:a1 coun, but the High Court allowed the appeal on the ground that under s. 161(1) of the Bombay Police Act 1951, the prosecution was barred having been launched more than six months after the date of the alleged offence.\n\nIn appeal to this Court, HE!LD : The High Court was m error, because, the benefit of the aix months period of limitation i• available only when the allC!(ed act of the officer was one done under colour t>f the duty imposed or tho authority conferred on him by any provision of law, or in excess of any auch duty or authority.\n\nUnleas there is a reasonable connection between the act complained of and the powers and duties of the office, it cannot be said that tho act was done by the accused omcer under the colour of bis office. (882 E; 883 CJ\n\nThe State o; Andhra Prades/1 v. N. Venuropal ll1ld On., [1964) 3 S.C.R. 742. followed.\n\nVlrupaxappa Veerqpa Kadampur '' Stale of Mytore, (1963) Supp. 2 S.C.ll. 6, referred to.\n\nCRIMINAL APPELi.A TP. JURJSDICllON : Criminal Appeal No. 214 of 1964.\n\nAppeal by special leave from the judgment and order datecl I' the November 11, 1963 of the Bombay High Court (Nagpur Bench) at Nagpur in Criminal Appeal No. 153 of 1963.\n\nR. M. Hazamai•is, R. H. Dliebar and B. R. G. K. A char, for the appellant.\n\nM. S. K. Sastri, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. This appeal is brought, by special leave, from the judgment of the High Court of Bombay, Nagpur, Bench dated November II, 1963 in Criminal Appeal no. 153of1963. ..\n\nThe respondent Narharrao, a police Head Constable was attached to the Murtizapur Police Station in September, 1962.\n\nHe was investigating offences under ss. 110, 102 and 117 of the\n\n. -·\n\nBombay Police Act against two persons, viz., Onkar and Harihar.\n\nIt is alleged that Onkar and Harihar approached Narharrao for showing them some favour. The latter demanded Rs. 25 as a bribe for weakening the prosecution case which was to be launched against Onkar and Harihar. The respondent accepted Rs. 5 on or about October 14, 1962 and Rs. 10 on or about October 19, 1962 as illegal gratification. The respondent was tried in the Court of the Special Judge, Akola for accepting bribe under s. 161, Indian Penal Code or alternatively for committing criminal misconduct in the discharge of his duties which is punishable under s. 5(2) read with s. 5(1)(b) of the Prevention of Corruption Act.\n\nBy this judgment dated June 25, 1963, the Special Judge held the respondent guilty of both the offences and sentenced him to rigorous imprisonment for one year and also to pay a fine of Rs. 200 .or in default to a rigorous imprisonment for a further period of 3 months.\n\nThe respondent filed an appeal in the High Court, being Criminal Appeal no. 153 of 1963. The High Court allowed the appeal on the ground that s.161(1) of the Bombay Police Act was a bar to the prosecution of the respondent. The High Court did not discuss in detail the question as to whether there was sufficient evidence to support the conviction of the respondent on merits but acquitted him on the technical ground that no prosecution could be launched more than six months after the date of the alleged offence, as required under s.161(1) of the Bombay Police Act.\n\nThe question of law presented for determination in this appea is whether the alleged act of offence was committed by the respondent \"under colour or in excess of any such duty or authority as aforesaid\" within the meaning of s. 161(1) of the Bombay Police.\n\nAct (Bombay Act 22 of 1951).\n\nSection 159 of this Act provides as follows :\n\nF \"159. No Revenue Commissioner, Magistrate or Police Officer shall be liable to any penalty or to payment of damages on account of an act done in good faith, in pursuance or intended pursuance of any duty imposed or any authority conferred on him by any provision of this Act or any other law for the time being in force or any G rule, order or direction made or given therein.\"\n\nSection 160 enacts :\n\n\"160. No public servant or person duly appointea or authorised shall be liable to any penalty or to payment of any damages for giving effect in good faith to any such order or direction issued with apparent authority by the State Government or by a person empowered in that behalf under this Act or any rule, order or direction made or given thereunder.\"\n\nss2\n\nSUPREME COURT REPORTS\n\n(1966] 3 S.C.R.\n\nSection 161 (I) states as follows :\n\n\"161. (I) Jn any case of alleged offence by the Revenue Commissioner, the Commissioner, a Magistrate, Police Officer or other person, or of a wrong alleged to have been done by such Revenue Commissioner, Commissioner, Magistrate, Police Officer or other person, by any act done under colour or in excess of any such duty or authority as aforesaid, or wherein, it shall appear to the Court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained, or shall be dismissed, if instituted, more than six months after the date of the act complained of.\"\n\nIt is manifest that in order that the accused person against whom a prosecution has been launched may get the benefit of six months period of limitation under the section, it must appear to the Court ·(I) that the offence was committed under colour of any duty imposed or any authority conferred by any provisions of the Bombay Police Act or any other law for the time being in force, or (2) that the act was done in excess of any such duty or authority as aforesaid.\n\nThe question arising in this case, therefore, is whether the alleged act of the respondent in accepting bribe was an act done under colour of the duty imposed or the authority conferred on the respondent by any provision of law or in excess of any such duty -or authority as aforesaid. In examining this question it is necessary,\n\nin the first place, to ascertain what act is complained of and then to see if there is any provision of the Bombay Police Act or any other law under which it may be said to have been done or purported to have been done. In this connection, it is important to 'femember that an act is not done under colour of an office merely because the point of time at which it is done coincides with the point of time the accused is invested with the powers or duty of the office. To be able to say that an act was done under the colour -of an office one must discover a reasonable connection between the act alleged and the duty or authority imposed on the accused by the Bombay Police Act or other statutory enactrD; ent.\n\nUnless there is a reasonable connection between the act complained of and the powers and duties of the office, it is diffi.cult to say that the act was done by the accused officer under the colour of his office.\n\nFor example, if a police officer is prosecuted for an offmce under s. 323 of the Indian Penal Code said to have been com!Illtted\n\nin making an arrest, the prosecution must fail unless c?mmenced H within six months of the act complained of, as reqmred by s. 161(1) of the Bombay Police Act. Again, if the prosecution is for an offence under ~. 304, Indian Penal Code said to have been com-\n\n...\n\n,.,\n\nA mitted in the process of dispersing an unlawful assembly under s. 128 of the Criminal Procednre Code, the limitation provided under s. 161(1) of the Bombay Police Act will apply. Similarly, if the prosecution is for an offence under s. 341 of the Indian Penal Code said to have been committed by the Act of closing a street or passage in or near which a fire is burning in exercise of the powers B under s. 152 of the Criminal Procedure Code, or for an offence under s. 426 of the Indian Penal Code, said to have been committed by the pulling down of a house for the purpose of extinguishing a fire, the prosecution must fail unless brought within the period prescribed under s. 161(1) of the Bombay Police Act.\n\nBut unless there is a reasonable connection between the act complained of and the powers and duties of the office, it cannot be said that the act was done by the accused officer under the colour of his office. Applying this test to the present case, we are of the opinion that the alleged acceptance of bribe by the respondent was not an act which could be said to have been done under the colour of his office or done in excess of his duty or authority within the meaning of s. 161(1) of the Bombay Police Act. It follows, therefore, that the High Court was in error in holding that the prosecution of the respondent was barred because of the period of limitation prescribed under s. 161(1) of the Bombay Police Act. The view that we have expressed is borne out by the decision of this Court in The State of Andhra Pradesh v. N. Venugopal and others (1) in which the Court had construed the language of a similar provision of s. 53 of the Madras District Police Act (Act of 24 of 1859). It was pointed out in that case that the effect of s. 53 of that Act was that all prosecutions whether against a police officer or a person other than a police officer (e.g. a member of the Madras Fire Service, above the rank of a fireman acting under s. 42 of the Act) must be commenced within three months after the act complained of, if the act is one which has been done or intended to be done under any of the provisions of the Police Act. In that case, the accused police officers were charged under ss. 348 and 331 of the Indian Penal Code for wrongly confining a suspect Arige Ramanna in the course of investigation and causing him injuries. The accused were convicted by the Sessions Judge under ss. 348 and 331 of the Indian Penal Code but in appeal the Andhra Pradesh High Court held that the bar under s. 53 of the Police Act applied and the accused were entitled to an acquittal. It was, however, held by this Court that the prosecution was not barred under s. 53 of the Police Act, for it cannot be said that the acts of beating a person suspected of a crime or confining him or sending him away in an injured condition by the police at a time when they were engaged in investigation are acts done or intended to be done under the provisions of the Madras District Police Act or Criminal Procedure Code or any other law\n\n(I) (1964] 3 S.C.R. 742.\n\n884 SUPREME COUllT REPORTS [1966] 3 S.C.ll.\n\nconferring powers on the police. The appeal was accordingly allowed by this Court and the acquittal of the respondent set aside.\n\nOn behalf of the respondent reference was made to the decision of this Court in Virupaxappa Veerappa Kadampur v.Stateof Mysore(,').\n\nBut the ratio of that decision is not applicable to the present case.\n\nIn that case, a police officer authorised under the Bombay Prohibition Act to seize smuggled Ganja, prepared a false Panchnama and a false report as regards the seizure of the Ganja and it was held by this Court that the provisions of s. 161(1) of the Bombay\n\nPolice Act were applicable. It is clear that in that case it was the duty of the police Head Constable to prepare a Panchnama and the act of preparation of false Panchnama was, therefore, done under the colour of his office. There was hence a nexus between the act complained of and the statutory duty that the police Head Constable was to perform and the provisions of s. 161(1) of the Bombay Police Act were applicable. In the present case the material facts are quite different.\n\nFor the reasons expressed, we allow this appeal, set aside the judgment of the High Court acquitting tile respondent and order that the appeal should go back in remand to the High Court for being re-heard and dealt with in accordance with law.\n\nAppeal allowed\n\n-··---·- (ll%i1 Supp. 2 s.c.R.6\n\nD •", "total_entities": 87, "entities": [{"text": "STATE OF MAHARASHTRA", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "NARHARRAO", "label": "RESPONDENT", "start_char": 22, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "NARHARRAO", "offset_not_found": false}}, {"text": "March 14, 1966", "label": "DATE", "start_char": 32, "end_char": 46, "source": "ner", "metadata": {"in_sentence": "STATE OF MAHARASHTRA\n\nNARHARRAO March 14, 1966\n\n(K. SUBBA RAo, V. RAMASWAMI AND J. M. SllELAT, JJ.j\n\nBombay PoUce Act (22 of 1951), s. 161(1)-\"Undtr colour or In excas of any suc/J duty or authority .. , meaning of."}}, {"text": "K. SUBBA RAo", "label": "JUDGE", "start_char": 49, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 63, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Bombay PoUce Act", "label": "STATUTE", "start_char": 101, "end_char": 117, "source": "regex", "metadata": {}}, {"text": "s. 161(1)", "label": "PROVISION", "start_char": 132, "end_char": 141, "source": "regex", "metadata": {"linked_statute_text": "Bombay PoUce Act", "statute": "Bombay PoUce Act"}}, {"text": "s. 161", "label": "PROVISION", "start_char": 270, "end_char": 276, "source": "regex", "metadata": {"linked_statute_text": "Bombay PoUce Act", "statute": "Bombay PoUce Act"}}, {"text": "Indian Peul Code", "label": "STATUTE", "start_char": 278, "end_char": 294, "source": "regex", "metadata": {}}, {"text": "s. 5(1)", "label": "PROVISION", "start_char": 300, "end_char": 307, "source": "regex", "metadata": {"linked_statute_text": "Indian Peul Code", "statute": "Indian Peul Code"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 327, "end_char": 355, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161(1)", "label": "PROVISION", "start_char": 512, "end_char": 521, "source": "regex", "metadata": {"linked_statute_text": "Indian Peul Code", "statute": "Indian Peul Code"}}, {"text": "Bombay Police Act 1951", "label": "STATUTE", "start_char": 529, "end_char": 551, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "[1964) 3 S.C.R. 742", "label": "CASE_CITATION", "start_char": 1265, "end_char": 1284, "source": "regex", "metadata": {}}, {"text": "R. M. Hazamai•is", "label": "LAWYER", "start_char": 1628, "end_char": 1644, "source": "ner", "metadata": {"in_sentence": "R. M. Hazamai•is, R. H. Dliebar and B. R. G. K. A char, for the appellant."}}, {"text": "R. H. Dliebar", "label": "LAWYER", "start_char": 1646, "end_char": 1659, "source": "ner", "metadata": {"in_sentence": "R. M. Hazamai•is, R. H. Dliebar and B. R. G. K. A char, for the appellant."}}, {"text": "B. R. G. K. A char", "label": "LAWYER", "start_char": 1664, "end_char": 1682, "source": "ner", "metadata": {"in_sentence": "R. M. Hazamai•is, R. H. Dliebar and B. R. G. K. A char, for the appellant."}}, {"text": "M. S. K. Sastri", "label": "LAWYER", "start_char": 1704, "end_char": 1719, "source": "ner", "metadata": {"in_sentence": "M. S. K. Sastri, for the respondent."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 1786, "end_char": 1795, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. This appeal is brought, by special leave, from the judgment of the High Court of Bombay, Nagpur, Bench dated November II, 1963 in Criminal Appeal no.", "canonical_name": "V. RAMASWAMI"}}, {"text": "High Court of Bombay, Nagpur", "label": "COURT", "start_char": 1867, "end_char": 1895, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRamaswami, J. This appeal is brought, by special leave, from the judgment of the High Court of Bombay, Nagpur, Bench dated November II, 1963 in Criminal Appeal no."}}, {"text": "Narharrao", "label": "RESPONDENT", "start_char": 1980, "end_char": 1989, "source": "ner", "metadata": {"in_sentence": "The respondent Narharrao, a police Head Constable was attached to the Murtizapur Police Station in September, 1962.", "canonical_name": "NARHARRAO"}}, {"text": "ss. 110, 102 and 117", "label": "PROVISION", "start_char": 2118, "end_char": 2138, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Police Act", "label": "STATUTE", "start_char": 2153, "end_char": 2170, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Onkar", "label": "PETITIONER", "start_char": 2198, "end_char": 2203, "source": "ner", "metadata": {"in_sentence": "Onkar and Harihar."}}, {"text": "Harihar", "label": "PETITIONER", "start_char": 2208, "end_char": 2215, "source": "ner", "metadata": {"in_sentence": "Onkar and Harihar."}}, {"text": "Narharrao", "label": "RESPONDENT", "start_char": 2266, "end_char": 2275, "source": "ner", "metadata": {"in_sentence": "It is alleged that Onkar and Harihar approached Narharrao for showing them some favour.", "canonical_name": "NARHARRAO"}}, {"text": "October 14, 1962", "label": "DATE", "start_char": 2473, "end_char": 2489, "source": "ner", "metadata": {"in_sentence": "5 on or about October 14, 1962 and Rs."}}, {"text": "October 19, 1962", "label": "DATE", "start_char": 2513, "end_char": 2529, "source": "ner", "metadata": {"in_sentence": "10 on or about October 19, 1962 as illegal gratification."}}, {"text": "Special Judge, Akola", "label": "COURT", "start_char": 2601, "end_char": 2621, "source": "ner", "metadata": {"in_sentence": "The respondent was tried in the Court of the Special Judge, Akola for accepting bribe under s. 161, Indian Penal Code or alternatively for committing criminal misconduct in the discharge of his duties which is punishable under s. 5(2) read with s. 5(1)(b) of the Prevention of Corruption Act."}}, {"text": "s. 161", "label": "PROVISION", "start_char": 2648, "end_char": 2654, "source": "regex", "metadata": {"linked_statute_text": "Bombay Police Act", "statute": "Bombay Police Act"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 2656, "end_char": 2673, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 2783, "end_char": 2790, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 5(1)(b)", "label": "PROVISION", "start_char": 2801, "end_char": 2811, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 2819, "end_char": 2847, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s.161(1)", "label": "PROVISION", "start_char": 3263, "end_char": 3271, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 3286, "end_char": 3296, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s.161(1)", "label": "PROVISION", "start_char": 3655, "end_char": 3663, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 3678, "end_char": 3688, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161(1)", "label": "PROVISION", "start_char": 3916, "end_char": 3925, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 159", "label": "PROVISION", "start_char": 3979, "end_char": 3990, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 160", "label": "PROVISION", "start_char": 4407, "end_char": 4418, "source": "regex", "metadata": {"statute": null}}, {"text": "ss2", "label": "PROVISION", "start_char": 4785, "end_char": 4788, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 161", "label": "PROVISION", "start_char": 4830, "end_char": 4841, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 5815, "end_char": 5825, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Police Act", "label": "STATUTE", "start_char": 6402, "end_char": 6412, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Police Act", "label": "STATUTE", "start_char": 6954, "end_char": 6964, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 323", "label": "PROVISION", "start_char": 7279, "end_char": 7285, 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{"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 7770, "end_char": 7780, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 341", "label": "PROVISION", "start_char": 7847, "end_char": 7853, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 7861, "end_char": 7878, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 152", "label": "PROVISION", "start_char": 8018, "end_char": 8024, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 426", "label": "PROVISION", "start_char": 8081, "end_char": 8087, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 8095, "end_char": 8112, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161(1)", "label": "PROVISION", "start_char": 8290, "end_char": 8299, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 8314, "end_char": 8324, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161(1)", "label": "PROVISION", "start_char": 8803, "end_char": 8812, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 8827, "end_char": 8837, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161(1)", "label": "PROVISION", "start_char": 9009, "end_char": 9018, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 9033, "end_char": 9043, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 53", "label": "PROVISION", "start_char": 9254, "end_char": 9259, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 9283, "end_char": 9293, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 53", "label": "PROVISION", "start_char": 9366, "end_char": 9371, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras Fire Service", "label": "ORG", "start_char": 9505, "end_char": 9524, "source": "ner", "metadata": {"in_sentence": "It was pointed out in that case that the effect of s. 53 of that Act was that all prosecutions whether against a police officer or a person other than a police officer (e.g. a member of the Madras Fire Service, above the rank of a fireman acting under s. 42 of the Act) must be commenced within three months after the act complained of, if the act is one which has been done or intended to be done under any of the provisions of the Police Act."}}, {"text": "s. 42", "label": "PROVISION", "start_char": 9567, "end_char": 9572, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 9748, "end_char": 9758, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 348 and 331", "label": "PROVISION", "start_char": 9821, "end_char": 9836, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 9844, "end_char": 9861, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Arige Ramanna", "label": "OTHER_PERSON", "start_char": 9894, "end_char": 9907, "source": "ner", "metadata": {"in_sentence": "348 and 331 of the Indian Penal Code for wrongly confining a suspect Arige Ramanna in the course of investigation and causing him injuries."}}, {"text": "ss. 348 and 331", "label": "PROVISION", "start_char": 10020, "end_char": 10035, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 10043, "end_char": 10060, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 10079, "end_char": 10104, "source": "ner", "metadata": {"in_sentence": "348 and 331 of the Indian Penal Code but in appeal the Andhra Pradesh High Court held that the bar under s. 53 of the Police Act applied and the accused were entitled to an acquittal."}}, {"text": "s. 53", "label": "PROVISION", "start_char": 10129, "end_char": 10134, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 10142, "end_char": 10152, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 53", "label": "PROVISION", "start_char": 10286, "end_char": 10291, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 10299, "end_char": 10309, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Police Act", "label": "STATUTE", "start_char": 10594, "end_char": 10604, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "(1964] 3 S.C.R. 742", "label": "CASE_CITATION", "start_char": 10654, "end_char": 10673, "source": "regex", "metadata": {}}, {"text": "s. 161(1)", "label": "PROVISION", "start_char": 11290, "end_char": 11299, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 11315, "end_char": 11325, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161(1)", "label": "PROVISION", "start_char": 11685, "end_char": 11694, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 11709, "end_char": 11719, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1966_3_885_918_EN", "year": 1966, "text": "ARNOLD RODRICKS & ANR.\n\nSTATE OF MAHARASHTRA & ORS.\n\nMarch 14, 1966.\n\n[P. B. GAJENDRAOADKAR, C.J., K. N. WANCHOO, M. HIDAYAc\n\nTULLAH, J.C. SHAH ANDS. M. SIKRI, JJ.J\n\nThe Commissioners of Divislons Act, 1957 (Bom. Act 8 of 1958), u. 3(3) and 3(4)-Validity of-Delegation of powers to State Government whether excessive.\n\nLand Acquisition Act (1 of 1894), s. 3(f)(2) introduced by Bombay Amendment A.ct 35 of 1953-Amended definition of 'public purposl'\n\nwhether valid.\n\nThe oftice of Commissioner was abolished in Bombay State in 1950 but it was revived in 1958 by the Commiosioners of Division Act passed by the Bombay Legislature. The Schedule to the Act amended various enactments for the pnrpose of conferring powers on Commissioners ther• under. Sections 3(3) of the Act gave power to the State Government by\n\nnotification to amend or delete any entry in the Schedule for the purpose of imposing any conditions or restrictions in the exercise of powers and diacharge of duties conferred or imposed on the Commissioner or to withdraw them. Section 3 ( 4) of the Act gave the State Government power to confer and impose on the Commissioner powers and dnties under any other enactment for the time being in force and for that purpose by notification to amend that enactment.\n\nBy virtue of this power the State Government of Bombay by notification conferred certain powers under the Land Acquisition Act on the Commissioner and amended the relevant sections of the Land Acquisition Act accordingly. Under the powers so conferred the Commissioner of Bombay, in 1962, commenced land acquis'tion pr(). ceeding in respect of certain lands owned by the appellants, the alleged purpose of the acquisition being \"development and utilisation of the sa'd lands as an industrial and residential area\".\n\nThe petitioner filed writ peftions under Art. 32 of the Constitution challenging the acquisition proceedings on the grounds, mainly, that ( i) s. 3 ( 3) and 3 ( 4) of the Commissioners Act constituted excessive delegation of power to the State Government and amounted to abdication of its functions by the State Legislation and that (ii) definition of 'public purpose' as amendeJ by the Bombay Legislature by introducing s. 3(f)(2) in the Land Acquisition Ad was ultra vires.\n\nHELD: Per Gajendragadkar, C.J., Hidayatullah and Sikri, JJ.-(1) The object of s. 3(3) of the Commissioners Act is two fold; first to enable the Government to impose any conditions or restr\"ctions on the exercise of powers and discharge of duties on Commissioners and secondly to withdraw them in case it is felt that the Commissioner should not exercise these powers. There can be no objection to this since the State Government is\n\nin charge of the administration and the whole object of the Commi5'ioners Act is to enable it to run the administration as smoothly as possible. The law\n\nwhich the Commissioners or the State Government or the other author'ties have to administer remain& the same; it is only the authority that is changed.\n\n[897 E..OJ\n\n<ii) It cannot be said that the powers conferred under s. 3 ( 3) and 3(4) on the State Government are unguided. Sections 6 and 7 of the Act 885\n\n88 6 SUP.11.ElrU!\n\nCOU.11.T REP-Oii.TS\n\n( 1966) 3 S.C.R.\n\nindicate the kinds of powers which may be conferred on the Commiuioner.\n\nFurther the very nature of the office held by the Commissioner and 1ho duties performed by him up to 1950 would show that it is only tho dutieo Of the Slate Government and of officers of equivalent rank discharging revenue and executive duties which would be conferred on the Commislli<>neT.\n\nThero can be no difference in principle between the Slate Lep lature insening a section in an Act enabling the Stale Government to delegate its power to another authority and the Legislature in viow of the change in tho administrative set-up conferring power on the State Oovomment 10 confer not only ill! own duties on Commissionera but also of other officers performing executive and revenue duties. [895 C-B]\n\n(ill) The State Legislature cannot be said to have abdicated its powers in favour of the executi\\\"e for it has laid down the legislative policy and wisely left it to the State Government to reorganise the administration consequent on the setting up of Commissioners Divis:ons. The State Government is after all in charge of the administration and it knows specially in view of its previous experience what pov•ers of existing authoruics including itself can suitably be c0nferrcd on the Commissioners. [897 G-\n\n898AJ\n\n(iv) It was not necessary to get the Prelident's assent for the nolilication amending the Land Acquisition Act bccal>Se the amendment of the Act became effective by virtue of the Commissioners Act which had\n\nreceived the IWelll of the President, and not by virtue of tho noliftcation. (898 CJ\n\n(v) 11 was not nec..,.ary to decide the question as 10 the validity of •. (f) (2) of the Land Acquisition Act as enacted by the Bombay State Legislature because the purpose for which the land were acquired in the present case was a 'public purpooe' as defined in the Land Acquisition Act u it stood before the amendment made by the Bombay Legislature, lllld it w .. not necessary for the respondents 10 rely on the amendment to susta'n in the notification.\n\nPublic purpose varies with the time and the prevailiag conditions in towns like Bombay are such that it imperative that th< State should do all it can to increase the availability of residential and industrial sites.\n\nThe welfare of a large section of the community is a 'public purpose'. [899 D-E; 902 EJ\n\n(\\i) There is no law which requires a scheme lo be l'repared before issuing notificafons under ss. 4 and 6 of the Land Acqui•it1on Act. [Duirability of preparing such a scheme before disposal of sites sugge.ted].\n\n{903 DJ\n\nCase law referred to.\n\nPer Wanchoo and Shah JJ. (dissenting).-(i) The amendment introduced by s. 3(f)(2) in the definition of 'public purpose' was within the concept of public purpose in Art. 32(2) of the Consutution and could not be stmclt down as u/1ra vire6. (911 BJ\n\n(ii) By enacting s. 3(3) of the Com.misaioners Act the State Legislature G in effect says that though it ooosiders that the Commissioner should ba\\\"e certain powers it bas conferred on him in the Schedule, the State Government may withdraw those powers.\n\nThis is not a provision for delegated legislat:on but a transfer by the Legislature of its own power to make law to the executive. Further. if it can be considered to he conferment of power of delegated legi•lation it suffers from the vice of exc..,.ive delegation inasmuch as ii g;,-es a power to the executive to the extent of repealing a part of the law made by the lcgislaluro [912 G-913 BJ H\n\n(iii) The language of s. 3(4) is of the widest amplitude and gives blanket power to the Stale Government to amend any enactment which\n\n• c\n\nF ..\n\nG -\n\nRODRICKS v. MAHARASHTRA (Sikri, /.) 887\n\nmay be in force for the time being in the State by making nec\"\"8ary entrieo in the Schedule.\n\nThe provision cannot be read to mean that it authorises the State Government to delegate only its executive powers and duties under other enactments besides those mentioned in the Schedule to the Commissioner by the State Legislation. It is not a case of providing merely for delegated legislation properly so-called but amounts to comple!e transfer of its power of legislation by the legislature in this matter to the State Governmen1.\n\nSub-s. (4) was therefore ultra vires and sub-s. (5) which is cons\"'!uential on it must fall with it. (913 C-D, H; 915 H-9168]\n\n(iv) As the proceedings under the Land Acquisition Act were taken by the Commissioner by powers derived from a notification under s. 3 ( 4) of the Commissioners Act which is ultra vires the said proceedings must be quashed. (918 A]\n\nCase law referred to.\n\nORIGINAL JURISDICTION : Writ Petitions Nos. 66 and 146 of 1965.\n\nPetitions under Art. 32 of the Constitution of India for the enforcement of fundamental rights.\n\nNiren De, Additional Solicitor-Genera/, Malcolm Pereira, B. R.\n\nAgarwala, G. L. Sanghi and H. K. Puri, for the petitioners (in both the petitons).\n\nM. C. Setalvad, N. S. Bindra and B. R. G. K. Achar, for the respondents (in both the petitfons).\n\nThe judgment of GAJENDRAGADKAR, c. J. HIDAYATULLAH and SIKRI, JJ, was delivered by SIKRI J. The dissenting opinion of WANCHOO AND SHAH JJ. was delivered by WANCHOO, J.\n\nSikri, J. These two petitions under Art. 32 of the Constitution raise substantially the same questions of law and were heard together and may conveniently be disposed of together. It would be convenient to give a few facts in Writ Petition No. 66 of 1965.\n\nThe petitioners who are citizens of India are owners of some land in Greater Bombay in the South Salsetta Taluka in the Bombay Suburban District. There are four respondents to the petition; the first is the State of Maharashtra, the second the Commissioner, Bombay Division, the third the Special Land Acquisition Officer and the fourth the Maharashtra Industrial Development Corporation, established by notification under the Maharashtra Industrial Development Act, 1961. The predecessor in office of the second respondent, by notification dated March 30, 1962, published in the Maharashtra Government Gazette, purporting to act under s. 4 of the Land Acquisition Act, 1894 (I of 1894)-hereinafter referred to as the Act-notified that the land belonging to the petitioners was likely to be needed \"for a public purpose, viz., for development\n\nSUPR!ME COURT REPORTS\n\n(1966] 3 S.C.R.\n\nand utilisation of the said lands as an industrial and residential area\".\n\nBy the said notification the third respondent was appointed to perform the unctions of the Collector under s. 5-A of the Act in respect of the said lands. Pursuant to the said notification the third respondent issued a notification under s. 4( 1) of the Act calling upon the petitioners to file their objections to the acquisition or the said lands under the Act. The petitioners filed their statement of objections and took the objection that the purpose for which the lands were required, viz., development and utilisation of the said lands as an industrial and residential area, was vague and was not genuinely or properly a public purpose. The petitioners further pointed out that the said lands and the contiguous lands of the petitioners formed a compact area of land situate on the Central Salsette Railway Track and the said area could by reason of its location be easily and without in the least degree adversely affecting the scheme of the acquisition be excluded therefrom and should be released from acquisition accordingly. The first petitioner, Arnold Rodricks, pointed out in his Jetter dated October 5, I 963, addressed to the Assistant Secretary to the Government of Maharashtra, that the Government had already acquired about 3 acres of his land for University Campus in addition to his other lands acquired earlier by the State Government and that the said lands and the land bearing Survey No. 330 Hissa No. 2(part) and Survey No. 313 Hissa No. 14 were the only lands left with the petitioners and that the petitioners required the same for their own residential home. On October 7, 1963, the second respondent, being satisfied after . considering the report of the Collector under sub-s. (2) of s. 5-A of Act that the said lands were needed to be acquired at the public expense for a public purpose, declared under the provisions of s. 6 of the Act that the lands were required for the public purpose of \"development and utilisation of the said lands as industrial and residential area.\" After the issue of the notification under s. 6, usual notices under s. 9, els. (3) and (4) were issued by the third respondent and pursuant to these notices the petitioners filed their statement of claim for compensation with the third respondent under protest and without prejudice to their rights and contentions. In the petition, the notifications dated March 30, 1962 and October 7,\n\nI 963, and the acquisition proceedings and the enquiries purpoed to be held under s. 5A and s. 11 of the Act arc challenged as being illegal, invalid and inoperative in law and without and/or in excess of jurisdiction, etc., on various grounds.\n\nBefore we mention the points urged before us it is nsary to mention that the Bombay Legislature amended the dcfimllo_n. of the expression \"public purpose\" ins. 3 of the Act, and the dcfimtton 'in the Act as amended by the Bombay Legislature reads as fol ; lows :-\n\n\"(0 the expression \"Public purpose\" includes\n\n1 • =- ~\n\n• c\n\n•• 1 - H\n\nRODRICKS v. MAHARASHTRA (Sikri, J.) 889\n\n(I) the provision of village sites in districts in which the Appropriate Government shall have declared by notification in the official Gazette that it is customary for the Government to make such provision and a housing scheme as defined in the Land Acquisition (Bombay Amendment) Act, 1948; and\n\n(2) the acquisition of land for purposes of the development of areas from public revenues or some fund controlled or managed by a local authority and subsequent disposal thereof in whole or in part by lease, assignment, or sale, with the object of securing further development.\"\n\nThe validity of s. 3(f)(2) above has been questioned before us.\n\nFurther, the Act was amended, by virtue of notification issued under s.3 (4)oftheBombay Commissioners of Divisions Act, 19S7 (Bombay Act 8 of 19S8)-which for the sake of brevity will be referred to as the Commissioners Act. The notification had amended ss. 3A, 4, SA, 6, 7 and 17 of the Act as follows :\n\n\"!. In section 3A,\n\n(i) after the words \"State Government\", where they occur for the first time, the words \"or the Commissioner\" shall be inserted;\n\n(ii) after the words \"by the State Government in this\n\nbehalf\" the words \"or, as the case may be, any officer authorised by the Commissioner\" shall be inserted.\n\n2. In section 4-\n\n(i) in sub-section (1), after the words, \"appropriate\n\nGovernment\" the words \"or the Commissioner\" shall be inserted;\n\n(ii) in sub-section (2), after the words, \"such Government\" the words \"or, as the case may be, by the Commissioner\" shall be inserted.\n\n3. In section SA, in sub-section (2) after the words \"appropriate Government\", where they occur at two pla= the words \"or, as the case may be, of the Commissioner\" iihall be inserted.\n\n4. In Section 6-\n\n(i) in sub-section (1)-\n\n(a) after the words \"appropriate Government\"\n\nthe words \"or, as the case may be, the Commissioner\" shall be inserted; M12iup. Cl/66-14\n\n89 ll SUPRl!ME COUllT\n\nRBPORTS\n\n[1966] 3 S.C.R.\n\n, h) after the words \"its orders\" the words \"or.\n\nas the case may be, under the signature of the Commissioner\" shall be inserted;\n\n(ii) in sub-section (3), after the words \"appropriate\n\nGovernment\" the words \"or, as the case may be. the Commissioner\" shall be inserted.\n\n5. In section 7, after the words \"in thi, behalf\" the words \"or, as the case may be, the Commissioner\" shall be inserted,\n\n6. In section 17 -\n\n(i) in sub-section (I), after the words \"appropriate c Government\" the words \"or the Commissioner\" shall be i nsertcd.\n\n(ii) in sub-section (2)\n\n(u) after the words \"the State Government\" the\n\nwords \"or the Commissioner\" shall be inserted; D\n\nlb) after the words \"appropriate Government\"\n\nthe words \"or, as the case may be, of the Commissioner\" shall be inserted;\n\n(iii) in sub-section (4)-·\n\n(a) after the words \"appropriate Government\"\n\nwhere they occur at two places, the words \"or the case may be, of the Commissioner\"\n\nshall be inserted;\n\n(b) for the words \"it does so direct\" the words\n\n\"it or he does so direct\" shall be substituted.\"\n\nMr. Niren De, the learned Additional Solicitor-General appearing on be)lalf of the petitioners, raised four points before us,\n\n(I) That the declarations under s.~. 4 and 6 of the Act are essential features or are related to essential legislative policies and as such ss. 4 and 6 can only be amended by the legislature;\n\n(2) That s. 3( 4) of the Commissioners Act suffers from excessive delegation;\n\n(3) That s. 3( 4) of the Commissioners Act is an abdication of the powers of the legislature in favour of the executive; and\n\n(4) Amendment of the Act by a notification is a law which requires assent of the President under arts. 31(2) and art. 254 of the Coastitution, and the assent not having been obtained, the notification is bad.\n\n• --.\n\nIt.\n\nRODRICKS V. MAHARASHTRA ( Sikri, J.) 891\n\nIt would be convenient to take the first three points together because in substance they raise the point that s. 3( 4) is bad, because the legislature should have performed the functions entrusted to the State Government under s. 3(4) of the Commissioners Act. Mr.\n\nNiren De contends that from 1857 onwards the Indian statutes had made it the duty of the State Government to decide whether a land was likely to be needed for a public purpose or not and once the Government was satisfied the declaration was made conclusive. He says that this is an essential legislative feature of the Land Acquisition Act and the Bombay Legislature should have directly amended the Land Acquisition Act and not empowered the State Government to do so. He says that the State Legislature has not really decided that this essential legislative feature should be changed and it is incompetent to confer that power on the State Government. He further points out that there never has been any power of delegation in the Land Acquisition Act !since 1857. He says that it is well-settled that a legislature cannot empower an executive authority to change an Act in any essential features. He further urges that the Commissioners Act does not give any guidance to the State Government as to which Acts should be amended or not and powers of which officers should be taken away and conferred on the Commissioners. He urges that the language is wide enough even to enable the judicial functions of courts under the Civil Procedure Code and Criminal Procedure Code to be conferred on the Commissioners.\n\nMr. Setalvad, who appears on behalf of the respondents, says that what you have to consider is the legislative policy underlying the Commissioners Act and not the Land Acquisition Act.\n\nHe says that there is enough guidance in the Commissioners Act and in the history of the legislation to enable the State Government to decide what powers and duties should be conferred on the Commissioners. He further says that the State Government being in charge of the administration of the State knows what duties can appropriately be conferred on the Commissioners. He points out that the institution of the Commissioners is not a new thing; it was in existence before and as the Government found it necessary to revive the institution of Commissioners instead of amending each act separately and conferring powers on the State Government to delegate its functions, it passed a comprehensive legislation enabling the State Government to do it. He says that it must be remembered that the Commissioners are revenue and executive officers and there is no question of conferring powers on them under the Criminal Procedure Code or the Civil Procedure Code.\n\nLet us then first examine the scheme of the Commissioners Act and the history of the legislation. The preamble of the Com-. missioners Act reads as follows :\n\n:s92\n\nSUPREME COURT REPORTS\n\n(1966] 3 S.C.R.\n\n\"Whereas it is expedient to provide for the offices of Commissioners of divisions in the State of Bombay, for prescribing their powers and duties and to make provisions for matters consequent on the provision for such offices and for certain other matters.\"\n\nThe \"Commissioner\" is defined to mean \"the Commissioner of a division appointed under the law relating to land revenue as amended by the Schedule to this Act.\" The Bombay Land Revenue Code, 1879, has been amended by the Schedule and we may notices. 6A inserted by the Schedule. Section 6A is as follows :\n\n\"6. (I) The Commissioners of divisions shall be appointed by the State Government.\n\n(2) The Commissioners shall exercise the powers and discharge the duties conferred and imposed on a Commissioner under this Act or under any law for the time being in force, and so far as is consistent therewith all such other powers or duties of appeal, superintendence and control within their respective divisions, and over the officers subordinate to them as may from time to time be prescribed by the State Government.\n\n(3) The Commissioners shall also, subject to the control and the general or special orders of the State Government, exercise such powers and discharge such duties,\n\nas the State Government may confer or impose on them E for the purpose only of carryimg out the provisions of any law for the time being in force, and so far as is consistent therewith.\" It will be noticed that the Commissioner is enabled by sub-s.6A-\n\n(2) to exercise powers and discharge duties conferred not only by the Bombay Land Revenue Code 1879 but any other law for tile F time being in force. \"Division\" is defined to mean the territories formed into a division under the Bombay Land Revenue Code, 1879, or under that Code in its application to the Kutch and Saurashtra areas of the State of Bombay, or under the Madhya Pradesh Land Revenue Code, 1954, or under the Hyderabad Land Revenue Act. \"Divisional officer\" means an officer appointed as such, G immediately before the commencement of the Commissioners Act, under the provisions of-\n\n(i) section 5 of the Bombay Land Revenue Code, 1879, or that section of the Code in its application to the Kutch area of the State of Bombay,\n\n(ii) Section 5 of the said Code in its application to the Saurashtra area of the State of Bombay and read with the Government Notification in the Legal Department\n\n• F\n\nRODRICKS v. MAilA&ASHTllA (Sikri, /.)\n\nNo. 25398/B, dated 1st November, 1956, issued under section 122 of the States Reorganisation Act, 1956,\n\n(iii) section 9-A of the Madhya Pradesh Land Revenue Code, 1954, read with Government Notification in the Revenue Department No.RVA.1556-R, dated 1st November 1956, or. ,\n\n(iv) section 4 of the Hyderabad Land Revenue Act.\n\n893'\n\n\"Existing law\" is defined as \"any enactment of a Legislature or other competent authority in relation to matters specified in List& II and III in the Seventh Schedule to the Constitution in force in any part of the State immediately before the commencement of this Act and includes any rule, bye-law, regulation, order, notification, scheme, form or other instrument having the force of law made, prescribed or issued under any such enactment.\" Section 3 mayj, be set out in full;\n\n\"3. (1) For the purposes of constituting offices of commissioners of divisions and conferring powers and imposing duties on Commissioners and for certain other purposes, the enactments specified in column 1 of the Schedule to this Act shall be amended in the manner and to the extent specified in column 2 thereof .\n\n(2) The Commissioner of a division, appointed under the law relating to land revenue as amended by the said Schedule, shall exercise the powers and discharge the duties conferred and imposed on the Commissioner by any law for the time being in force, including the enactments referred to in sub-section (1) as amended by the said Schedule.\n\n(3) The State Government may by notification in the Official Gazette amend or delete any entry in the Schedule for the purpose of imposing any conditions or restrictions on the exercise of powers and discharge of duties conferred or imposed on the Commissioner or withdrawing them, as the case may be, and the Schedule shall be amended accordingly.\n\n(4) The State Government may confer and impose on the Commissioner powers and duties under any other enactment for the time being in force and for that purpose may, by a notification in the Official Gazette, add to or specify in the Schedule the necessary adaptations and modifications in that enactment by way of amendment; and thereupon-\n\n(a) every such enactment shall accordingly be amended and have effect subject to the adaptations and modifications so made, and\n\n894 SUPRl!ME COURT llEPORTS\n\n\n(b) the Schedule to this Act shall be deemed to be amended by the inclusion therein of the said provision for amending the enactment.\"\n\nSection 4 repeals the Bombay Commissioners (Abolition of Office) Act, 1950, and the Central Provinces and Berar Commissioners (Construction of References) Act, 1948. l11e Bombay Commissioners (Abolition of Office) Act, 1950 (Born. Act 28 of 1950) had abolished the office of the Commissioner and further provided that wherever a reference was to the Commissioner, the rcCerencc should be read as a reference to the State Government or te such authority as the State Government may by general or special order appoint. The Central Provinces and Berar Commissioners (Construction of References) Act, 1948 (61 of 1948) had similarly abolished the Commissioners Divisions of Nagpur, Jubbulpore, Chhatisgarh and Berar, and had provided that the appointment of Commissioners to these Divisions shall cease. By s. 4 it was further provided that \"all enactments and all notifications, orders, rules and byelaws issued, made or prescribed under any enactment which immediately before the commencement of this Act were in force shall be construed as if references therein to the Commissioner were references to the State Government or to such authority as the State Government may, by notification, appoint.\"\n\nSections 5, 6, 7 and 8 of the Commissioners Act may also be set out in full :\n\n\"5. If at the commencement of this Act, any legal proceedings are pending to which a Divisional Officer or Director of Local Authorities is a party, the Commissioner shall be substituted for the Divisional Officer or the Director of Local Authorities in the said proceedings.\n\n6. Subject to the provisions made in the Schedule, all existing laws shall, unless the context otherwise requires, be construed as if references therein to the Divisional Officer, or, as the case may be, to the Director of Local Authorities were references to the Commissioner.\n\n7. All instruments or documents executed or made before the commencement of this Act under or with reference to any existing law or any enactment specified in the Schedule shall, unless the context otherwise requires,\n\nbe construed as if references therein to the Divisional Officer or the Director of Local Authorities were references to the Commissioner.\n\nAll proceedings including proceedings by way of appeals, revision or review pending under any existing law before the State Government or a Divisional Officer or\n\n. -.\n\nH ·-\n\nRODRICKS v. MAHARASHTRA (Sikri, J.)\n\nDirector of Local Authorities or any other officer or authority immediately before the commencement of this Act shall, where disposal of the proceedings falls within the purview of the powers and duties of the Commissioner, be transferred to the Commissioner for disposal according to Jaw.\"\n\nIt seems to us that the underlying policy or the essential legislative feature of the Commissioners Act is to reintroduce the old offices of Commissioners and confer powers and duties on them which could appropriately be discharged by them. The Legislature has no doubt left it to the State Government to decide whether any duties imposed on it or some of the auhorities should now under the new administrative set up system be discharged by the Commissioners. But the Legislature has definitely given an indication of the kinds of powers that may be conferred on them, in ss. 6 and 7.\n\nFurther, the very nature of the office held by a Commissioner and the duties performed by him up to 1950 would show that it is only the duties of the State Government and of officers of equivalent rank discharging revenue and executive duties which would be conferred on the Commissioner. We see no difference in principle between the State Legislature inserting a section in an Act enablmg the State Government to delegate its power to another authority and the Legislature in view of the change in the administrative set up conferring powers on the State Government to confer not only its own duties on Commissioners but also of other officers performing executive and revenue duties.\n\nThis Court upheld the validity of s. 4 of the Essential Supplies (Temporary Powers) Act, 1946 (24 of 1946) in Harishankar Bag/a v. The State of Madhya Pradesh(!). Section 4 was in the following terms:\n\n\"4. The Central Government may by notified order direct that the power to make orders under section 3 shall in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by-\n\n(a) such officer or authority subordinate to the Central Government, or\n\n(b) such State Government or such officer or authority subordinate to a State Government as may be specified in the direction.\"\n\nThe Court observed as follows:-\n\n\"Section 4 of the Act was ttacked on the ground that it empowers the Central Government to delegate its own\n\n(I) [1955] l S.C.R. 380 at pp. 389·390.\n\n896 SUPRBMB COUllT llBPOllTS\n\n[1966) 3 S.C.R.\n\npower to make orders under section 3 to any officer or authority subordinate to it or the Provincial Government or to any officer or authority subordinate to the Provincial Government as specified in the direction given by the Central Government. In other words, the delegate has been authorised to further delegate its powers in respect of the exercise of the powers of section 3. Mr. Umrigar contended that it was for the Legislature itself to specify the particular authorities or officers who could exercise power under section 3 and it was not open to the Legislature to empower the Central Government to say what officer or authority could exercise the power. Reference in this connection was made to two decisions of the Supreme Court of the United States of America-Panama Refining Co. v.\n\nRyan(') and Schechter v. United States(2). In both these cases it was held that so long as the policy is laid down and a standard established by a statute, no unconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislatureis to apply. These decisions in our judgment do not help the contention of Mr. Umrigar as we think that section 4 enumerates the classes of persons to whom the power could be delegated or sub-delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself. The decision of their Lordships of the Privy Council in Shannon's case(') completely negatives the contention raised regarding the invalidity of section 4. In that case the Lt-Governor in Council was given power to vest in a marketing board the powers conferred by section 4A(d) of the Natural Products Marketing (British Columbia) Act, 1936. The attack on the act was that without constitutional authority it delegated legislative power to the Lt-Governor in Council.\n\nThis contention was answered by their Lordships in these terms: \"The third objection is that it is not within the powers of the Provincial Legislature to delegate socalled legislative powers to the Lt-Governor in Council, or to give him powers of further delegation. This objection appears to their Lordships subversive of the rights which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects in relation to whlch the Constitution has granted legislative powers.\n\nWithin its appointed sphere the Provincial Legislature is as supreme as any other Parliament; and it is unnecessary to ------ -----\n\n111 mm. mm.\n\n(3) !l938J A.C. 708.\n\n--.\n\n'(.\n\nRODRICKS v. MAHARASHTRA (Sikri, J.)\n\ntry to enumerate the innumerable occasions on which Legislatures, Provincial, Dominion and Imperial, have entrusted various persons and bodies with similar powers to those contained in this Act.\" \"\n\n89T\n\nIt would be noticed that s. 4 of the Essential Supplies (Temporary Powers) Act, 1946, left it to the Central Government to decide three things; (I) the matters which can be delegated to 'the officers or authorities subordinate, (2) the conditions subject to which the power to make orders under s. 3 be exercised, and (3) the officers who would exercise the power to make orders under s. 3. In the present case, the Legislature has specified that it is only the Commissioners to whom powers in an act can be delegated.\n\nIf a section similar to sub-s. ( 4) of s. 3 of the Commissioners Act had been inserted in every Act relating to matters in Lists II and III, it would have been difficult to distinguish the decision in Bagla's(I) case, except on the ground that the State Government is also enabled to confer powers of some other authorities on Commissioners.\n\nThis in our opinion does not make any difference because the Bombay Act 28 of 1950 had also enabled State Government to confer powers of Commissioners on some other authorities.\n\nWe may mention that at one stage of the arguments it was contended that sub-s. (3) of s. 3 of the Commissioners Act enabled the State Government to amend the Schedule and this showed the extent of delegation made to the State Government. But, in our opinion, the object of sub-s. (3) is two fold; first to enable the Government to impose any conditions or restrictions on the exercise of powers and discharge of duties on the <::ommissioners, and secondly, to withdraw them in case it is felt that the Commissioners should not exercise those powers. We see no objection in entrusting this function to the State Government because, as mentioned above, the State Government is in charge of the administration and the whole object of the Commissioners Act is to enable it to run the administration as smoothly as possible.\n\nAfter all, the law which the Commissioners or the State Govern: ment or the other authorities have to administer remains the same; it is only the authority that is changed.\n\nIt is really not necessary to consider the other cases cited before us because the general principles are quite clear and it is only in their application that difficulties arise. We have come to the conclusion that the Legislature has not abdicated itself in favour of the executive but it has laid down essential legislative policy and wisely left it to the State Government to reorganise the administration consequent on the setting up of Commissioners Division. The State Government is after all in charge of administration and it knows, specially in view of its previous experience, what powers•.\n\n(l) [1955] l S.C.R. 380.\n\nSL'PREME COURT REPORTS\n\n\nof existing authorities including itself can suitably be conferred on A the Commissioners.\n\nWe may mention that the Bomb y High Court has in two decisions (Ganesh Varaya11 v. Commissioner Nagpur Division, Nagpur(') and Sadruddin Suleman Jha1•cri v.\n\nJ. II.\n\nPatwardhan(2) upheld the validity of the Commissioners Act. ·-.\n\nThis takes us to the fourth point, namely, >l'hether the assent of the Prt!Sident was necessary to the notification amending the Act.\n\nIt is common ground that the Commissioners Act received assent of the President. The question that is raised is whether it is necessary that assent of the President should be obtained for every notification issued under the Commissioners Act which has the effect of . amending any legislation in respect of the matters in the concurrent List, i.e. List III. In our opinion, it is not necessary because the .amendment of the Act became effective by virtue of the Commissioners Act and 'not by virtue of the notification. This Court was faced with a similar problem in Harisha11ker Bag/a and Another v.\n\nThe Stat<' of Madhya Pradt>.th(l) and repelled a similar contention , in the following words:\n\n\"Conceding, however, for the sake of argument that lo the extent of a repugnancy between an order made under section 3 and the provisions of an existing law, t, o the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any Act of the delegate, but the repeal is by the legislative Act of the Parliament itself.\n\nBy enacting section 6 Parliament itself has declared that an order made under section 3 shall have effect notwithstanding any inconsistency in this order with any enactment other than this Act. This is not a declaration made by the delegate hut the Legislature itself has declared its will that way in section 6. The abrogation or the implied repeal is by force of the legislative declaration contained in section 6 and is not by force -of the order made by the delegate under section 3. The power of the delegate is only to make an order under section 3.\n\nOnce the delegate has made that order iL~ power is •exhausted. Section 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act.\"\n\nIn our opinion the above reasoning applies to the facts of this case and the Commissioners Act having received the assent of the President it is not necessary that some further assent of the President should be given to a notification. We may mention that we are assu- -----------\n\n(I) [1964} 66 D.L.R. 807.\n\n(2) l.L.R. [1965j Bom. 394.\n\n(3) [t955] t S.C.R. 380 at p. 392.\n\n'< .\n\nRODRICKS v. MAHARASHTRA (Sikri, J.) 899\n\nA ming and not laying down that it is possible to obtain the assent of the President under the Constitution to the issue of a notification.\n\nIn conclusion we see no force in the contentions raised by Mr.\n\nDe on behalf of the petitioners and this takes us to the next petition (W.P. No. 146 of 196S) in which Mr. Pereira hasraised some additional points. He raised three points before us; (1) that no hearing was given to the petitioner under s. SA of the Act; (2) that the declaration under s. 6 is a colourable exercise of power and(3) thats. 3(f)\n\n(2) of the Act, as amended in Bombay, is void and there is no public purpose involved in issuing the notification under s. 6 of the Act.\n\nThere is no force in the first point because we find, on looking at the record, that the petitioners raised no objections to the acquisition and they never wanted any hearing on this point. As they did not object to the acquisition, it is difficult to see what enquiries had to be made under s. SA.\n\nWe may next take up the question of the validity of s. 3(f)(2).\n\nIn our view it is not necessary to decide this point because we have come to the conclusion that the notifications issued under ss. 4 and 6 specified a public purpose; the purpose specified was \"development and utilisation of the said lands as industrial and residential areas.\" In our opinion this purpose is a public purpose within the Land Acquisition Act as it stood before the amendment made by the Bombay Legislature and it is not necessary for the respondents to rely on the amendment to sustain the notification. This Court in State of Bombay v. Bhanji Munji(') upheld the requisitioning of premises for housing a person having no housing accommodation on the ground that this was a public purpose. This Court observed at page 783 as follows:\n\n\"In the present set of cases there is proof of a public purpose. It is given in the affidavits made on behalf of the State and in the subsequent orders just quoted, namely to house the homeless. At that time the housing situation in Bombay was acute, largely due to the influx of refugees.\n\nQuestions of public decency, public morale, pµblic health and .the temptation to lawlessness and crime, which such a situation brings in its train, at once arose; and the public conscience was aroused on the ground of plain humanity.\n\nA race of proprietors in the shape of rapacious landlords who thrived on the misery of those who could find no decent roof over their heads sprang.into being. Even the efficiency of the administration was threatened because Government servants could not find proper accommodation. Milder efforts to cope with the evil proved ineffective. It was necessary therefore for Government take more drastic\n\n(!) [1955] I S.C.R. 777.\n\n900 SUPRl!Jdl! CX>UJlT llBPOB.TS\n\n(1966] 3 S.C.R.\n\nsteps and in doing so they acted for the public weal. There A was consequently a clear public purpose and an undoubted public benefit.\" In the affidavit of S. R. Naik, Special Land Acquisition Officer, it is stated that the State Government had set up a study group to consider and recommend on various matters relating to congestion in the Island of Bombay. The Study group, inter a/ia, found :\n\n\"The said Study Group found as a result of its inquiry that there had been a phenomenal increase in the population of the Island of Bombay from 1948 to 1958 during which period the population had shot up from 14.89 lakhs in 1941 to an estimated 31 lakhs at the close of 1958. It found that this enormo4s increase in population had resulted in congestion of traffic, deficiency in open spaces and play fields for schools, overcrowding in trains, overcrowding in houses, creation of slums etc., and that the increased population had also constituted an increasingly intolerable burden on the sanitary circumstances and public utilities of the Island. According to the estimate of the Study Group based on the formula adopted by the Director General of Health Services of the Government of India the population of Greater Bombay would increase to a total staggering figure of 75 lakhs by the year 1958.\n\nThe Study Group also found that just as there was a heavy concentration of population in Greater Bombay in a small area of 169 sq. miles there was also a concentration of industries in Greater Bombay. It found that of the total number of 11,539 registered factories in the State of Maharashtra as in 1958 Greater Bombay had 3,539 registered factories which meant that one-third of the total number of factories in the State of Maharashtra were in Greater Bombay alone. Of the total number of factories in Greater Bombay as many as 76 % were located in the Island ofBombay which admeasures only 26.19 sq. miles out of the total Greater Bombay area of 169 sq. miles.\n\nAll these factories in Greater Bombay employ 44 % of the to till number of factory workers in the State and 85 % of the factory workers in Greater Bombay were concentrated within the Island of Bombay alone. All these factors gave rise to a number of problems including the problem of traffic housing accommodation and deterioration of public ntility services.\n\nAs regards housing the Study Group observed that in the year 1958 there were about 57,37,000 tenements in Greater Bombay of all categories including a large portion\n\n-..\n\nG •\n\nRODRICKS v. MAHARASHTRA (Sikri, !.)\n\nof single room tenements. At the rate of five persons to a tenement the Study Group observed that the then existing tenements were only enough for 28 lakhs persons leaving 15 lakhs persons to be still provided with housing accommodation. The growth in population and the concentration of the population in a small area also led to the deterioration of public utility services as observed by the Study Group. The Study Group suggested a number of measures for relieving the congestion of population and industries in the Greater Bombay including the shifting of industries, the establishment of industrial estates, the establishment of industries in the suburbs, the development of the suburbs, reclamation of land and reclamation of salt pans.\"\n\nIn our opinion, on these facts it cannot be held that the impugned notifications were issued to subserve not a public purpose but some private purpose. It was observed by this Court in Babu Barkva Thakur v. The State Bombay;(')\n\n\"It has been recognised by this Court in the case of The State of Bombay v. Bhanji Munji and Another(2) that providing housing accommodation to the homeless is a public purpose. In an industrial concern employing a large number of workmen away from their homes it is a social necessity that there should be proper housing accommodation available for such workmen. Where a larger section of the community is concerned, its welfare is a matter of public concern.\"\n\nIn Pandit Jhandu Lal v. The State of Punjab(>) it was observed at page 467 :\n\n\"There is also no doubt that the structures to be made on the land would benefit the members of the Co-operative Society. But, the private benefit of a large number of industrial workers becomes public benefit within the meaning of the Land Acquisition Act.\" It was held in that case that acquisition of building sites for residential houses for industrial labourers was for a public purpose even apart from s. 17(2) of the Act, as amended by the Land Acquisition (Punjab Amendment) Act.\n\nIn Smt. Somawanti v.\n\nThe State of Punjab(4) it was observed:\n\n\"Broadly speaking the expression \"public purpose\" would, however, include a purpose in which the general\n\n(1) (1961] 1 S.C.R 128 at p. 137.\n\n\n(3) (1961 J 2 S.C.R. 459.\n\n(4) A.I.R. 1>63 S.C. 151\n\n\n(1966] 3 S.C.R.\n\ninterest of the communily as opposed lo the particular interest of individuals is directly and vitally concerned.\"\n\nIt was further observed at p. 163 :\n\n\"Public purpose is bound to vary with the times and the prevailing conditions in a given locality and therefore it would not be a practical proposition even to attempt a comprehensive definition.\" It was urged before us that 1he Slate Governmenl was nol entitled to acquire property from A and give it to B.\n\nReliance was placed on the decision of 1he Supreme Judicial Court of Massachusclls (204 Mass. 607).\n\nBut as pointed out by this Court, public purpose varies with the limes and the prevailing conditions in localilies, and in some towns like Bombay the conditions are such tltat it is imperalive that the Slale should do all it can to increase the availability of residential and industrial sites. It is true that these residential and induslrial sites will be ultimately allotted to members of the public and they would get individual benefit, but it is in the interest of the general community that these members of the public should be ab!e lo have sites to put up residential houses and sites to put up factories. The main idea in issuing the impugned notifications was not to think of the private comfort or advantage of the members of the public but the general public good. At any rate, as pointed out in Babu Barkya Thakur\n\nv. The State of Bombay(') a very large section of the community is concerned and its welfare is a matter of public concern. In our view the welfare of a large proportion of persons living in Bombay is a matter of public concern and the notifications served to enhance the welfare of this section of the community and this is public purpose. In conclusion we hold that the notifications are valid and cannot be impugned on the ground that they were not issued for any public purpose.\n\nMr. Pereira then urged that the notifications were colourable.\n\nWe are not able to appreciate how the notifications are serving any collateral object. He said that he used the word \"colourable\" in 1he sense used by this Court in Mst. Somawanti v. State of Punjab(?)\n\nMudholkar, J., observed as follows :\n\n\"If the purpose for which the land is being acquired by the State is within the legislative competence of the State the declration of the Government will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. The power committed to the Government by the Act is a limited power in the sense that it can be excr- ---\n\n(I) [1961) I S.C.R. 128.\n\n(2) A.l.R. 1963 S.C. 151.\n\n904 SUPllBMB COURT REPORTS\n\n\nThe petitioners arc owners of some of the lands included in the notification under s. 6.\n\nOn receipt of the notice under s. 9 of the Act, they represented to Government that their lands be released B from acquisition. They were informed that this could not be done and thereupon the present petition was filed to challenge the legality of the proceedings taken under the Act.\n\nTwo main contentions have been urged in these petitions on behalf of the petitioners. In the first place it is contended that the impugned acquisition is not for a public purpose and is intend- C ed for sale to private persons, limited companies and corporations for monetary gain, and in any case, the change in the definition of \"public purpose\" by the Land Acquisition (Bombay Amendment) Act, No. 35 of 1953, (hereinafter referred to as the 1953- Act) by which a new clause was added in s. 3 (f) of the Act was .ultra vires the concept of \"public purpose\" within the meaning D of that phrase in Art. 31 (2) of the Constitution. The added clause is in these words :-\n\n\"The acquisition of land for purposes of the development of areas from public revenues or some fund controlled or managed by a local authority and subsequent disposal thereof in whole or in part by lease, assignment or sale, E with the object of securing further development.\"\n\nThe second attack arises in this way. By the Bombay Commissioners (Abolition of Office) Act, (No. 28 of 1950) the office of the Commissioner in the State of Bombay was abolished and the functions of the Commissioner were transferred to the State Government or to such authority as the State Government may by general or special order appoint. In 1958, however, the Bombay Commissioners of Divisions Act, No. 8 of\n\n1958, (hereinafter referred to as the 1958 Act) was passed by which the office of Commissioner of Division in the State of Bombay was revived. We are concerned in the present appeal mainly with s. 3 (4) of this Act.\n\nBy section 3 (I) it is provided that \"for the purposes of constituting offices of Commissioners of divisions and conferring powers and imposing duties on Commissioners and for certain other purposes, the enactments specified in column I of the Schedule to this Act shall be amended in the manner and to the extent specified in column 2 thereor'. Sub-section (2) thereof proyided that \"the Commissioner of a division, appointed under the law relating to land as amended by the said Schedule, shall exercise the powers and discharge the duties conferred and imposed on the Commissioner by any law for the time being in force,\n\nl'I\n\nRODRICKS v. MAHARASHTRA (Wanchoo, J.) 905\n\nincluding the enactments referred to in sub-s. (1) as amended by the said Schedule\". The Schedule made a number of amendments in the Bomay Revenue Code (No. 5 of 1879), the main amendment being that s. 6 provided for appointment of Commisioners for each division and s. 6-A provided for powers and duties of Commissioners. Further, in certain sections of the Land Revenue Law as applied to various areas in the reconstituted State of Bombay after the re-organisation of 1956, the word \"Commissioner\" was substituted for the \"State Government\" in various sections. Changes were also made in the Hyderabad Land Revenue Act (No. 8 of 1317 F.) and the Madhya Pradesh Land Revenue Code (No. 2 of 1955) to bring them into line with this Act and to provide for the office of Commissioner and its powers and duties. Besides these changes in the Land Revenue Code applicable to various areas in the re-organised State of Bombay, the Schedule also made amendments in various other Acts in force in the State of Bombay and \"Commissioner\" was substituted for \"State Government\" in these Acts. Besides this, \"Commissioner\" was also substituted for \"Board of Revenue\" in certain Acts in force in areas which came to the re-organised State of Bombay from the former Part B State of Hyderabad. Changes were also made in the Police Act (No. 5 of 1861) and \"Commissioner\" was introduced in certain sections thereof and a provision was made that the Magistrate of the District should be under the general control and direction of the Commissioner. Some changes were made in the Saurashtra Police Act (No. 18 of 1954), the Hyderabad District\n\nPolice Act, (No. X of 1329 F) and the Bombay District Police Act, (No. 4 of 1890). Thus sections 3(1) and 3(2) as enacted by the Bombay legislature gave certain powers and imposed certain duties on Commissioners read with the amendments in the Schedule to the 1958 Act.\n\nF Further provision was made in sub-sections (3), (4) and (5) which may now be set out. They read thus :\n\n\"(3) The State Government may by notification in the Official Gazette amend or delete any entry in the\n\nSchedule for the purpose of imposing any conditions or restrictions on the exercise of powers and discharge of G duties conferred or imposed on the Commissioner or withdrawing them, as the case may be, and the Schedule shall be amended accordingly. ( 4) The State Government may confer and impose on the Commissioner powers and duties under any other enactment for the time being in force and for that pur- H pose may, by a notification in the Official Gazette add to or specify in the Schedule the necessary adaptations and modifications in that enactment by way of al'lendment; and thereupon- Ml2Sup Cl/66-12\n\n\n(a) every such enactment shall accordingly be amended and have effect subject to the adaptations and modifications so made, and\n\n(b) the Schedule to this Act shall be deemed to be amended by the inclusion therein of the said provision for amending the enactment.\n\n(5) The State Government may at any time in like manner cancel a notification under sub-section (4), and thereupon the relevant enactment shall stand unamended by the cancelled notification and the Schedule shall be altered accordingly.\"\n\nIt will be seen that these three sub-sections provided an integrated scheme.\n\nBy sub-section (3) the State Government is given the power by notification in the Official Gazette. to amend or delete any entry in the Schedule for the purpose of imposing any conditions or restrictions on the exercise of powers and discharge of duties conferred or imposed on the Commissioner or withdrawing them, u the case may be, and the Schedule shall be amended accordingly. Sub-section (4) empowers the State Government to confer and impose on the Commissioner powers and duties under any other enactment for the time being in force. It further empowers the State Government for that purpose by notification in the Official Gazette to add to or specify in the Schedule the necessary adaptations and modifications in that enactment by way of amendment. On such notification, such other enactment shall accordingly be amended and have effect subject to the adaptations and modifications so made, and the Schedule to the 1958 Act, shall be deemed to be amended by the inclusion therein of the said provision for amending tha enactment. By sub-section (5) the State Government was given the power to cancel a notification made under sub-s. (4) and thereupon the relevant enactment shall stand unamended by the cancelled notification and the Schedule shall be altered accordingly. The contention of the petitioners\n\nIs that by these sub-sections, and particularly by sub-s. (4) of s.\n\nl, there was excessive delegation of legislative power to the State Government and further that these three sub-sections amount to the legislature abdicating its power of legislation in favour of the State Government. So it is urged that these provisions, and particularly s. 3( 4), arc ultra vires the power of the legislature inasmuch as they suffer from the vice of excessive delegation and amount to abdication of its power of legislation by the legislature in favour of the executive.\n\nThe petitions have been opposed on behalf of the State Government, and it is contended that the new clause added to s. 3{f) of the Act by the 1953 Act by which the definition of \"public\n\nA • -\n\nA -\n\n• F\n\nG •\n\nRODRICKS v. MAHARASHTRA (Wanchoo, J.) 907\n\npurpose\" was amended is valid and what the addition has provided i1 within the concept of \"public purpose\" as used in Art. 31(2) of the Constitution. Further it is denied that the object of the State Government in making the acquisition is merely to sell the land acquired to private parties, private limited companies or corporations for monetary gain. As to s. 3( 4) it is contended that it does not suffer from the vice of excessive delegation and does not amount to abdication of its legislative power by the legislature in favour of the executive.\n\nWe shall first consider the question whether the addition made by the Act of 1953 in the definition of \"public purpose\" is ultra vires the concept of \"public purpose\" as used in Art. 31(2) of the Constitution. \"Public purpose\" is not defined in Art. 31 of the Constitution; nor is it possible to lay down any hard and fast definition of \"public purpose\". The phrase came up for consideration before this Court in the State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others('). In\n\nthat connection Mahajan J. (as he then was) observed that \"the phrase 'public purpose' has to be construed according to the spirit of the times in which the particular legislation is enacted.\"\n\nHe also referred to Art. 39 of the Directive Principles of State Policy in construing the phrase \"public purpose\" after coming into force of the Constitution. In the same case, Das J. (as he then was) observed that \"no hard and fast definition can be laid down as to what is a 'public purpose' as the concept has been rapidly changing in all countries, but it is clear that it is the presence of the element of general interest of the community in an object or aim that transforms such object or aim into a public purpose, and whatever furthers the general interests of the community as opposed to the particular interest of the individual must be regarded as a public purpose.\"\n\nWe respectfully agree with these observations. There can be no doubt that the phrase \"public purpose\" has not a static connotation, which is fixed for all times. There can also be no doubt that it is not possible to lay down a definition of what \"public purpose\" is, particularly as the concept of public purpose may change from time to time. There is no doubt however that \"public purpose\" involves in it an element of general interest of the community and whatever furthers the general interest must be regarded as a public purpose. It is in the light of this concept of public purpose, which is not static and is changing from time to time and in which there must always be an element of general interest of the community that we have to look at the addition made by the 1953 Act in the definition of \"public purpose\" in s. 3 (I) of the Act.\n\n(I) [19S2J S.C.R. 189.\n\n908 SUPRl!MI! COURT REPORTS\n\n\nWe have already set out the addition. It is in two parts.\n\nThe first part provides for acquisition of land for purposes of the development of areas from public revenues or some fund controlled or managed by a local authority. So far as this part is concerned, it is conceded by learned counsel for the petitioners that development of areas with the aid of public revenue or some fund controlled or managed by a local authority would be a public purpose.\n\nUnder this part the land would be acquired by the State or by a local authority for the purpose of development and this development will consist, generally speaking, of levelling land, providing roads thereon, providing drainage and electric lines and such other amenities as should be made available at the time when the acquisition is made and the land is developed. Such development generally speaking is not possible through private agencies. As we have said already, it is not disputed on behalf of the petitioners that such development would be a public purpose within the concept of the phrase in Art. 31(2) of the Constitution.\n\nThe attack of the petitioners is on the second part of the addition in 1953 which provides for \"subsequent disposal thereof in whole or in part by lease, assignment, or sale, with the object of securing further development.\" It is urged that all these words mean is that after the development envisaged in the first part of the addition the State or the local authority would be free to dispose of the .land acquired in whole or in part by lease, assignment or sale, apparently to private persons. This, it is said, means that the State or the local authority would acquire land in the first instan~ and develop it in the manner already indicated and thereafter make profit by leasing, assigning or selling it to private individuals or bodies. It is also said that the object of securing further development which is the reason for sale or lease etc. is a very vague expression and there is nothing to show what this further development comprises of.\n\n\" It is true that when this part speaks of \"subsequent disposal thereof in whole or in part by lease, assignment or sale\", it is not unlikely that this disposal will take place to private persons and thus in an indirect way the State would be acquiring the land ro~ one set of individuals and disposing it of to anotller set of md1viduals after some development. If this were all, there may be some force in the argument that such acquisition is not wth_in the concept of \"public purpose\" as used in Art. 31 (2). But this m <; mr opinion is not all. We cannot ignore the words. \"wit~ the bect of securing further development\", which appear m this provts1on.\n\nIt would have been a different matter if the provision had stopped at the words \"lease, assignment or sale\"; but the provision does not stop there. It says that such lease, assignment or sale must be with the object of securing further development. and these\n\nA '\n\n-- G\n\nA . ,\n\n- B\n\nRODRICKS v. MAHARASHTRA. (Wanchoo, J.) 909\n\nwords must be given some meaning. It is true that the words \"further development\" have not been defined, but that was bound to be so for further development would depend upon the nature ' . . - of the purpose for which the land is acquired. Of course, 1t 1s possible that further development can be made by the State itself or by the local authority which acquires the land; but we see no reason why the State or the local authority should not have the power to see that further development takes place even through private agencies by lease, assignment or sale of such land. So long as the object is development and the land is made fit for the purpose for which it is acquired there is no reason why the State should not be permitted to see that further development of the land takes place in the direction for which the land is acquired, even though that may be through private agencies. We have no. doubt that where the State or the local authority decides that further development should take place through private agencies by disposal of the land so acquired by way of lease, assignment or sale, it will see that further development which it has in mind does take place. We can see no reason why if the land so acquired is leased, assigned or sold, the State or the local authority should not be able to impose terms on such lessee, assignee or vendee that will enable further development on the lines desired to take place. We also see no reason why when imposing terms, the State or the local authority may not provide that if the further development it desires the lessee, assignee or the vendee to make is not made within such reasonable time as the State or the local authority may fix, the land will revert to the State or the local authority so that it may again be used for the purpose of further development which was the reason for the acquisition of the land. ·\n\nTake the case where land is acquired for the purpose of development of certain areas for residential purposes. The State\n\nor the local authority levels the land where necessary, makes a lay out, provides roads, drainage, electric lines and such other amenities as may be available whereafter houses have to be built.\n\nThe State or the local authority may build these houses itself, but there is no reason why if the purpose is development of certain land as a residential area, the State or the local authority may not lease, assign or even sell the lands laid out and already devc- - loped in order that further development of building houses .may be achieved. In such a case it will always be open to the State Government or the local authority to provide, and we have no doubt that it will always so provide, thatlthe persons to whom the land is leased, assigned or sold carry]lout the further object of building houses. There is also no reason why the State or the local authority should not provide for the terms on which\n\nresidential buildings,.would be}made,'-the specifications of such\n\nSUPREMB COURT RBPORTS\n\n[1966) 3 S.C.R.\n\nbuildings, and the time within which they should be made. There is also no reason why the terms should not provide that if the further object of development is not carried out within a reasonable time, the land would revert to the State or the local authority to be used for the purpose for which it was acquired. We have no doubt that the State or the local authority would sec that such terms arc imposed on those to whom lands arc leased, assigned or sold with the object of further development by constructing houses where the scheme is for residential purposes. We have also no doubt that in imposing terms, the State or the local authority will see that the purpose for which the lease, assignment or sale is made is carried out within a reasonable time, failing which the land will revert to the State or the local authority. These matters are in our opinion implicit in the words \"with the object of securing further development\", and we have no reason to think that the State or the local authority would just dispose of the land IO acquired by lease or assignment or sale without caring to see that further development which was the basis of acquisition takes place.\n\nWe may refer in this connection to a similar provi.sion in s. 41 of the Act, which provides for an agreement between the private company for which the land is acquired and the State, and which lays down that the agreement shall provide the terms on which the land shall be held by the company. There is in our opinion no doubt that when this provision speaks of \"with the object of securing further development\" it implicitly requires that befoI?J the land so acquired is leased, assigned or sold, the State or the tocal authority shaU see that the purpose for which the acquisition is made is carried out by persons to whom the land is leased, usigned or sold. There is also in our opinion implicit in this provision that the State or the local authority would impose terms on the persons to whom the land is leased, assigned or sold and the terms should be such as to ensure that ithe object of further development takes place within a reasonable . time and if the persons to whom the land is leased or assigned or sold do not carry out that object within a reasonable time, the land would revert to the State or the local authority so that it may again be used for the purpose for which the acquisition was made. If this is the true import of the words \"with the object of securing further deopment\" in this provision-and we have no doubt that it is so-we fail to see how the provision made by the 1953 Act providing for development in two stages, first by the State or the local authority itself by making the land fit for the purpose for which acquisition is made, and then by private persons also after the land is developed by the State or the local authority, is not for a public purpose within the meaning of that phrase in Art. 31(2) of the Constitution.\n\nPopulation in India is rising and more\n\n- B\n\n....\n\n' '\n\nRODRICKS v. MAHARASHTRA (Wanchoo, J.) 911\n\nA or more industries are coming into being. Therefore where the acquisition is with the object of providing for residential and industrial development, we see no reason why such provision would not be included in the concept of public purpose in the present context.\n\nWe are therefore of opinion that the words \"with the object of securing further development\" have a meaning and if that meaning B is what we have stated above (as to which we have no doubt) it cannot be said that this provision made by the 1953 Act is not within the concept of Art. 3 I (2) of the Constitution. W c therefore held that the amendment by the 1953 Act already set out above is within the concept of public purpose in Art. 31(2) of the Constitution and cannot be struck down as ultra vires. c\n\nDelegated legislation is a well known modem device. In view of the complexities of modem life it is not possible for the legislature to find time to make all the detailed rules which arc necessary io carry out the purposes of an enactment; so it delegates to an appropriate executive authority the power to make rules. But before doing so, the legislature itself enacts the Jaw under which the power is delegated and lays down the essential policy of the Act and all such essential matters which require to be included in the Act itself. Having thus provided for all such essential matters in the enactment itself, the legislature leaves it to a subordinate authority which may be some appropriate executive authority to frame detailed rules to carry out the purposes of the Act. These rules are ancillary and subserve the purposes of the enactment. They cannot go against the provisions of the enactment and cannot in any manner 'make any change in the provision of the enactment and are merely for the purpose of carrying out the essential policy which the legislature has liiid down in the enactment itself. These rules are called delegated legis-\n\nF lation and it is important to remember that this delegated legislation cannot in any way change the provisions of the enactment 11- 11elf and must only be resorted to for carrying out the purposes of the legislation itself. Such being the nature of delegated legislation we have to see whether the impugned provisions of s. 3 are in accord with these principles. If they are not and if the legislature has conferred powers on the State Government beyond this such conferment of power cannot be delegated legislation and ia really an abdication of its power by the legislature and transfer of it to the executive .\n\nThis brings us to a consideration of s. 3. Sub-sections (1) and (2) of s. 3 read with the Schedule confer powers and impose duties on the Commissioner by virtue of the 1958 Act. itself.\n\nThen comes sub-section (3), and let us see what exactly it provides.\n\nThe State Government is given power by this sub-section to amend or delete any entry in the Schedule. The amendment is for the purpose of imposing any conditions or restrictions on the\n\n912 SUPREME OOURT llEPOllTS\n\n(1966] 3 S.C.R.\n\nexercise of powers and discharge of duties conferred or imposed on the Commissioner while deletion is with respect to withdrawing any powers conferred by the Schedule on the Commissioner. Leaving out the question of amendment, sub-section (3) confers power on the State Government to delete any entry from the Schedule if it desires to withdraw any powers conferred on the Commissioner by the legislature itself in the Schedule. In effect therefore the legislature says by sub-s. (3) that though it has deemed fit in its wisdom to confer a certain power on the Commissioner, it leaves it to the State Government to withdraw that power from the Commissioner and delete the necessary entry in the Schedule with respect thereto. So the State Government is given carte b/anche to take away all or any of the powers conferred by the legislature itself under the Schedule. It may also be added that the Schedule in the present case is very different from the Schedule in the Edward Mill< Co. Limited v. The State of Ajmer(I). In that case s. 27 of the Minimum Wages Act. (I I of 1948) gave power to the appropriate government after necessary formalities to add to the schedule any employment in respect of which it was of opinion that minimum rates of wages should be fixed under that Act. It will be seen that the schedule in that Act merely enumerated certain employments while the Schedule in the 1958 Act amends a large number of enactments. This method is merely a convenient device for making amendments in other enactments which would otherwise have found place in the main body of the 1958 Act. Further s. 27 of the Minimum Wages Act did not give any power to the appropriate government to delete any entry from the schedule; it merely gave power to the appropriate government to add to the schedule and that delegation was upheld by this Court. It will thus be seen that the provision in sub-s. (3) by which the State Government is even given the power to delete any entry in the Sclledule and withdraw if it wants to do so the power conferred on the Commissioner by the legislature is a very different matter from addition to the schedule which was permitted by the Minimum Wages Act.\n\nIt is clear that sub-s. (3) judged by the test of delegated legislation has gone far beyond what tho legislature can do when it delegates its functions to an executive authority for making subordinate legislation. As we have indicated above, sub-section {3) confers power on the State Government even to the extent of deleting any entry from the Schedule and withdrawing the power conferred by the legislature in its wisdom on the Commissioner.\n\nThis in our opinion is not delegated legislation but transfer by the legislature of its power in the matter of legislation to the executive. In effect the legislature says that though it considers that the Commissioner should have certain powers it has conferred 011\n\n(!) (1955) t S.C.R. 735.\n\nF '\n\n' .1\n\nRODRICKS v. MAHARASHTRA (Wanchoo, J.) 913\n\nA him in the Schedule, the State Government may withdraw those powers which it has thought fit to confer on the Commissioner.\n\nWe are of the opinion that this is not a provision for delegated legislation but a transfer by the legislature of its power to make law to the executive. Further if it can be considered to be conferment of power of delegated legislation, it suffers from the vice of ll excessive delegation inasmuch as it gives power to the executive to the extent of repealipg a part of the law made by the legislature.\n\nThen we come to sub-s. (4) and let us see what it provides.\n\nIt says that the State Government may confer and impose on the Commissioner powers and duties under any other enactment for the time being in force and further gives power to the State Government to amend any such enactment by adding to the entries to the Schedule. The language of the provision is of the widest amplitude and gives blanket power to the State Government to amend any enactment which may be in force for the time being in the State by making necessary entries in the Schequle. It is however urged on behalf of the State that' we should read down this provision in two respects. As the words stand, they confer power on the State Government to amend any enactment for the time being in force even though that enactment may be a law under List I of the Seventh Schedule to the Constitution. It is urged that the legislature could not have meant to confer power on the State Government by this provision with respect to laws under List I of the Seventh Schedule to the Constitution, for the legislature itself had no power to make any amendment in laws referable to List I of the Seventh Schedule. We are of the opinion that the provision in sub-s. ( 4) can be read down to this extent that the legislature could never have intended to give power to the State Government in matters in which it had itself no power.\n\nWe shall therefore proceed on the basis that in sub-section (4) the legislature only referred to enactments which it was itself competent to pass under Lists II and III of the Seventh Schedule to the Constitution.\n\nSecondly, it is urged that we nhould read down this provision and hold that all that the legislature intended thereby was to give to the State Govermnent power to confer on the Commissioner powers and impose upon him duties of an executive nature which were conferred and imposed on the State Govermnent by laws referable to Lists II and III of the Seventh Schedule to the Constitution. It is also urged that all that the legislature intended by this provision in sub-section (4) was to confer on the\n\nState Government the power to delegate its own executive power under other enactments not specified in the Schedule to the Commissioner. We are unable to see on what principle we can read down this provision in this manner. Even if we look at the sche-\n\n914 SUPREME C:OUllT REPOl.TS\n\n[1966] 3 S.C.R\n\ndulc as it was pBiSed by the legislature we find that though mostly \"Commissioner\" was substituted for \"State Government\" in the enactments specified in the Schedule there arc other provisions in the Schedule as enacted by the legislature which go beyond this.\n\nThe Schedule therefore is of no help in reading down the provision in sub-s. ( 4) in the manner suggested. Besides what learned counsel for the State asks when he says that we shoul 1 read down the provision in sub-s. (4) is that we should re-draft it altogether and add words in it which are not to be found therein. Sub-section\n\n(4) says that the State Government may confer and impose on the Commissioner powers and duties under any other enactment. The nature of these powers and duties are not specified in the provision, and we fail to see how we can add words in the sub-section which would delimit the nature of these powers and duties as merely executive powers conferred by other enactments on the State Government. Sub-section\n\n(4) as it stands therefore docs not merely authorise the State Government to delegate its executive power to the Commissioner under other enactments; it empowers the State Government to confer any powers and impose any duties\n\nunder any other enactment and to do so by amendment of the other enactment, and if notification envisaged therein is made, the other enactment is accordingly amended and the Schedule is also amended by the inclusion of the provision in the notification.\n\nAs the words of sub-section (4) stand we cannot in any way read down this provision to mean that it only authorises the State Government to delegate its executive powers and duties under other enactments besides those mentioned in the Schedule to the Commissioner by the legislature. If that was all that the legislature intended, we do not see why a suitable provision to that effect could not have been made by the legislature in sub-s. (4). It is however clear from the scheme of s. 3 that that is not all that the legislature intended. We have already referred to sub-s. (3) and held that by that provision the legislature empowered the State .Government to amend or repeal the law contained in the Schedule to the 1958 Act. By sub-section (4) it further empowered the State Government to amend any other law not mentioned in the Schedule, though of course with the object of conferring powcn and imposing duties on the Commissioner under other enactments which might have been conferred by those enactments on other authorities. In effect therefore the legislature was empowering the State Government by sub-s. ( 4) to substitute \"the Commissioner\" for the other authorities which might be mentioned in other enactments with respect to any powers and duties thereunder.\n\nTaldng a concrete case to illustrate our point and to show the far reaehing effect of the provision in sub-s. (4) we may refer to s. 18 of the Act. Under that provision the Collector has the power\n\nH , '\n\n' r\n\nRODRICKS v. MAHARASHTRA (Wanchoo, !.) 91 !;-\n\nto make reference to court in certain circumstances on the application of a person who has not accepted the award made by the Collector. Sections 20 to 28 confer powers on the court and impose duties on it when dealing with references. The Act was not one of the enactments mentioned in the Schedule as it was. originally passed by the legislature. On the wide words used in sub-s. ( 4) it would be possible for the State Government to confer on the Commissioner the powers conferred on the court and duties imposed on it by s. 18 to s. 28 by substituting the word \"Commissioner\" for the word \"court\" in the relevant provisions. If that is the extent of the power conferred on the State Government by sub-s. (4)-{and we have no doubt that it is so)-it is not a case of providing merely for delegated legislation properly so-called but amounts to complete transfer of its power of legislation by the legislature in this matter to the State Government. We fail to see why if the intention of the legislature was merely to provide for delegation of its executive power by the State Government to the Commissioner a simple provision to the effect that the State Government may delegate its power under any enactment for the time being in force to the Commissioner was not made. Instead we find an integrated scheme in sub-sections (3), (4) and (5). By sub-section (3), the State Government is given the power to amend the Schedule enacted by the legislature and take away from the Commissioner powers which the legislature in its wisdom thought fit to confer on him. This is done by providing for deletion of any entry in the Schedule. Then by sub-section ( 4) power is given to the State Government to confer powers and impose duties on the Commissioner under any other enactment by amending that enactment. Lastly by sub-section (5) the State Government was given the power to undo what it had done under sub-section ( 4) and on such action being taken the original provision in the other enactments would revive. This scheme is clear from the provisions of sub-sections (3), (4) and (5) and in our opinion clearly amounts to transfer of its legislative power by the legislature to the State Government with respect to matters dealt 'vith in the.!e sub-sections. Further if this is to be treated as a kind of delegation, then these sub-sections suffer from the vice of excessive delegation for they not only authorise the State Government to frame rules in the nature of subordinate legislation but give power to it to undo what the legislature itself has done by the 1958 Act; they also give further power to the State Government to amend what the legislature may itself have provided in other enactments already in force or what it may provide by other enactments to be passed in future. We have no doubt therefore that sub-s. ( 4) cannot be read down in the manner urged on behalf of the State.\n\nThere is also no doubt that as this provision stands it is a complete transfer of legislative power by the legislature to the executive within the ambit of sub-s. (4). Sub-section (5) is consequential to-\n\n•9 J 6 SUPRBMB OOUllT RBPOllTS\n\n\nsub-s. (4) and will fall along with it. We are therefore of opinion that the provisions contained in sub-sections (3), (4) and (5) of s. 3 of the 1958 Act which are clearly an integrated scheme are ultra vires the power of the legislature for they amount to transfer by the legislature of its legislative power to the State Government, and in any case suffer from the vice of excessive delegation if such nferment of power can be called delegation for the purposes of subordinate legislation.\n\nWe may now refer to two decisions of the Bombay High Court in which s. 3(4) of the 1958 Act has been upheld, namely, (i) Ganesh Narayan v.\n\nCommissioner.\n\nNagpur Division('), and (ii) Sadruddin Suleman Jhaveri v. Patwardhan(2).\n\nWith respect we find that in these two cases no attempt has been made to construe the actual words used in s. 3(4) and it has been assumed that the section merely allowed the State Government to confer on the Commissioner powers and impose duties which: have been conferred or imposed on the State Government under other enactments.\n\nWe have construed the words used in s. 3(4) and we are of the opinion that this is not what they mean. The words arc of very wide amplitude and as they stand they confer on the State Government power lo amend any other Act and confer on the Commissioner powers and impose duties under those acts which may . be conferred thereunder on any authority. Further there is nothing in the words of s. 3(4) confining conferment of powers of executive nature only.\n\nAs the words stand, any powers and duties of any authority can be conferred on the Commissioner.\n\nNor do we think that the principles laid down in the case of Her Majesty, the Queen v. Burah(3) and of Re. Delhi Laws Act, 1912(4) help to sustain the validity of s. 3(4). Burah's case(4) was a case of conditional legislation and not of delegated legislation. Act 22 of 1869 was enacted to remove the Garo Hills from the jurisdiction of the tribunals established under the General Regulations and Act and for other purposes. It was to apply in the first instance to Garo Hills but s. 9 thereof gave power to the Lieutenant-Governor to extend the provisions of this Act or any of them to the Jaintia Hills, the Naga Hills and to such portion of the Khasi Hills as for the time being forms part of British' India.\n\nBy virtue of this power, the Lieutenant-Governer issued a notification extending the provisions of this Act to the Khasi and Jaintia Hills and excluding therefrom the jurisdiction of the Courts of Civil and Criminal Judicature. The Privy Council upheld the validity of s. 9 as a pieoe of conditional legislation. It\n\n(!} ll964] 66 Bom. Law Reporter 807.\n\n(3) [1878] L.R. SJ.A. 178.\n\n(2) J.L.R. [19'5] Born. 394.\n\n(4) [19511 S.C.R. 747.\n\nF •\n\nI,;\n\nH J\n\nRODRICKS v. MAHARASHTRA ( Wanchoo, /.)\n\n91 T\n\nwill be seen however that all that was left to the Lieutenant-Gover nor 6y s. 9 was to apply a certain law which had been passed by a competent legislature to a C:ertain area. There was no provision in the law for any amendment of that law or any other law before its application to new territories. There is therefore no parallel between that case and the present case.\n\nWe are further of opinion that Re. Delhi Laws Act case(1) also cannot help the State. The main question in that case was about the extension of certain laws with necessary adaptations and modi· fications to Delhi. It was in that connection that this Court held that that was also conditional legislation and laws in force in other parts of India could be extended to Delhi subject to necessary modifications and adaptations. Even so this Court pointed. out that it was not open to the authority on whom such power was conferred to modify them in any essential feature when ordering their extension. What constitutes \"essential feature\" of a piece oflegislation was a matter over which there was difference of opinion between the learned Judges of this Court; but they were agreed that no essential feature could be altered by the power given to the executive to apply other laws in force in India to the territory of Delhi by modification or adaptation. This would also be more or Jess a case of conditional legislation and not of delegated legislation. As pointed out by Mukherjea J. (as he was then) at p.\n\n1009 in Re. Delhi Laws Act's case(1) \"to repeal or abrogate anexist-- ing law is the exercise of an essential legislative power\". The: amendment of a particular law falls also in the same category, for an amendment in effect amounts to a partial repeal of the existing provision with, may be, substitution in its place of another provi- . sion. What the legislature has done in the present case is to give power to the executive to amend other laws as it thinks fit for the purpose of conferring powers on the Commissioner and this in: our opinion is conferment of an essential legislative function on the executive which cannot be justified on the principles laid down in Re. Delhi Laws Act case('). As we read s. 3(4), we are clearly of opinion that it confers power on the State Government to amend any law it deems fit for the purpose of conferring any powers and imposing any duties on the Commissioner which may be imposed by other laws on any authority. This is beyond the power of the legislature and is really abdication of its essential function in this matter; and if it is a case of delegation it suffers from the vice of excessive delegation. We are therefore of the opinion that the two cases of the Bombay High Court are not correctly decided.\n\nIt is not in dispute that the amendments to the Act by which the power of the State Government was also conferred on the Commissioner under sections 4, SA and 6 of the Act were made\n\n(1) (1951] S.C.R. 747.\n\n918 SUPUM!! OOUllT UPOlTS\n\n\nby notifications under s. 3(4) of the 1958-Act. As we have held that s. 3( 4) of the 1958 Act is ultra vires the powers of the legislature and as the Commissioner had no power under the Act before such amendments to ss. 4, 5-A and 6 were made under s. 3(4) the notifications issued in this r.ase under ss. 4 and 6 must fall and must be quashed.\n\nIn the view we have taken it is unnecessary to consider the other points which have been raised in these petitions. We would therefore allow the petitions and quash the notifications under sa . . 4 and 6 of the Act issued by the Commissioner in the present\n\n.cases.\n\nPetitions allowed.\n\n;()) (19JIJ s.C:IL 747.", "total_entities": 243, "entities": [{"text": "ARNOLD RODRICKS & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "ARNOLD RODRICKS & ANR", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA & ORS", "label": "RESPONDENT", "start_char": 24, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA & ORS", "offset_not_found": false}}, {"text": "March 14, 1966", "label": "DATE", "start_char": 53, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "March 14, 1966."}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 99, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "C. SHAH ANDS. M. SIKRI, JJ", "label": "JUDGE", "start_char": 136, "end_char": 162, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Commissioners of Divislons Act, 1957", "label": "STATUTE", "start_char": 170, "end_char": 206, "source": "regex", "metadata": {}}, {"text": "Land Acquisition Act", "label": "STATUTE", "start_char": 319, "end_char": 339, "source": "regex", "metadata": {}}, {"text": "s. 3(f)(2)", "label": "PROVISION", "start_char": 353, "end_char": 363, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act", "statute": "Land Acquisition Act"}}, {"text": "Sections 3(3)", "label": "PROVISION", "start_char": 748, "end_char": 761, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act", "statute": "Land Acquisition Act"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 1041, "end_char": 1050, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act", "statute": "Land Acquisition Act"}}, {"text": "State Government of Bombay", "label": "ORG", "start_char": 1303, "end_char": 1329, "source": "ner", "metadata": {"in_sentence": "By virtue of this power the State Government of Bombay by notification conferred certain powers under the Land Acquisition Act on the Commissioner and amended the relevant sections of the Land Acquisition Act accordingly."}}, {"text": "Bombay", "label": "GPE", "start_char": 1547, "end_char": 1553, "source": "ner", "metadata": {"in_sentence": "Under the powers so conferred the Commissioner of Bombay, in 1962, commenced land acquis'tion pr()."}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 1832, "end_char": 1839, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1934, "end_char": 1938, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(f)(2)", "label": "PROVISION", "start_char": 2212, "end_char": 2222, "source": "regex", "metadata": {"statute": null}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 2278, "end_char": 2292, "source": "ner", "metadata": {"in_sentence": "HELD: Per Gajendragadkar, C.J., Hidayatullah and Sikri, JJ.-(1) The object of s. 3(3) of the Commissioners Act is two fold; first to enable the Government to impose any conditions or restr\"ctions on the exercise of powers and discharge of duties on Commissioners and secondly to withdraw them in case it is felt that the Commissioner should not exercise these powers.", "canonical_name": "P.B. GAJENDRAGADKAR*"}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 2300, "end_char": 2312, "source": "ner", "metadata": {"in_sentence": "HELD: Per Gajendragadkar, C.J., Hidayatullah and Sikri, JJ.-(1) The object of s. 3(3) of the Commissioners Act is two fold; first to enable the Government to impose any conditions or restr\"ctions on the exercise of powers and discharge of duties on Commissioners and secondly to withdraw them in case it is felt that the Commissioner should not exercise these powers."}}, {"text": "Sikri", "label": "JUDGE", "start_char": 2317, "end_char": 2322, "source": "ner", "metadata": {"in_sentence": "HELD: Per Gajendragadkar, C.J., Hidayatullah and Sikri, JJ.-(1) The object of s. 3(3) of the Commissioners Act is two fold; first to enable the Government to impose any conditions or restr\"ctions on the exercise of powers and discharge of duties on Commissioners and secondly to withdraw them in case it is felt that the Commissioner should not exercise these powers.", "canonical_name": "Sikri"}}, {"text": "s. 3(3)", "label": "PROVISION", "start_char": 2346, "end_char": 2353, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3075, "end_char": 3079, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 6 and 7", "label": "PROVISION", "start_char": 3132, "end_char": 3148, "source": "regex", "metadata": {"statute": null}}, {"text": "Thero can be no difference in principle between the Slate Lep lature insening a section in an Act", "label": "STATUTE", "start_char": 3589, "end_char": 3686, "source": "regex", "metadata": {}}, {"text": "Se the amendment of the Act became effective by virtue of the Commissioners Act", "label": "STATUTE", "start_char": 4637, "end_char": 4716, "source": "regex", "metadata": {}}, {"text": "Bombay Legislature", "label": "ORG", "start_char": 5146, "end_char": 5164, "source": "ner", "metadata": {"in_sentence": "898 CJ\n\n(v) 11 was not nec..,.ary to decide the question as 10 the validity of •. (f) (2) of the Land Acquisition Act as enacted by the Bombay State Legislature because the purpose for which the land were acquired in the present case was a 'public purpooe' as defined in the Land Acquisition Act u it stood before the amendment made by the Bombay Legislature, lllld it w .. not necessary for the respondents 10 rely on the amendment to susta'n in the notification."}}, {"text": "ss. 4 and 6", "label": "PROVISION", "start_char": 5674, "end_char": 5685, "source": "regex", "metadata": {"linked_statute_text": "Se the amendment of the Act became effective by virtue of the Commissioners Act", "statute": "Se the amendment of the Act became effective by virtue of the Commissioners Act"}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 5829, "end_char": 5836, "source": "ner", "metadata": {"in_sentence": "Per Wanchoo and Shah JJ. (", "canonical_name": "Wanchoo"}}, {"text": "Shah", "label": "JUDGE", "start_char": 5841, "end_char": 5845, "source": "ner", "metadata": {"in_sentence": "Per Wanchoo and Shah JJ. (", "canonical_name": "Shah"}}, {"text": "s. 3(f)(2)", "label": "PROVISION", "start_char": 5896, "end_char": 5906, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 32(2)", "label": "PROVISION", "start_char": 5989, "end_char": 5999, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 3(3)", "label": "PROVISION", "start_char": 6090, "end_char": 6097, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 6748, "end_char": 6755, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7707, "end_char": 7711, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 7914, "end_char": 7921, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 7929, "end_char": 7950, "source": "regex", "metadata": {}}, {"text": "Niren De", "label": "LAWYER", "start_char": 7995, "end_char": 8003, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-Genera/, Malcolm Pereira, B. R.\n\nAgarwala, G. L. Sanghi and H. K. Puri, for the petitioners (in both the petitons).", "canonical_name": "Niren De"}}, {"text": "Malcolm Pereira", "label": "LAWYER", "start_char": 8035, "end_char": 8050, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-Genera/, Malcolm Pereira, B. R.\n\nAgarwala, G. L. Sanghi and H. K. Puri, for the petitioners (in both the petitons)."}}, {"text": "B. R.\n\nAgarwala", "label": "LAWYER", "start_char": 8052, "end_char": 8067, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-Genera/, Malcolm Pereira, B. R.\n\nAgarwala, G. L. Sanghi and H. K. Puri, for the petitioners (in both the petitons)."}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 8069, "end_char": 8081, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-Genera/, Malcolm Pereira, B. R.\n\nAgarwala, G. L. Sanghi and H. K. Puri, for the petitioners (in both the petitons)."}}, {"text": "H. K. Puri", "label": "LAWYER", "start_char": 8086, "end_char": 8096, "source": "ner", "metadata": {"in_sentence": "Niren De, Additional Solicitor-Genera/, Malcolm Pereira, B. R.\n\nAgarwala, G. L. Sanghi and H. K. Puri, for the petitioners (in both the petitons)."}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 8143, "end_char": 8157, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, N. S. Bindra and B. R. G. K. Achar, for the respondents (in both the petitfons)."}}, {"text": "N. S. Bindra", "label": "LAWYER", "start_char": 8159, "end_char": 8171, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, N. S. Bindra and B. R. G. K. Achar, for the respondents (in both the petitfons)."}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 8176, "end_char": 8193, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, N. S. Bindra and B. R. G. K. Achar, for the respondents (in both the petitfons)."}}, {"text": "GAJENDRAGADKAR", "label": "JUDGE", "start_char": 8257, "end_char": 8271, "source": "ner", "metadata": {"in_sentence": "The judgment of GAJENDRAGADKAR, c. J. HIDAYATULLAH and SIKRI, JJ, was delivered by SIKRI J. The dissenting opinion of WANCHOO AND SHAH JJ.", "canonical_name": "P.B. GAJENDRAGADKAR*"}}, {"text": "SIKRI", "label": "JUDGE", "start_char": 8296, "end_char": 8301, "source": "ner", "metadata": {"in_sentence": "The judgment of GAJENDRAGADKAR, c. J. HIDAYATULLAH and SIKRI, JJ, was delivered by SIKRI J. The dissenting opinion of WANCHOO AND SHAH JJ.", "canonical_name": "Sikri"}}, {"text": "WANCHOO", "label": "JUDGE", "start_char": 8359, "end_char": 8366, "source": "ner", "metadata": {"in_sentence": "The judgment of GAJENDRAGADKAR, c. J. HIDAYATULLAH and SIKRI, JJ, was delivered by SIKRI J. The dissenting opinion of WANCHOO AND SHAH JJ.", "canonical_name": "Wanchoo"}}, {"text": "SHAH", "label": "JUDGE", "start_char": 8371, "end_char": 8375, "source": "ner", "metadata": {"in_sentence": "The judgment of GAJENDRAGADKAR, c. J. HIDAYATULLAH and SIKRI, JJ, was delivered by SIKRI J. The dissenting opinion of WANCHOO AND SHAH JJ.", "canonical_name": "Shah"}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 8446, "end_char": 8453, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Bombay Suburban District", "label": "GPE", "start_char": 8787, "end_char": 8811, "source": "ner", "metadata": {"in_sentence": "The petitioners who are citizens of India are owners of some land in Greater Bombay in the South Salsetta Taluka in the Bombay Suburban District."}}, {"text": "State of Maharashtra", "label": "RESPONDENT", "start_char": 8874, "end_char": 8894, "source": "ner", "metadata": {"in_sentence": "There are four respondents to the petition; the first is the State of Maharashtra, the second the Commissioner, Bombay Division, the third the Special Land Acquisition Officer and the fourth the Maharashtra Industrial Development Corporation, established by notification under the Maharashtra Industrial Development Act, 1961.", "canonical_name": "STATE OF MAHARASHTRA & ORS"}}, {"text": "Commissioner, Bombay Division", "label": "RESPONDENT", "start_char": 8911, "end_char": 8940, "source": "ner", "metadata": {"in_sentence": "There are four respondents to the petition; the first is the State of Maharashtra, the second the Commissioner, Bombay Division, the third the Special Land Acquisition Officer and the fourth the Maharashtra Industrial Development Corporation, established by notification under the Maharashtra Industrial Development Act, 1961."}}, {"text": "Special Land Acquisition Officer", "label": "RESPONDENT", "start_char": 8956, "end_char": 8988, "source": "ner", "metadata": {"in_sentence": "There are four respondents to the petition; the first is the State of Maharashtra, the second the Commissioner, Bombay Division, the third the Special Land Acquisition Officer and the fourth the Maharashtra Industrial Development Corporation, established by notification under the Maharashtra Industrial Development Act, 1961."}}, {"text": "Maharashtra Industrial Development Corporation", "label": "RESPONDENT", "start_char": 9008, "end_char": 9054, "source": "ner", "metadata": {"in_sentence": "There are four respondents to the petition; the first is the State of Maharashtra, the second the Commissioner, Bombay Division, the third the Special Land Acquisition Officer and the fourth the Maharashtra Industrial Development Corporation, established by notification under the Maharashtra Industrial Development Act, 1961."}}, {"text": "Maharashtra Industrial Development Act, 1961", "label": "STATUTE", "start_char": 9094, "end_char": 9138, "source": "regex", "metadata": {}}, {"text": "March 30, 1962", "label": "DATE", "start_char": 9214, "end_char": 9228, "source": "ner", "metadata": {"in_sentence": "The predecessor in office of the second respondent, by notification dated March 30, 1962, published in the Maharashtra Government Gazette, purporting to act under s. 4 of the Land Acquisition Act, 1894 (I of 1894)-hereinafter referred to as the Act-notified that the land belonging to the petitioners was likely to be needed \"for a public purpose, viz.,"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 9303, "end_char": 9307, "source": "regex", "metadata": {"linked_statute_text": "the Maharashtra Industrial Development Act, 1961", "statute": "the Maharashtra Industrial Development Act, 1961"}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 9315, "end_char": 9341, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 9733, "end_char": 9737, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "s. 4( 1)", "label": "PROVISION", "start_char": 9864, "end_char": 9872, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "Arnold Rodricks", "label": "PETITIONER", "start_char": 10685, "end_char": 10700, "source": "ner", "metadata": {"in_sentence": "The first petitioner, Arnold Rodricks, pointed out in his Jetter dated October 5, I 963, addressed to the Assistant Secretary to the Government of Maharashtra, that the Government had already acquired about 3 acres of his land for University Campus in addition to his other lands acquired earlier by the State Government and that the said lands and the land bearing Survey No.", "canonical_name": "ARNOLD RODRICKS & ANR"}}, {"text": "October 5, I 963", "label": "DATE", "start_char": 10734, "end_char": 10750, "source": "ner", "metadata": {"in_sentence": "The first petitioner, Arnold Rodricks, pointed out in his Jetter dated October 5, I 963, addressed to the Assistant Secretary to the Government of Maharashtra, that the Government had already acquired about 3 acres of his land for University Campus in addition to his other lands acquired earlier by the State Government and that the said lands and the land bearing Survey No."}}, {"text": "Government of Maharashtra", "label": "ORG", "start_char": 10796, "end_char": 10821, "source": "ner", "metadata": {"in_sentence": "The first petitioner, Arnold Rodricks, pointed out in his Jetter dated October 5, I 963, addressed to the Assistant Secretary to the Government of Maharashtra, that the Government had already acquired about 3 acres of his land for University Campus in addition to his other lands acquired earlier by the State Government and that the said lands and the land bearing Survey No."}}, {"text": "October 7, 1963", "label": "DATE", "start_char": 11218, "end_char": 11233, "source": "ner", "metadata": {"in_sentence": "On October 7, 1963, the second respondent, being satisfied after ."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 11342, "end_char": 11346, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 11480, "end_char": 11484, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 11677, "end_char": 11681, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 11703, "end_char": 11707, "source": "regex", "metadata": {"statute": null}}, {"text": "October 7,\n\nI 963", "label": "DATE", "start_char": 12011, "end_char": 12028, "source": "ner", "metadata": {"in_sentence": "In the petition, the notifications dated March 30, 1962 and October 7,\n\nI 963, and the acquisition proceedings and the enquiries purpoed to be held under s. 5A and s. 11 of the Act arc challenged as being illegal, invalid and inoperative in law and without and/or in excess of jurisdiction, etc.,"}}, {"text": "s. 5A", "label": "PROVISION", "start_char": 12105, "end_char": 12110, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 12115, "end_char": 12120, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(f)(2)", "label": "PROVISION", "start_char": 13240, "end_char": 13250, "source": "regex", "metadata": {"statute": null}}, {"text": "s.3", "label": "PROVISION", "start_char": 13358, "end_char": 13361, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Commissioners of Divisions Act", "label": "STATUTE", "start_char": 13370, "end_char": 13407, "source": "regex", "metadata": {}}, {"text": "ss. 3A, 4", "label": "PROVISION", "start_char": 13542, "end_char": 13551, "source": "regex", "metadata": {"linked_statute_text": "Bombay Commissioners of Divisions Act", "statute": "Bombay Commissioners of Divisions Act"}}, {"text": "section 3A", "label": "PROVISION", "start_char": 13601, "end_char": 13611, "source": "regex", "metadata": {"linked_statute_text": "Bombay Commissioners of Divisions Act", "statute": "Bombay Commissioners of Divisions Act"}}, {"text": "section 4", "label": "PROVISION", "start_char": 13911, "end_char": 13920, "source": "regex", "metadata": {"linked_statute_text": "Bombay Commissioners of Divisions Act", "statute": "Bombay Commissioners of Divisions Act"}}, {"text": "Section 6", "label": "PROVISION", "start_char": 14369, "end_char": 14378, "source": "regex", "metadata": {"linked_statute_text": "Bombay Commissioners of Divisions Act", "statute": "Bombay Commissioners of Divisions Act"}}, {"text": "section 7", "label": "PROVISION", "start_char": 14868, "end_char": 14877, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 14991, "end_char": 15001, "source": "regex", "metadata": {"statute": null}}, {"text": "Niren De", "label": "LAWYER", "start_char": 15652, "end_char": 15660, "source": "ner", "metadata": {"in_sentence": "Mr. Niren De, the learned Additional Solicitor-General appearing on be)lalf of the petitioners, raised four points before us,\n\n(I) That the declarations under s.~. 4 and 6 of the Act are essential features or are related to essential legislative policies and as such ss.", "canonical_name": "Niren De"}}, {"text": "ss. 4 and 6", "label": "PROVISION", "start_char": 15915, "end_char": 15926, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3( 4)", "label": "PROVISION", "start_char": 15977, "end_char": 15985, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3( 4)", "label": "PROVISION", "start_char": 16056, "end_char": 16064, "source": "regex", "metadata": {"statute": null}}, {"text": "arts. 31(2)", "label": "PROVISION", "start_char": 16270, "end_char": 16281, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "art. 254", "label": "PROVISION", "start_char": 16286, "end_char": 16294, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "RODRICKS V. MAHARASHTRA", "label": "JUDGE", "start_char": 16395, "end_char": 16418, "source": "ner", "metadata": {"in_sentence": "RODRICKS V. MAHARASHTRA ( Sikri, J.) 891\n\nIt would be convenient to take the first three points together because in substance they raise the point that s. 3( 4) is bad, because the legislature should have performed the functions entrusted to the State Government under s. 3(4) of the Commissioners Act."}}, {"text": "s. 3( 4)", "label": "PROVISION", "start_char": 16547, "end_char": 16555, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 16664, "end_char": 16671, "source": "regex", "metadata": {"statute": null}}, {"text": "further points out that there never has been any power of delegation in the Land Acquisition Act", "label": "STATUTE", "start_char": 17360, "end_char": 17456, "source": "regex", "metadata": {}}, {"text": "Setalvad", "label": "OTHER_PERSON", "start_char": 18018, "end_char": 18026, "source": "ner", "metadata": {"in_sentence": "Mr. Setalvad, who appears on behalf of the respondents, says that what you have to consider is the legislative policy underlying the Commissioners Act and not the Land Acquisition Act."}}, {"text": "says that there is enough guidance in the Commissioners Act", "label": "STATUTE", "start_char": 18203, "end_char": 18262, "source": "regex", "metadata": {}}, {"text": "Let us then first examine the scheme of the Commissioners Act", "label": "STATUTE", "start_char": 19160, "end_char": 19221, "source": "regex", "metadata": {}}, {"text": "s92", "label": "PROVISION", "start_char": 19320, "end_char": 19323, "source": "regex", "metadata": {"linked_statute_text": "Let us then first examine the scheme of the Commissioners Act", "statute": "Let us then first examine the scheme of the Commissioners Act"}}, {"text": "Bombay Land Revenue Code, 1879", "label": "STATUTE", "start_char": 19788, "end_char": 19818, "source": "regex", "metadata": {}}, {"text": "Section 6A", "label": "PROVISION", "start_char": 19902, "end_char": 19912, "source": "regex", "metadata": {"linked_statute_text": "The Bombay Land Revenue Code, 1879", "statute": "The Bombay Land Revenue Code, 1879"}}, {"text": "s.6A", "label": "PROVISION", "start_char": 20850, "end_char": 20854, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Land Revenue Code 1879", "label": "STATUTE", "start_char": 20927, "end_char": 20956, "source": "regex", "metadata": {}}, {"text": "Bombay Land Revenue Code, 1879", "label": "STATUTE", "start_char": 21086, "end_char": 21116, "source": "regex", "metadata": {}}, {"text": "Kutch", "label": "GPE", "start_char": 21163, "end_char": 21168, "source": "ner", "metadata": {"in_sentence": "Division\" is defined to mean the territories formed into a division under the Bombay Land Revenue Code, 1879, or under that Code in its application to the Kutch and Saurashtra areas of the State of Bombay, or under the Madhya Pradesh Land Revenue Code, 1954, or under the Hyderabad Land Revenue Act. \""}}, {"text": "Saurashtra", "label": "GPE", "start_char": 21173, "end_char": 21183, "source": "ner", "metadata": {"in_sentence": "Division\" is defined to mean the territories formed into a division under the Bombay Land Revenue Code, 1879, or under that Code in its application to the Kutch and Saurashtra areas of the State of Bombay, or under the Madhya Pradesh Land Revenue Code, 1954, or under the Hyderabad Land Revenue Act. \""}}, {"text": "State of Bombay", "label": "GPE", "start_char": 21197, "end_char": 21212, "source": "ner", "metadata": {"in_sentence": "Division\" is defined to mean the territories formed into a division under the Bombay Land Revenue Code, 1879, or under that Code in its application to the Kutch and Saurashtra areas of the State of Bombay, or under the Madhya Pradesh Land Revenue Code, 1954, or under the Hyderabad Land Revenue Act. \""}}, {"text": "Madhya Pradesh Land Revenue Code, 1954", "label": "STATUTE", "start_char": 21227, "end_char": 21265, "source": "regex", "metadata": {}}, {"text": "section 5", "label": "PROVISION", "start_char": 21459, "end_char": 21468, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Land Revenue Code, 1954", "statute": "the Madhya Pradesh Land Revenue Code, 1954"}}, {"text": "Bombay Land Revenue Code, 1879", "label": "STATUTE", "start_char": 21476, "end_char": 21506, "source": "regex", "metadata": {}}, {"text": "Section 5", "label": "PROVISION", "start_char": 21603, "end_char": 21612, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Land Revenue Code, 1879", "statute": "the Bombay Land Revenue Code, 1879"}}, {"text": "section 122", "label": "PROVISION", "start_char": 21858, "end_char": 21869, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Land Revenue Code, 1879", "statute": "the Bombay Land Revenue Code, 1879"}}, {"text": "States Reorganisation Act, 1956", "label": "STATUTE", "start_char": 21877, "end_char": 21908, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 9", "label": "PROVISION", "start_char": 21917, "end_char": 21926, "source": "regex", "metadata": {"linked_statute_text": "the States Reorganisation Act, 1956", "statute": "the States Reorganisation Act, 1956"}}, {"text": "Madhya Pradesh Land Revenue Code, 1954", "label": "STATUTE", "start_char": 21936, "end_char": 21974, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 22088, "end_char": 22097, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Land Revenue Code, 1954", "statute": "the Madhya Pradesh Land Revenue Code, 1954"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 22585, "end_char": 22594, "source": "regex", "metadata": {"linked_statute_text": "II and III in the Seventh Schedule to the Constitution in force in any part of the State immediately before the commencement of this Act", "statute": "II and III in the Seventh Schedule to the Constitution in force in any part of the State immediately before the commencement of this Act"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 24266, "end_char": 24275, "source": "regex", "metadata": {"statute": null}}, {"text": "Berar", "label": "GPE", "start_char": 24810, "end_char": 24815, "source": "ner", "metadata": {"in_sentence": "The Central Provinces and Berar Commissioners (Construction of References) Act, 1948 (61 of 1948) had similarly abolished the Commissioners Divisions of Nagpur, Jubbulpore, Chhatisgarh and Berar, and had provided that the appointment of Commissioners to these Divisions shall cease."}}, {"text": "Nagpur", "label": "GPE", "start_char": 24937, "end_char": 24943, "source": "ner", "metadata": {"in_sentence": "The Central Provinces and Berar Commissioners (Construction of References) Act, 1948 (61 of 1948) had similarly abolished the Commissioners Divisions of Nagpur, Jubbulpore, Chhatisgarh and Berar, and had provided that the appointment of Commissioners to these Divisions shall cease."}}, {"text": "Jubbulpore", "label": "GPE", "start_char": 24945, "end_char": 24955, "source": "ner", "metadata": {"in_sentence": "The Central Provinces and Berar Commissioners (Construction of References) Act, 1948 (61 of 1948) had similarly abolished the Commissioners Divisions of Nagpur, Jubbulpore, Chhatisgarh and Berar, and had provided that the appointment of Commissioners to these Divisions shall cease."}}, {"text": "Chhatisgarh", "label": "GPE", "start_char": 24957, "end_char": 24968, "source": "ner", "metadata": {"in_sentence": "The Central Provinces and Berar Commissioners (Construction of References) Act, 1948 (61 of 1948) had similarly abolished the Commissioners Divisions of Nagpur, Jubbulpore, Chhatisgarh and Berar, and had provided that the appointment of Commissioners to these Divisions shall cease."}}, {"text": "s. 4", "label": "PROVISION", "start_char": 25070, "end_char": 25074, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 5, 6, 7 and 8", "label": "PROVISION", "start_char": 25466, "end_char": 25488, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 6 and 7", "label": "PROVISION", "start_char": 27536, "end_char": 27547, "source": "regex", "metadata": {"linked_statute_text": "Director of Local Authorities or any other officer or authority immediately before the commencement of this Act", "statute": "Director of Local Authorities or any other officer or authority immediately before the commencement of this Act"}}, {"text": "see no difference in principle between the State Legislature inserting a section in an Act", "label": "STATUTE", "start_char": 27842, "end_char": 27932, "source": "regex", "metadata": {}}, {"text": "s. 4", "label": "PROVISION", "start_char": 28272, "end_char": 28276, "source": "regex", "metadata": {"linked_statute_text": "We see no difference in principle between the State Legislature inserting a section in an Act", "statute": "We see no difference in principle between the State Legislature inserting a section in an Act"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 28401, "end_char": 28410, "source": "regex", "metadata": {"linked_statute_text": "We see no difference in principle between the State Legislature inserting a section in an Act", "statute": "We see no difference in principle between the State Legislature inserting a section in an Act"}}, {"text": "Central Government", "label": "ORG", "start_char": 28448, "end_char": 28466, "source": "ner", "metadata": {"in_sentence": "The Central Government may by notified order direct that the power to make orders under section 3 shall in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by-\n\n(a) such officer or authority subordinate to the Central Government, or\n\n(b) such State Government or such officer or authority subordinate to a State Government as may be specified in the direction.\""}}, {"text": "section 3", "label": "PROVISION", "start_char": 28532, "end_char": 28541, "source": "regex", "metadata": {"linked_statute_text": "We see no difference in principle between the State Legislature inserting a section in an Act", "statute": "We see no difference in principle between the State Legislature inserting a section in an Act"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 28915, "end_char": 28924, "source": "regex", "metadata": {"linked_statute_text": "We see no difference in principle between the State Legislature inserting a section in an Act", "statute": "We see no difference in principle between the State Legislature inserting a section in an Act"}}, {"text": "section 3", "label": "PROVISION", "start_char": 29138, "end_char": 29147, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 29482, "end_char": 29491, "source": "regex", "metadata": {"statute": null}}, {"text": "Umrigar", "label": "OTHER_PERSON", "start_char": 29497, "end_char": 29504, "source": "ner", "metadata": {"in_sentence": "Mr. Umrigar contended that it was for the Legislature itself to specify the particular authorities or officers who could exercise power under section 3 and it was not open to the Legislature to empower the Central Government to say what officer or authority could exercise the power."}}, {"text": "section 3", "label": "PROVISION", "start_char": 29635, "end_char": 29644, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court of the United States of America", "label": "COURT", "start_char": 29839, "end_char": 29884, "source": "ner", "metadata": {"in_sentence": "Reference in this connection was made to two decisions of the Supreme Court of the United States of America-Panama Refining Co. v.\n\nRyan(') and Schechter v. United States(2)."}}, {"text": "section 4", "label": "PROVISION", "start_char": 30412, "end_char": 30421, "source": "regex", "metadata": {"statute": null}}, {"text": "Shannon", "label": "OTHER_PERSON", "start_char": 30698, "end_char": 30705, "source": "ner", "metadata": {"in_sentence": "The decision of their Lordships of the Privy Council in Shannon's case(') completely negatives the contention raised regarding the invalidity of section 4."}}, {"text": "section 4", "label": "PROVISION", "start_char": 30787, "end_char": 30796, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4A(d)", "label": "PROVISION", "start_char": 30907, "end_char": 30920, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 32067, "end_char": 32071, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 32337, "end_char": 32341, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 32427, "end_char": 32431, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 32601, "end_char": 32605, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 33170, "end_char": 33174, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 35996, "end_char": 36005, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 36243, "end_char": 36253, "source": "ner", "metadata": {"in_sentence": "This Court was faced with a similar problem in Harisha11ker Bag/a and Another v.\n\nThe Stat<' of Madhya Pradt>.th(l) and repelled a similar contention , in the following words:\n\n\"Conceding, however, for the sake of argument that lo the extent of a repugnancy between an order made under section 3 and the provisions of an existing law, t, o the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any Act of the delegate, but the repeal is by the legislative Act of the Parliament itself."}}, {"text": "section 6", "label": "PROVISION", "start_char": 36275, "end_char": 36284, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 36341, "end_char": 36350, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 36565, "end_char": 36574, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 36669, "end_char": 36678, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 36740, "end_char": 36749, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 36808, "end_char": 36817, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 36883, "end_char": 36892, "source": "regex", "metadata": {"statute": null}}, {"text": "De", "label": "OTHER_PERSON", "start_char": 37732, "end_char": 37734, "source": "ner", "metadata": {"in_sentence": "In conclusion we see no force in the contentions raised by Mr.\n\nDe on behalf of the petitioners and this takes us to the next petition (W.P. No."}}, {"text": "Pereira", "label": "OTHER_PERSON", "start_char": 37839, "end_char": 37846, "source": "ner", "metadata": {"in_sentence": "146 of 196S) in which Mr. Pereira hasraised some additional points."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 38018, "end_char": 38022, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 38197, "end_char": 38201, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(f)(2)", "label": "PROVISION", "start_char": 38567, "end_char": 38577, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 4 and 6", "label": "PROVISION", "start_char": 38708, "end_char": 38719, "source": "regex", "metadata": {"statute": null}}, {"text": "S. R. Naik", "label": "OTHER_PERSON", "start_char": 40490, "end_char": 40500, "source": "ner", "metadata": {"in_sentence": "In the affidavit of S. R. Naik, Special Land Acquisition Officer, it is stated that the State Government had set up a study group to consider and recommend on various matters relating to congestion in the Island of Bombay."}}, {"text": "Greater Bombay", "label": "GPE", "start_char": 41542, "end_char": 41556, "source": "ner", "metadata": {"in_sentence": "According to the estimate of the Study Group based on the formula adopted by the Director General of Health Services of the Government of India the population of Greater Bombay would increase to a total staggering figure of 75 lakhs by the year 1958."}}, {"text": "Maharashtra", "label": "GPE", "start_char": 41914, "end_char": 41925, "source": "ner", "metadata": {"in_sentence": "It found that of the total number of 11,539 registered factories in the State of Maharashtra as in 1958 Greater Bombay had 3,539 registered factories which meant that one-third of the total number of factories in the State of Maharashtra were in Greater Bombay alone."}}, {"text": "ofBombay", "label": "GPE", "start_char": 42195, "end_char": 42203, "source": "ner", "metadata": {"in_sentence": "Of the total number of factories in Greater Bombay as many as 76 % were located in the Island ofBombay which admeasures only 26.19 sq."}}, {"text": "s. 17(2)", "label": "PROVISION", "start_char": 44796, "end_char": 44804, "source": "regex", "metadata": {"statute": null}}, {"text": "(1961] 1 S.C.R 128", "label": "CASE_CITATION", "start_char": 45050, "end_char": 45068, "source": "regex", "metadata": {}}, {"text": "Supreme Judicial Court of Massachusclls (204 Mass. 607)", "label": "COURT", "start_char": 45658, "end_char": 45713, "source": "ner", "metadata": {"in_sentence": "It was urged before us that 1he Slate Governmenl was nol entitled to acquire property from A and give it to B.\n\nReliance was placed on the decision of 1he Supreme Judicial Court of Massachusclls (204 Mass. 607)."}}, {"text": "Mudholkar", "label": "JUDGE", "start_char": 47296, "end_char": 47305, "source": "ner", "metadata": {"in_sentence": "Mudholkar, J., observed as follows :\n\n\"If the purpose for which the land is being acquired by the State is within the legislative competence of the State the declration of the Government will be final subject, however, to one exception."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 47953, "end_char": 47957, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 47991, "end_char": 47995, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 48737, "end_char": 48741, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 48845, "end_char": 48852, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 49803, "end_char": 49807, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 49829, "end_char": 49838, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 50698, "end_char": 50702, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 50766, "end_char": 50770, "source": "regex", "metadata": {"statute": null}}, {"text": "Changes were also made in the Hyderabad Land Revenue Act", "label": "STATUTE", "start_char": 51063, "end_char": 51119, "source": "regex", "metadata": {}}, {"text": "Besides these changes in the Land Revenue Code", "label": "STATUTE", "start_char": 51307, "end_char": 51353, "source": "regex", "metadata": {}}, {"text": "State of", "label": "GPE", "start_char": 51718, "end_char": 51726, "source": "ner", "metadata": {"in_sentence": "Besides this, \"Commissioner\" was also substituted for \"Board of Revenue\" in certain Acts in force in areas which came to the re-organised State of Bombay from the former Part B State of Hyderabad."}}, {"text": "Hyderabad", "label": "GPE", "start_char": 51766, "end_char": 51775, "source": "ner", "metadata": {"in_sentence": "Besides this, \"Commissioner\" was also substituted for \"Board of Revenue\" in certain Acts in force in areas which came to the re-organised State of Bombay from the former Part B State of Hyderabad."}}, {"text": "Changes were also made in the Police Act", "label": "STATUTE", "start_char": 51777, "end_char": 51817, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Some changes were made in the Saurashtra Police Act", "label": "STATUTE", "start_char": 52028, "end_char": 52079, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Police Act", "label": "STATUTE", "start_char": 52122, "end_char": 52132, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Police Act", "label": "STATUTE", "start_char": 52176, "end_char": 52186, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sections 3(1) and 3(2)", "label": "PROVISION", "start_char": 52210, "end_char": 52232, "source": "regex", "metadata": {"linked_statute_text": "Some changes were made in the Saurashtra Police Act", "statute": "Some changes were made in the Saurashtra Police Act"}}, {"text": "s. 3( 4)", "label": "PROVISION", "start_char": 55458, "end_char": 55466, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 55792, "end_char": 55796, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 56046, "end_char": 56056, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 3( 4)", "label": "PROVISION", "start_char": 56288, "end_char": 56296, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 56660, "end_char": 56670, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 56727, "end_char": 56734, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Mahajan", "label": "JUDGE", "start_char": 57001, "end_char": 57008, "source": "ner", "metadata": {"in_sentence": "In\n\nthat connection Mahajan J. (as he then was) observed that \"the phrase 'public purpose' has to be construed according to the spirit of the times in which the particular legislation is enacted.\""}}, {"text": "Art. 39", "label": "PROVISION", "start_char": 57199, "end_char": 57206, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Das", "label": "JUDGE", "start_char": 57356, "end_char": 57359, "source": "ner", "metadata": {"in_sentence": "In the same case, Das J. (as he then was) observed that \"no hard and fast definition can be laid down as to what is a 'public purpose' as the concept has been rapidly changing in all countries, but it is clear that it is the presence of the element of general interest of the community in an object or aim that transforms such object or aim into a public purpose, and whatever furthers the general interests of the community as opposed to the particular interest of the individual must be regarded as a public purpose.\""}}, {"text": "s. 3", "label": "PROVISION", "start_char": 58683, "end_char": 58687, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 59818, "end_char": 59828, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 61303, "end_char": 61310, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "SUPREMB COURT RBPORTS\n\n[1966) 3 S.C.R.", "label": "COURT", "start_char": 64764, "end_char": 64802, "source": "ner", "metadata": {"in_sentence": "There is also no reason why the State or the local authority should not provide for the terms on which\n\nresidential buildings,.would be}made,'-the specifications of such\n\nSUPREMB COURT RBPORTS\n\n[1966) 3 S.C.R.\n\nbuildings, and the time within which they should be made."}}, {"text": "s. 41", "label": "PROVISION", "start_char": 66041, "end_char": 66046, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 67715, "end_char": 67725, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "India", "label": "GPE", "start_char": 67762, "end_char": 67767, "source": "ner", "metadata": {"in_sentence": "Population in India is rising and more\nB\n\n....\n\n' '\n\nRODRICKS v. MAHARASHTRA (Wanchoo, J.) 911\n\nA or more industries are coming into being."}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 68393, "end_char": 68399, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 68546, "end_char": 68556, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 70097, "end_char": 70101, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 70428, "end_char": 70432, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 70462, "end_char": 70466, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27", "label": "PROVISION", "start_char": 71913, "end_char": 71918, "source": "regex", "metadata": {"statute": null}}, {"text": "Minimum Wages Act", "label": "STATUTE", "start_char": 71926, "end_char": 71943, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 27", "label": "PROVISION", "start_char": 72485, "end_char": 72490, "source": "regex", "metadata": {"statute": null}}, {"text": "Minimum Wages Act", "label": "STATUTE", "start_char": 72498, "end_char": 72515, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Minimum Wages Act", "label": "STATUTE", "start_char": 73050, "end_char": 73067, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 75224, "end_char": 75240, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 75415, "end_char": 75431, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 75550, "end_char": 75566, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 75962, "end_char": 75978, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 76350, "end_char": 76366, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 78769, "end_char": 78773, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18", "label": "PROVISION", "start_char": 79692, "end_char": 79697, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 20 to 28", "label": "PROVISION", "start_char": 79955, "end_char": 79972, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 18", "label": "PROVISION", "start_char": 80343, "end_char": 80348, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 28", "label": "PROVISION", "start_char": 80352, "end_char": 80357, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 83088, "end_char": 83092, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 83489, "end_char": 83506, "source": "ner", "metadata": {"in_sentence": "We may now refer to two decisions of the Bombay High Court in which s. 3(4) of the 1958 Act has been upheld, namely, (i) Ganesh Narayan v.\n\nCommissioner."}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 83516, "end_char": 83523, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 83784, "end_char": 83791, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 84047, "end_char": 84054, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 84402, "end_char": 84409, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Laws Act, 1912", "label": "STATUTE", "start_char": 84673, "end_char": 84693, "source": "regex", "metadata": {}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 84729, "end_char": 84736, "source": "regex", "metadata": {"linked_statute_text": "Delhi Laws Act, 1912", "statute": "Delhi Laws Act, 1912"}}, {"text": "Burah", "label": "OTHER_PERSON", "start_char": 84738, "end_char": 84743, "source": "ner", "metadata": {"in_sentence": "Burah's case(4) was a case of conditional legislation and not of delegated legislation."}}, {"text": "Garo Hills", "label": "GPE", "start_char": 84867, "end_char": 84877, "source": "ner", "metadata": {"in_sentence": "Act 22 of 1869 was enacted to remove the Garo Hills from the jurisdiction of the tribunals established under the General Regulations and Act and for other purposes."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 85047, "end_char": 85051, "source": "regex", "metadata": {"linked_statute_text": "Delhi Laws Act, 1912", "statute": "Delhi Laws Act, 1912"}}, {"text": "Jaintia Hills", "label": "GPE", "start_char": 85157, "end_char": 85170, "source": "ner", "metadata": {"in_sentence": "It was to apply in the first instance to Garo Hills but s. 9 thereof gave power to the Lieutenant-Governor to extend the provisions of this Act or any of them to the Jaintia Hills, the Naga Hills and to such portion of the Khasi Hills as for the time being forms part of British' India."}}, {"text": "Naga Hills", "label": "GPE", "start_char": 85176, "end_char": 85186, "source": "ner", "metadata": {"in_sentence": "It was to apply in the first instance to Garo Hills but s. 9 thereof gave power to the Lieutenant-Governor to extend the provisions of this Act or any of them to the Jaintia Hills, the Naga Hills and to such portion of the Khasi Hills as for the time being forms part of British' India."}}, {"text": "Khasi Hills", "label": "GPE", "start_char": 85214, "end_char": 85225, "source": "ner", "metadata": {"in_sentence": "It was to apply in the first instance to Garo Hills but s. 9 thereof gave power to the Lieutenant-Governor to extend the provisions of this Act or any of them to the Jaintia Hills, the Naga Hills and to such portion of the Khasi Hills as for the time being forms part of British' India."}}, {"text": "s. 9", "label": "PROVISION", "start_char": 85548, "end_char": 85552, "source": "regex", "metadata": {"linked_statute_text": "Delhi Laws Act, 1912", "statute": "Delhi Laws Act, 1912"}}, {"text": "s. 9", "label": "PROVISION", "start_char": 85852, "end_char": 85856, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Laws Act", "label": "STATUTE", "start_char": 86184, "end_char": 86198, "source": "regex", "metadata": {}}, {"text": "Delhi", "label": "GPE", "start_char": 86356, "end_char": 86361, "source": "ner", "metadata": {"in_sentence": "The main question in that case was about the extension of certain laws with necessary adaptations and modi· fications to Delhi."}}, {"text": "Mukherjea", "label": "JUDGE", "start_char": 87221, "end_char": 87230, "source": "ner", "metadata": {"in_sentence": "As pointed out by Mukherjea J. (as he was then) at p.\n\n1009 in Re."}}, {"text": "Delhi Laws Act", "label": "STATUTE", "start_char": 87270, "end_char": 87284, "source": "regex", "metadata": {}}, {"text": "Delhi Laws Act", "label": "STATUTE", "start_char": 87935, "end_char": 87949, "source": "regex", "metadata": {}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 87970, "end_char": 87977, "source": "regex", "metadata": {"linked_statute_text": "Delhi Laws Act", "statute": "Delhi Laws Act"}}, {"text": "sections 4", "label": "PROVISION", "start_char": 88658, "end_char": 88668, "source": "regex", "metadata": {"linked_statute_text": "Delhi Laws Act", "statute": "Delhi Laws Act"}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 88776, "end_char": 88783, "source": "regex", "metadata": {"linked_statute_text": "Delhi Laws Act", "statute": "Delhi Laws Act"}}, {"text": "s. 3( 4)", "label": "PROVISION", "start_char": 88822, "end_char": 88830, "source": "regex", "metadata": {"linked_statute_text": "Delhi Laws Act", "statute": "Delhi Laws Act"}}, {"text": "Act is ultra vires the powers of the legislature and as the Commissioner had no power under the Act", "label": "STATUTE", "start_char": 88843, "end_char": 88942, "source": "regex", "metadata": {}}, {"text": "ss. 4, 5", "label": "PROVISION", "start_char": 88969, "end_char": 88977, "source": "regex", "metadata": {"linked_statute_text": "Act is ultra vires the powers of the legislature and as the Commissioner had no power under the Act", "statute": "Act is ultra vires the powers of the legislature and as the Commissioner had no power under the Act"}}, {"text": "s. 3(4)", "label": "PROVISION", "start_char": 89002, "end_char": 89009, "source": "regex", "metadata": {"linked_statute_text": "Act is ultra vires the powers of the legislature and as the Commissioner had no power under the Act", "statute": "Act is ultra vires the powers of the legislature and as the Commissioner had no power under the Act"}}, {"text": "ss. 4 and 6", "label": "PROVISION", "start_char": 89055, "end_char": 89066, "source": "regex", "metadata": {"linked_statute_text": "Act is ultra vires the powers of the legislature and as the Commissioner had no power under the Act", "statute": "Act is ultra vires the powers of the legislature and as the Commissioner had no power under the Act"}}]}
{"document_id": "1966_3_919_925_EN", "year": 1966, "text": "K. P. CHOWDHARY v.\n\nSTATE OF MADHYA PRADESH & ORS.\n\nMarch 15, 1966\n\n[P.B. GAJENDRAGADKAR, C.J. K.N. WANCHOO, M. HIDAYATIJLLAH,\n\nJ.C. SHAn AND S.M. S1KR1. JJ.]\n\nCon.srtitution oj lndla, 1950, A.rt. 299(1)-lmplled eontrac11, if permissible.\n\nMadhya Pradesh Land Revenue Code, s. 155(b)-Recovery under implied contract.\n\nThe appellant gave tho high'\"t bids for two foreat contracts at an auction. As the amount of the contract waa more than what the Division Forest Officer coqld accept, the matter waa referred to the Chief Conservation of Forests who had the necessary authority to accept the bids. Aftsr the cloee of the auction the appellant had signed the contract form as required, and tho document& were aen.t to the Chief Conservator of Fortets for unction and signature. Before the Chief Conservator of Foresta could accept the contract, the appellant railed a dispute as to the marking of the trees. . As that diapute waa not settled to tho satisfaction of the\n\nappellant he refused to complete the contract. The Divisional Forest Officer\n\npve notice to the appellant that if he did not complete the formalities action would bo taken under the conditions of the auction to re-auction\n\nthe contract and if there WM My deficiency it would be recovered from him. He did not comply and ultimately he was infon\"ed that the two contracts had been cancelled and would be re-auctioned at hii risk. The contracts were re-auctioned at which there was certain deficiency in the amount. A letter was written to the Tehsildar for recovering this deiclent\n\na.mount from the appellant as arrears of land revenue as per the cond.tiom of auction. Thereupon, the appellant filed .a writ petition challenging the\n\nrecovery of the amount -.is arrears of land revenue as the contract was not signed or completed by him. The High Court dismissed the petition. In appeal to this Com:t. HELD: Section 155(b) of the Madhya Pradesh Land Revenue Code does not assist the State in realising this amount as arrears of land revenue.\n\nWhat was said in the earlier caecs by this Court with respect to s. 175(3) of the Governm&nt of India Act, 1935 applies w:th equal force to Art. 299(1) of the Constitution. Two consequences follow from these disons.\n\nThe first is that m view of Art. 299( 1) there can be no implied contract\n\nbetween the Government and another penon, tho reason being that if 1uch implied contracts between the Government and another person were allowed, they would in effect make Art. 299(1) weleas for then a person who had a contract with Government which waa not executed at all in the\n\nmanner provided in Art. 299( 1) could get away by saying that an implied contract may be inferred on the. facts and circumstances of a particular c.se. This is of coune not to say that if there ii a valid contract as enwaged by Art. 299(1), there may not be implications arisin~ out of such a contract. The eecond consequen.co which follows from the1e decisions ii that if the contract between the Government and another person i!I not in full compliance with Art. 299(1) it would be no contract at all and could not be enforced either by th• cto.oruaent or tty the other persoa as\n\na centract. [J24 A.DJ\n\nS1at1 of &luv v. Mf1. Karam Cltand Tlrapar (1962) 2 S.C.R. 827, $1tlt BikltrtJ,/ Joipurilll v. Union of India (1962) 2 S.C.R 880, Stall of the Wat &tilal v. M11.\n\nB.K. Molfdal (1962) Supp. 1 S.C.R. 876, Chaturbhuj Yitha/das Ja1411t v. M<>ralrwar Prashram (1954) S.C.R. 817, and (S) Unio11 of Jndiav. A.L. Ra/Ito Rmlt,[1964) 3 S.C.R.\n\n164, followed.\n\nIn the present case there was no contract between the appellant and tho Go\\-ernment before he bid at the auction oor was there any contract B between him and the Government after the auction was over as required by Art. 299( 1) of the Constitution. A3 there can be no implied conlraet\n\nbetween the Government and another person in view of the mandatory provision of Art. 299( l) of the Constitution there can be no queitioo of recoveiy of any money under an implied contract under cl. (b) of s. 155 of the Madhya Pradesh Land Revenue Code. [924 B-HJ\n\nCIVIL APPELLATF. JURISDICTION : CIVIL APPEAi. No. 669 OP C 1965.\n\nAppeal by special leave from the judgment and order dated October 5, 1961 of the Madhya Pradesh High Court in M. P.\n\nNo. 153 of 1961. • J. P. Goyal, for the appellant.\n\n1. N. Shroff, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nWanchoo J. This is an appeal by special leave against the judgment of the Madhya Pradesh High Court. The brief facts E\n\nnecessary for present purposes are these.\n\nA notice was issued by the Divisional Forest Officer, Jabalpur Division for auction of various contracts in that division in July 1959. The conditions of the auction specified inter a/ia (a) that no person would be allowed to bid for any forest contract at the auction unless he had signed the sale notice in token of his agreement to abide by the condi F tions thereof and deposited a sum of Rs. 500/- as earnest money in respect of each forest contract before bidding therefore; (b) that the Divisional Forest Officer reserved to himself the power without assigning any reason to accept the highest or any bid,\n\n(c) that the consideration due under a contract was to be payable where it exceeded Rs. 3,0CX>/-, in four equal instalments, the first G instalment being payable immediately at the close of the auction;\n\n(d) that the successful bidder had to sign immediately at the close of the auction the bid-sheet for the contract knocked down in bis •\n\nfavour; (e) that the sales of contracts beyond the power of sane tion of the Divisional Forest Officer were subject to the sanction of the competent authority and the successful bidder was bound H by his bid until orders were passed by the competent authority; (f} that the contract clecd and the security bond were to be executed by the successful bidder and his surety immediately at the close\n\nof the auction; (g) that if the successful bidder fails to pay the full amount of the consideration, or the first instalment or to furnish the security required or to complete the formalities, the earnest money deposited by him was to be forfeited to Government and the contract would be re-auctioned at the risk of the successful bidder and any deficiency happening on such re-sale would be recoverable from the successful bidder as arrears of land revenue; and (h) that the act of bidding was deemed to be a complete and unreserved acceptance of these conditions and others which are not material for our purposes.\n\nThe appellant bid for two contracts at the auction:and his-were the highest bids.\n\nAs the amount of the contract money was more than what the Divisional Forest Officer could accept, the matter was referred to the Chief Conservator of Forests who had the necessary authority to accept the bids. After the close of the auction the appellant had signed the contract form and a surety signed the security bond as required. These documents were sent to the Chief Conservator of Forests for sanction and signature.\n\nBefore however the Chief Conservator of Forests could accept the contract, the appellant raised a dispute as to the marking of the trees according to the material notified at the time of the auction.\n\nAs that dispute was not settled to the satisfaction of the appellant he refused to complete the contract or to pay the first instalment in respect thereof. Eventually the Divisional Forest Officer gave notice to the appellant on July 29, 1959 that if he did not complete the formalities within a week, action would be taken under the conditions of auction to re-auction the contract and if there was. any deficiency it would be recovered from him and the earnest money would be forfeited.\n\nHe did not however pay the first instalment due and ultimately on November 25, 1959 he was informed that the sale of the two contracts sold in the auction held on July 20, 1959 in his favour had been cancelled by the Chief Conservator of Forests and the amount of earnest money had been forfeited. He was also informed that the two contracts would be re-auctioned at his risk. Thereafter the contracts were reauctioned in January 1960. At the re-auction there was a deli-· ciency in the two contracts together of Rs. 51,500/-. The appellant was therefore asked to send this amount to the Divisional Forest Officer. When he failed to do so, a letter was addressed to the Tehsildar Jabalpur by the Divisional Forest Officer for recovering this amount as arrears of land revenue under the conditions of auction.\n\nThereupon the appellant filed a writ petition out of which the present appeal has arisen. The case of the appellant was that the claim of the respondent-State for recovery of the deficiency on re-sale was not covered by either s. 82 of the Indian Forest Act (No. 16 of 1927) or rules 28 and 29 of the Madhya Pradesh Forest M12Sup.Cl/66-13\n\nContract Rules or under any other provision of the law, and the A amount therefore could not be recovered as arrears of land revenue as the contract was not signed or completed by him.\n\nHe therefore claimed the issue of an appropriate writ 4uashing the notice issued to him and stopping the respondent from recovering as arrears of land revenue the sum of Rs. 51,500/-. The State contested the case and contended that recovery of the amount could B be effected as arrears of land revenue under s. 82 of the Indian Act read with rr. 28 and 29 of the Forest Contract Rules in view of the conditions of auction, which the appellant had accepted.\n\nThe petition was heard finally by a Full Bench of the High Court in view of a reference by a Divisional Bench. The Full Bench seems to have held that rr. 28 and 29 of the Forest Contract C Rules did not apply to the case as they dealt with breaches arising after the contract in writing had been executed. In this case the admitted position was that the contract in writing had never been signed by the Chief Conservator of Forests and therefore the question which fell to be considered, according to the Full Bench, was whether the liability arising under the conditions of auction D could be enforced and the deficiency on re-auction recoverd as arrears of land revenue even without the execution of a valid)( contract in writing. On this question the Full Bench went on to hold that this was a case of an implied contract resulting from the appellant's accepting the conditions of auction and that such an implied contract was not hit by Art. 299 of the Constitution as E that applied plainly to contracts which are required to be reduced to writing and an implied contract in its very nature was not such a contract. Finally the full Bench held that s. 155(b) of the Madhya Pradesh Land Revenue Code, 1959, applied to this case of implied contract and the amount could be recovered thereunder as arrears of land revenue. On this view the petition was dismissed. The • High Court having refused to grant a certificate, the appell:mt-J- F applied for and obtained special leave from this Court; and that is how the matter has come before us.\n\nTwo questions arise for decision in this appeal. The first is whether the High Court's view that Art. 299 of the Constitution docs not hit an implied contract and therefore the amount could be recovered under s. 155(b) of the Madhya Pradesh Land Revenue Code is correct. The second is that if that view is not correct, whether the amount can be recovered as arrears of land revenue under any other provision of law.\n\nIt may be mentioned that Art. 299(1) of the Constitution with which we are concerned is practically in the same terms as s. 175(3) of the Government of India Act, 1935. This Court had occasion 1to deal with s. 175 in The State of Bihar v. Messrs. Karam •\n\n• E\n\n' H\n\nChand Thapar(') It held that under s. 175(3), three conditions had to be satisfied before a binding contract against the Government could arise. These three conditions are:\n\n(1) the contract must be expressed to be made by the Governor or the Governor- General, (ii) it must be executed m writing, and (iii) the execution should be by such persons and in such manner as the Governor or the Governor-General might direct or authorise. This Court further held in that case that s. 175(3) did not prescribe any particular mode in which the authority must be conferred and where an ad hoc authority was conferred on any person, the requirement must be held to be satisfied.\n\nThe matter was again considered by this Court in Seth Bikhrai Jaipuria v. Union of India(2) It was again emphasised that s. 175(3) of the Government of India Act, 1935, required that a contract, if it was to bind the Government, had (a) to be expressed to be made by the Governor or Governor General, (b) to be executed on behalf of the Governor or Governor General, and (c) to be executed by an officer duly appointed in this behalf and in such manner as the Governor or the Governor General directed or authorised. It was also held that the provisions of s. 175(3) were mandatory, as the object of enacting these provisions was that the State should not be saddled with liability for unauthorised contracts.\n\nThe matter was considered again by this Court in State of West Bengal v. Messrs. B. K. Monda! and Sons(') It was held that the provisions contained in s. 175(3) were mandatory. The intention of Parliament in enacting the provision was that the State should not be burdened with liability based on unauthorised contracts. The provision was made in public interest and so the word \"shall\" used therein must be held to make it obligatory and not directory. Further the case of Chaturbhuj Vithaldas Jasani\n\nv. Moreshwar Prashram(4) was explained in that decision and it was held that it should be confined to its own facts in the context of the Representation of the People Act. Finally it was held in that case that s. 70 of the Indian Contract Act (No. 9 of 1872) could be invoked against the Government if the person invoking it could show that he had acted lawfully and had not intended to act gratuitously and the State had enjoyed the benefit.\n\nLastly this court had occasion to consider the matter again in Union of India v. A. L. Ra Ilia Ram,(5) and it was held that so long as all the requirements of s. 175(3) of the Government of India Act were fulfilled and were clear from the correspondence, s. 175(3) did not necessarily require the execution of any formal document.\n\n(l) [1%2] l S.C.R. 827.\n\n(2) [1962] 2 S.C.R. 880.\n\n(3) [1962] Supp. l s.C.R. 876.\n\n(4) [1954] S.C.R. 817.\n\n\n924 SUPREME COUllT REPORTS\n\n\nWhat was said in these cases with respect to s. 175(3) of the Government of India Act, 1935, applies with equal force to Art. 299 (I) of the Constitution. Two consequences follow from these decisions. The first is that in view of Art. 299(1) there can be no implied contract between the Government and another person, the reason being that if such implied contracts between the Government and another person were allowed, they would in effect make Art. 299(1) useless, for then a person who had a contract with Governn; ent which was not executed at all in the manner provided in Art. 299(1) could get away by saying that an implied contract may be inferred on the facts and circumstances of a particular case. This is of course not to say that if there is a valid contract as envisaged by Art. 299(1), there may not be implicacations arising out of such a contract. The second consequence which follows from the'e decisions is that if the contract between Government and another person is not in full compliance with Art. 299(1) it would be no contract at all and could not be enforced either by the Government or by the other person as a contract.\n\nIn the prsent case it is not in dispute that there never was a contract as required by Art. 299(1) of the Constitution.\n\nNor can the fact that the appellant bid at the auction and signed the bid-sheet at the close thereof or signed the declaration necessary before he could bid at the auction amount to a contract between him and the Government satisfying all the conditions of Art. 299(1).\n\nThe position therefore is that there was no contract between the appellant and the Government before he bid at the auction, nor was there any contract between him and the Government after the auction was over as required by Art. 299(1) of the Constitution. Further, in view of the mandatory terms of Art. 299(1), no implied contract could be spelled out between the Government and the appellant at the stage of bidding for Art. 299 in effect rules out all implied contracts between Government and another person.\n\nThe view taken by the High Court that s. 155 (b) of the Madhya Pradesh Land Revenue Code which provides for recovery of money as arrears of land revenue would therefore enure in favour of the Government and enable it to recover the deficiency cannot be sustained. That clause provides for recovery of all moneys falling due to the State Government under any grant, lease or contract and says that they shall be recoverable in the same manner as arrears of land revenue. The High Court was of the view that the word \"contract'\" in this clause includes an implied contract.\n\nBut if there can be no implied contract between the Government and another person in view of the mandatory provision of Art. 299(1) of the Constitution there can be no question of recovery of any money under an implied contract under cl. (b) of s. 155.\n\nThe view therefore taken by the High Court that this amount could be recovered under s. 155(b) is not correct.\n\n. •'\n\nThis brings us to the second question, namely, whether the amount can be recovered under any other provision of law as arrears of land revenue. Jn this connection learned counsel for the State has referred us to s. 82 and s. 85 of the Indian Forest Act. The question whether the amount can be recovered either under s. 82 or under s. 85 of the Indian Forest Act read with the rules framed thereunder has not been investigated by the High Court. The view of the High Court that rr. 28 and 29 of the Forest Contract Rules apply after a contract in writing has been executed appears to be correct. But the question whether the State can still recover the amount as arrears of land revenue by virtue of the conditions of auction, even though rr. 28 and 29 do not apply has not been investigated. This question will require investigation before the petition can be finally disposed of. The appellant had claimed in para 17 of the petition that the claim of the State for recovery of the deficiency on re-sale was not covered under any other provision of law so as to make it recoverable as arrears of land revenue. That question has still to be investigated and it would be for the State to show whether the amount can be recovered under any provision of law or rules relating to forest contracts. So the matter will have to be remanded for further investigation on these lines.\n\nWe therefore allow the appeal and hold that s. 155(b) of the Madhya Pradesh Land Revenue Code does not assist the State in realising this amount as arrears of land revenue. We however remand the matter to the High Court for determining after hearing both parties whether there is any other provision of law or rules which would permit the recovery of this amount in view of the conditions of auction. In the circumstances we order parties to bear their own costs of this Court.\n\nAppeal allowed.", "total_entities": 84, "entities": [{"text": "K. P. CHOWDHARY", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "K. P. CHOWDHARY", "offset_not_found": false}}, {"text": "STATE OF MADHYA PRADESH & ORS", "label": "RESPONDENT", "start_char": 20, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH & ORS", "offset_not_found": false}}, {"text": "March 15, 1966", "label": "DATE", "start_char": 52, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "March 15, 1966\n\n[P.B. GAJENDRAGADKAR, C.J. K.N. WANCHOO, M. HIDAYATIJLLAH,\n\nJ.C. SHAn AND S.M. S1KR1."}}, {"text": "P.B. GAJENDRAGADKAR, C.J.", "label": "JUDGE", "start_char": 69, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K.N. WANCHOO", "label": "JUDGE", "start_char": 95, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "S1K", "label": "PROVISION", "start_char": 147, "end_char": 150, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh Land Revenue Code", "label": "STATUTE", "start_char": 240, "end_char": 272, "source": "regex", "metadata": {}}, {"text": "s. 155(b)", "label": "PROVISION", "start_char": 274, "end_char": 283, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh Land Revenue Code", "statute": "Madhya Pradesh Land Revenue Code"}}, {"text": "Section 155(b)", "label": "PROVISION", "start_char": 1876, "end_char": 1890, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 175(3)", "label": "PROVISION", "start_char": 2076, "end_char": 2085, "source": "regex", "metadata": {"statute": null}}, {"text": "India Act, 1935", "label": "STATUTE", "start_char": 2107, "end_char": 2122, "source": "regex", "metadata": {}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 2151, "end_char": 2162, "source": "regex", "metadata": {"linked_statute_text": "India Act, 1935", "statute": "India Act, 1935"}}, {"text": "Art. 299( 1)", "label": "PROVISION", "start_char": 2256, "end_char": 2268, "source": "regex", "metadata": {"linked_statute_text": "India Act, 1935", "statute": "India Act, 1935"}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 2475, "end_char": 2486, "source": "regex", "metadata": {"linked_statute_text": "India Act, 1935", "statute": "India Act, 1935"}}, {"text": "Art. 299( 1)", "label": "PROVISION", "start_char": 2604, "end_char": 2616, "source": "regex", "metadata": {"linked_statute_text": "India Act, 1935", "statute": "India Act, 1935"}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 2813, "end_char": 2824, "source": "regex", "metadata": {"linked_statute_text": "India Act, 1935", "statute": "India Act, 1935"}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 3045, "end_char": 3056, "source": "regex", "metadata": {"linked_statute_text": "India Act, 1935", "statute": "India Act, 1935"}}, {"text": "S1", "label": "PROVISION", "start_char": 3191, "end_char": 3193, "source": "regex", "metadata": {"statute": null}}, {"text": "(1962) 2 S.C.R. 827", "label": "CASE_CITATION", "start_char": 3234, "end_char": 3253, "source": "regex", "metadata": {}}, {"text": "(1962) 2 S.C.R 880", "label": "CASE_CITATION", "start_char": 3301, "end_char": 3319, "source": "regex", "metadata": {}}, {"text": "B.K. Molfdal", "label": "RESPONDENT", "start_char": 3354, "end_char": 3366, "source": "ner", "metadata": {"in_sentence": "B.K. Molfdal (1962) Supp."}}, {"text": "[1964) 3 S.C.R.\n\n164", "label": "CASE_CITATION", "start_char": 3508, "end_char": 3528, "source": "regex", "metadata": {}}, {"text": "Art. 299( 1)", "label": "PROVISION", "start_char": 3756, "end_char": 3768, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 299( l)", "label": "PROVISION", "start_char": 3907, "end_char": 3919, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 155", "label": "PROVISION", "start_char": 4033, "end_char": 4039, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATF. JURISDICTION", "label": "PETITIONER", "start_char": 4092, "end_char": 4121, "source": "ner", "metadata": {"in_sentence": "924 B-HJ\n\nCIVIL APPELLATF."}}, {"text": "J. P. Goyal", "label": "OTHER_PERSON", "start_char": 4294, "end_char": 4305, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal, for the appellant."}}, {"text": "N. Shroff", "label": "OTHER_PERSON", "start_char": 4330, "end_char": 4339, "source": "ner", "metadata": {"in_sentence": "N. Shroff, for the respondents."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 4407, "end_char": 4414, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nWanchoo J. This is an appeal by special leave against the judgment of the Madhya Pradesh High Court."}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 4481, "end_char": 4506, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nWanchoo J. This is an appeal by special leave against the judgment of the Madhya Pradesh High Court."}}, {"text": "July 29, 1959", "label": "DATE", "start_char": 7480, "end_char": 7493, "source": "ner", "metadata": {"in_sentence": "Eventually the Divisional Forest Officer gave notice to the appellant on July 29, 1959 that if he did not complete the formalities within a week, action would be taken under the conditions of auction to re-auction the contract and if there was."}}, {"text": "November 25, 1959", "label": "DATE", "start_char": 7807, "end_char": 7824, "source": "ner", "metadata": {"in_sentence": "He did not however pay the first instalment due and ultimately on November 25, 1959 he was informed that the sale of the two contracts sold in the auction held on July 20, 1959 in his favour had been cancelled by the Chief Conservator of Forests and the amount of earnest money had been forfeited."}}, {"text": "July 20, 1959", "label": "DATE", "start_char": 7904, "end_char": 7917, "source": "ner", "metadata": {"in_sentence": "He did not however pay the first instalment due and ultimately on November 25, 1959 he was informed that the sale of the two contracts sold in the auction held on July 20, 1959 in his favour had been cancelled by the Chief Conservator of Forests and the amount of earnest money had been forfeited."}}, {"text": "Jabalpur", "label": "GPE", "start_char": 8421, "end_char": 8429, "source": "ner", "metadata": {"in_sentence": "When he failed to do so, a letter was addressed to the Tehsildar Jabalpur by the Divisional Forest Officer for recovering this amount as arrears of land revenue under the conditions of auction."}}, {"text": "s. 82", "label": "PROVISION", "start_char": 8778, "end_char": 8783, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Forest Act", "label": "STATUTE", "start_char": 8791, "end_char": 8808, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 82", "label": "PROVISION", "start_char": 9385, "end_char": 9390, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 299", "label": "PROVISION", "start_char": 10476, "end_char": 10484, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 155(b)", "label": "PROVISION", "start_char": 10689, "end_char": 10698, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh Land Revenue Code, 1959", "label": "STATUTE", "start_char": 10706, "end_char": 10744, "source": "regex", "metadata": {}}, {"text": "Art. 299", "label": "PROVISION", "start_char": 11177, "end_char": 11185, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Land Revenue Code, 1959", "statute": "the Madhya Pradesh Land Revenue Code, 1959"}}, {"text": "s. 155(b)", "label": "PROVISION", "start_char": 11289, "end_char": 11298, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Land Revenue Code, 1959", "statute": "the Madhya Pradesh Land Revenue Code, 1959"}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 11522, "end_char": 11533, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Land Revenue Code, 1959", "statute": "the Madhya Pradesh Land Revenue Code, 1959"}}, {"text": "s. 175(3)", "label": "PROVISION", "start_char": 11618, "end_char": 11627, "source": "regex", "metadata": {"linked_statute_text": "the Madhya Pradesh Land Revenue Code, 1959", "statute": "the Madhya Pradesh Land Revenue Code, 1959"}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 11635, "end_char": 11664, "source": "regex", "metadata": {}}, {"text": "s. 175", "label": "PROVISION", "start_char": 11704, "end_char": 11710, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Chand Thapar", "label": "JUDGE", "start_char": 11763, "end_char": 11775, "source": "ner", "metadata": {"in_sentence": "This Court had occasion 1to deal with s. 175 in The State of Bihar v. Messrs. Karam •\n\n• E\n\n' H\n\nChand Thapar(') It held that under s. 175(3), three conditions had to be satisfied before a binding contract against the Government could arise."}}, {"text": "s. 175(3)", "label": "PROVISION", "start_char": 11798, "end_char": 11807, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s. 175(3)", "label": "PROVISION", "start_char": 12239, "end_char": 12248, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s. 175(3)", "label": "PROVISION", "start_char": 12555, "end_char": 12564, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 12572, "end_char": 12601, "source": "regex", "metadata": {}}, {"text": "s. 175(3)", "label": "PROVISION", "start_char": 12991, "end_char": 13000, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "s. 175(3)", "label": "PROVISION", "start_char": 13296, "end_char": 13305, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Parliament", "label": "ORG", "start_char": 13339, "end_char": 13349, "source": "ner", "metadata": {"in_sentence": "The intention of Parliament in enacting the provision was that the State should not be burdened with liability based on unauthorised contracts."}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 13786, "end_char": 13818, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 70", "label": "PROVISION", "start_char": 13858, "end_char": 13863, 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"source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 14791, "end_char": 14802, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 15009, "end_char": 15020, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 15141, "end_char": 15152, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 15351, "end_char": 15362, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 15579, "end_char": 15590, "source": "regex", "metadata": {"linked_statute_text": "the Government of India Act, 1935", "statute": "the Government of India Act, 1935"}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 15799, "end_char": 15810, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 16090, "end_char": 16101, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 16328, "end_char": 16339, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 16404, "end_char": 16415, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 299", "label": "PROVISION", "start_char": 16527, "end_char": 16535, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 155", "label": "PROVISION", "start_char": 16656, "end_char": 16662, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 299(1)", "label": "PROVISION", "start_char": 17311, "end_char": 17322, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 155", "label": "PROVISION", "start_char": 17436, "end_char": 17442, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 155(b)", "label": "PROVISION", "start_char": 17530, "end_char": 17539, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 82", "label": "PROVISION", "start_char": 17775, "end_char": 17780, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 85", "label": "PROVISION", "start_char": 17785, "end_char": 17790, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Forest Act", "label": "STATUTE", "start_char": 17798, "end_char": 17815, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 82", "label": "PROVISION", "start_char": 17879, "end_char": 17884, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 85", "label": "PROVISION", "start_char": 17894, "end_char": 17899, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Forest Act", "label": "STATUTE", "start_char": 17907, "end_char": 17924, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 155(b)", "label": "PROVISION", "start_char": 18982, "end_char": 18991, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_3_926_932_EN", "year": 1966, "text": "NATl-llA AGARWALLA & ANOTHER\n\nMUSST. JAHANARA BEGUM & OTHERS\n\nMarch 15, 1966\n\n[P. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO, M.\n\nHIDAYATULLAH, J.C. SHAH ANDS. M. S!KRI. JJ.]\n\nAssam Non.Agricul1ural Urban Areas Tenancy Act, 1955, s. 5(1) (a)- protecrio11 to 1enants agai11st ejectment-ll'lietlier availclble where dec:re.:\n\nfor ejectment already obtciined.\n\nA decree for cjcctment was passed against ahc appellants in November 1950 in a suit filed against them by the respondcnLc; and was later confinn cd by the High Court. 1be exccuaion proceedings began in August 1954 iUld were pending when the Assam NonAgncultural Urban Areas Tenancy Act 1955 came: into force from June 26,\n\n1955. 1be appellants thereupon claimed the benefit of s. 5(1 )(a) of the Act (which grants protection from eviction to tenants under certain circumstances) on the ground that the protection of Seciion 5 was available not only in pending !>Uits and appeals but also in pending execution cases. This claim was rejected by the execution Coun and an appeal to the High Court was also dismissed.\n\nOn appeal 10 this Court,\n\nHELD: 1bc prolection under Section S(l}(a) was not available: where a decree in cjectmcnt had already hecn obtained.\n\nSection 5 ( l) begins by stating \"not withsunding anything in any contract or in any la.w for 1he time being in force hut it does not include decrees for ejcct.mcnt already obtained, in the non-<>hstante clause.\n\nClause (a) of Section 5 (l) protects tenants of land from cjectmcot by the landlord in tho; e cases in wh; ch the tenant entitled to build on the land under his contract ha~ actually built a permanent structure within five years from the d; ite of his contract, or has without l>Uch right built with the knowledge and acquiescence of the landlord. Such tenant may not be ejected except for non-payment of rent.\n\nClause (a) applies alike to contracts mldc before or after the commencement of the Act but as\n\nit intends 10 operate on the rij!hts of the landlol'd. rights ;1lrcady enforced and detcnnined cannot be 'aid to be involved and the clause must contemplate a suit and not execution proce-;:dings.\n\nThe fact that Section 14 of the Sylhct. Non-Agricultural Urban Areas Tenancy Act 1947 repeakd by the 1955 Act and Section 6( I) of hoth Assam Act 13 of 1949 and As.sam Act 3 of 1946 provided specially for execution proceedings clearly shows that where the Assam Legislature wito; hcd it, it included execution proceedings within the pr()(eclion.\n\nSuresh Chandra Datt\" v. Aslwtoslr Dulla mzcl Others A.I.R. 1960 Aso; am 24, referred to.\n\nQ)mparini tatulc of different states is not to be commended because similarity or v:iriation in the laws of different States is not necessarily indicative of a kindred or a changed intention.\n\nEnactments drafted by H different hands, at different times and to satisfy different requirements of a local character. seldom afford tangible or sure aid in construction. [9:!9 F~ F: 9311 E: 931 B-DI\n\nA CIVIL APPELLATE JURISDICTION : Civil Appeal No. 893 of 1963\n\nAppeal by special leave from the judgment and order dated August 14, 1959 of the Assam High Court in Appeal from Original Order No. 21 of 1959.\n\nM. C. Setalvad, B. P. Maheshwari and M. S. Narasimhan, B for the appellants.\n\nB. Sen, and P. K. Ghosh, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nHidayatullah J. This is an appeal by special leave against an order of the High Court of Assam dated August 14, 1959 rejecting summarily an appeal in an execution case. The appellants against whom the decree for ejectment is being executed are the widow and son of one Maliram Agarwala whose father Arjun Das had taken on lease the suit land from one Mohd. Soleman, predecessor-in-interest of the respondents.\n\nThe decree was passed as far back as November 28, 1950 in a title suit filed .against the appellants and was later confirmed by the High Court.\n\nThe present execution began on August 16, 1954 and was pending in the court of the Subordinate Judge, L.A.D., Gauhati when the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (Assam Act 12 of 1955) came into force from June 26, 1955.\n\nThe appellants thereupon claimed the benefit of s. 5 of the Act which grants protection from eviction to tenants, under certain circumstances. The execution Court heard arguments and on November 12, 1957 held that the protection of s. 5 was available not only in pending suits and appeals but also in pending execution cases.\n\nIn reaching this conclusion the learned Judge followed a decision of the Assam High Court reported in Harsukh Saraqgi & Anr. v. Mashu/a/ Khemani & Anr(l) and of the Calcutta High Court in Habiba Bibi and others v. Ram Ranjan Mullick and others(2) He accordingly fixed the case for evidence to find out if there existed facts necessary for the application of s. 5 of the Act. Subsequently, the Presiding Judge having changed, the point was reopened on June 6, 1959 by the successor Judge. That learned Judge following a later decision of the Assam High Court (since reported in Suresh Chandra Datta v. Ashutosh Dutta and others)(') held that s. 5(1)(a) was not applicable to execution proceedings and the pending execution must proceed according to law. The only question in this case is whether the provisions of s. 5(l)(a) of the Tenancy Act apply to pending execution proceedings.\n\nThe Act was passed \"to regulate in certain respects the relationship between landlord and tenant in respect of non-agricultural\n\n(I) A.I.R. 1957 Assam 22.\n\n(2) A.I.R. 1937 Cal 207,\n\n(3) A.I.R. 1960 Assam 24.\n\nland in urban areas of the State of Assam.\" It consists of 14 sec- A tions. Section 5, with which we are primarily concerned, may be read in full.\n\nIt reads : \"5. Protection from eviction-\n\n(!) Notwithstanding anything in any contract or in any law for the time being in force-\n\n(a) where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such, contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rent;\n\n( b) where a tenant has effected improvements on the land of the tenancy under the terms whereof he is not entitled to effect such improvements, the tenant shall not be ejected by the landlord from the land of the tenancy unless compensation for reasonable improvements has been paid to the tenant.\n\n(2) No tenant shall be ejected by his landlord from the land of the tenancy except in execution of a decree for ejectment passed by a competent civil court.\n\n(3) No decree for ejectment passed on the ground of non-payment of rent shall be executed within a period of thirty days from the date of the decree and ifthe tenant pays into the Court whose duty it is to execute the decree the entire amount payable under the decree within the aforesaid period, the Court shall record the decree as satisfied.\"\n\nThe remaining sections may be shortly noticed before we proceed to construes. 5. The first three sections contain respectively the short title, the extent of application and the definitions of terms in the Act. Section 4 puts an obligation upon a tenant to pay rent for his holding at fair and equitable rates. Section 6 lays down how compensation for improvements in a suit for cjectment against a tenant is to be calculated and includes within improve-\n\n' .-\n\n) -\n\nA . ments structures, which the tenant entitled to build has actually built after the expiry of the period of five years referred to in cl.\n\n(a) of sub-s. (I) of s. 5. Sections 7, 8 and 9 deal with the question of enhancement of rent from different points of view.\n\nSection 10 prohibits the realisation of any \"salami\". Section 11 provides that no suit for ejectment, except for arrears of rent, shall be instituted until after the expiration of one month from the date of the receipt of by the tenant of a 1111tice in writing by the landlord B\n\nrequiring the tenant to surrender possession of the land in favour of the landlord. Section 12 shows how the notices have to be served and s. 13 gives the power to make rules.\n\nBy s. 14, the Sylhet Non-Agricultural Urban Areas Tenany Act, 1917, (Assam Act\n\n10 of 1947) was repealed.\n\nThe only question in this appeal is whether s. 5(l)(a) of the Act, which we have reproduced above, applies to execution cases in respect of decrees for ejectment granted before the coming into force of the Tenancy Act. The answer to this question will determine which of the two orders passed by the respective pre- D siding Judges was right.\n\nTwo methods of approach were adopted by counsel in this appeal. One was to construe the words of the fifth section taken by themselves or in comparison with those employed in other Acts of the Assam Legislature. The second was to compare and contra! s. 5 of the Assam Act with enactments in rent control E Acts of other States. The second method, although sometimes instructive, is not to be commended because similarity or variation in the laws of different States is not necessarily indicative of a kindred or a change intention. Enactments drafted by different hands, at different times and to satisfy different requirements\n\nof a local character, seldom afford tangible or sure aid in construction.\n\nWe would, therefore, put aside the Rent Control Acts of Madras, Bihar, Delhi and other States, because in these States the problem of accommodation in relation to the availability of lands and houses and the prior legislative history and experience, cannot be same as in Assam. We shall however, refer to other Rent Control Acts of the Assam Legislature because they do not suffer from this weakness and may throw some light on how the legislature was accustomed to view such matters. But before we do so we shall consider s. 5 taken by itself.\n\nThe section consists of three sub-sections and it is helpful to view the provisions backwards, that is, from the last subsection to the first. The third sub-section deals with decree of ejectment passed on the ground of non-payment of rent.\n\nIt affords a last chance to the tenant to retain the land of his tenancy by making such a decree unexecutable for a period of 30 days from its date so that the tenant may, if he cares, deposit\n\nthe amount ·.>f the decree in the court which will execute that A decree.\n\nOn the tenant so paying, the decree is recorded as satisfied.\n\nThis sub-section must apply to all executions which come within its terms because of the clear language \"no decree\n\n- , for ejcctment . , .. shall he executed\" and \"the Court shall record the decree as satisfied\". These arc peremptory words and they do not admit of any exception.\n\nAll decrees for ejectment in B which thirty days' time had not passed were affected hut, it is clear, that decrees whkh did not come within the terms of the sub-section remained executable.\n\nWe may now examine the second sub-section which also takes away some rights of landlords but leaves them free to execute decrees other than those on which the section places an embargo, C That sub-section provides that no tenant shall be ejected by his landlord from the land of his tenancy except in execution of a decree for ejectment passed hy a competent civil court.\n\nAlthough this sub-section takes away the right of cjcctment in other wa)s, if any, it recognises that cjectment is possible provided there is a decree of a competent civil court. D\n\nWe may now consider the first sub-section. Certain matters appear on its face. The sub-section does not speak of an ejectment decree, but of the right of the landlord to eject his tenant.\n\nIt begins by stating .. notwithstanding anything in any contract or in any law for the time being in force\" but it does not include decrees for ejectmcnt already obtained, in the 11011-obstante clause.\n\nSuch decrees could have easily been named, to include them within the protective pro\\'isions, but they were not.\n\nThe operati\\'e parts of the sub-section protect tenants under two circumstances which are mentioned as (a) and (b). Taking (b) first : if the tenant effects improvements on the land which he is not entitled to effect. the landlord may not eject him unless he pays reasonable comrensation. Who will assess the compensation is laid down in s. 6 but that section specifically mentions a suit for cjectment and not execution proceeding.\n\nAll this seems to suggest that s. 5 (i) (b) is intended to operate on rights of the landlord which arc being enforced hy a suit hut not on rights already enforced and determined.\n\nBy speaking of the curtailment of the landlord's right and hy omitting to provide for decrees into which the rights merge and by mentioning the provisions of s. 6 arc to be irl\\oked in a suit for ejectmcnt, it appears that the decrees as such are not put under the same embargo.\n\nSo far there is nothing in s. 5 which would suggest that its pro, isions cover decrees in which the rights had passed before the coming into force of the Act.\n\nIt remains to see whether s. 5 (l)(a) strikes a different note.\n\nPart (a) ofs. 5 (I) is constnrcted\n\nf -\n\non very similar lines and does not admit a different approach.\n\nIt protects tenants of land from ejectment by the landlord in those cases in which the tenant entitled to build on the land under his contract has actually built a permanent structure within five years from the date of his contract, or has without such right built with the knowledge and acquiescence of the landlord. Such tenant may not be ejected except for non-payment of rent. Clause (a) applies alike to contracts made before or after the commencement of the Act. This creates some doubt but as it intends to operate on the rights of the landlord seeking to enforce them against a tenant, who claims that he cannot be ejected, the clause must again contemplate a suit and not execution proceedings. There is nothing to distinguish cl. (a) from cl. (b) in so far as execution of decrees already granted is concerned.\n\nThe decision of the Assam High Court in Suresh Chandra v.\n\nAshutosh Dutta(') expressed the same conclusion but on a slightly different reasoning. The conclusion is further strengthened when one reads the cognate sections of the earlier Assam Acts passed by the same Legislature. Section 14 of the Sylhet Non-Agricultural Urban Areas Tenancy Act, 1947 (Assam Act 10 of 1947) now repealed by the Act we are considering, provided in clear terms that proceedings in execution were included. It reads as follows:\n\n\"14. Pending suits.\n\nThe provisions of this Act shall have effect in respect of all suits or proceedings in execution, for ejectment of a person, who would under the provisions of this Act be an occupancy tenant, which are pending at the date of commencement of this Act.\"\n\nSimilarly, s. 6(1) of the Assam Urban Areas Rent Control Act 1949 (Assam Act 13 of 1949) and s. 6(1) of the Assam Urban Areas Rent Control Act, 1946 (Assam Act 3 of 1946) provided specially for execution proceedings. These two sections read the same and only one of them may be read. Section 6 (I) of Act 13 of 1949 read:\n\n\"6. Bar against passing and execution of decree and orders.\n\n(a) No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and perform the conditions of the tenancy:\n\n(I) A.I.R. 1960 Assam 24.\n\nProvided that nothing in this sub section shall apply in a suit or pro ceedings for eviction of the tenant from the house-\n\n( a) where the tenant has done any act contrary to the provisions of clause (m), clause (o) or clause (p) of section\n\n108 of the Transfer of Property Act, 1882 or 10 the spirit of the aforesaid clauses in areas where the Act does not apply, or\n\n(b) where the temnt has been guilty of conduct which is a nuisance or an annoyance to the occupiers of the adjoin ing or neighbouring houses, or\n\n(c) where the house is bona fide required by the landlord either for pur poses of repairs or re-building, or for his own occupation or for the occupa tion of any person for whose benefit the house is held, or where the landlord can 'how any other cause which may be deemed satisfactory by the Court, or\n\n(d) where the tenant sublets the house or any part thereof or otherwise transfers his interest in the house or any part thereof without pcm1ission in writing from the landlord.\n\n(1966] 3 S.C.R.\n\nThese enactments, which arc quite explicit, show that where the Assam Legislature wished it, it included execution proceedings within the protection. Being aware that if execution proceedings are to be included they need to be mentioned and having at hand\n\nthe former sections as models, the departure appears to be deli berate. The language chosen places the right under an embargo G but does not say that decrees already won would become unexecu table thus stating clearly that they were not to be affected. The decision under appeal was, therefore, right.\n\nThe appeal has no force; it fails and will be dismissed with costs. . Appeal di.m1issed.\n\n' -·", "total_entities": 73, "entities": [{"text": "MUSST. JAHANARA BEGUM & OTHERS", "label": "RESPONDENT", "start_char": 30, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "MUSST. JAHANARA BEGUM & OTHERS", "offset_not_found": false}}, {"text": "March 15, 1966", "label": "DATE", "start_char": 62, "end_char": 76, "source": "ner", "metadata": {"in_sentence": "JAHANARA BEGUM & OTHERS\n\nMarch 15, 1966\n\n[P. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO, M.\n\nHIDAYATULLAH, J.C. SHAH ANDS."}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 79, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 108, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO", "offset_not_found": false}}, {"text": "HIDAYATULLAH, J", "label": "JUDGE", "start_char": 127, "end_char": 142, "source": "metadata", "metadata": {"canonical_name": "HIDAYATULLAH, J", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 143, "end_char": 150, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Urban Areas Tenancy Act, 1955", "label": "STATUTE", "start_char": 196, "end_char": 225, "source": "regex", "metadata": {}}, {"text": "s. 5(1)", "label": "PROVISION", "start_char": 227, "end_char": 234, "source": "regex", "metadata": {"linked_statute_text": "Urban Areas Tenancy Act, 1955", "statute": "Urban Areas Tenancy Act, 1955"}}, {"text": "Uld were pending when the Assam NonAgncultural Urban Areas Tenancy Act 1955", "label": "STATUTE", "start_char": 570, "end_char": 645, "source": "regex", "metadata": {}}, {"text": "June 26,\n\n1955", "label": "DATE", "start_char": 668, "end_char": 682, "source": "ner", "metadata": {"in_sentence": "1be exccuaion proceedings began in August 1954 iUld were pending when the Assam NonAgncultural Urban Areas Tenancy Act 1955 came: into force from June 26,\n\n1955."}}, {"text": "s. 5(1 )(a)", "label": "PROVISION", "start_char": 732, "end_char": 743, "source": "regex", "metadata": {"linked_statute_text": "Uld were pending when the Assam NonAgncultural Urban Areas Tenancy Act 1955", "statute": "Uld were pending when the Assam NonAgncultural Urban Areas Tenancy Act 1955"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 1214, "end_char": 1223, "source": "regex", "metadata": {"linked_statute_text": "Uld were pending when the Assam NonAgncultural Urban Areas Tenancy Act 1955", "statute": "Uld were pending when the Assam NonAgncultural Urban Areas Tenancy Act 1955"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 1441, "end_char": 1450, "source": "regex", "metadata": {"linked_statute_text": "Uld were pending when the Assam NonAgncultural Urban Areas Tenancy Act 1955", "statute": "Uld were pending when the Assam NonAgncultural Urban Areas Tenancy Act 1955"}}, {"text": "Section 14", "label": "PROVISION", "start_char": 2146, "end_char": 2156, "source": "regex", "metadata": {"statute": null}}, {"text": "Non-Agricultural Urban Areas Tenancy Act 1947", "label": "STATUTE", "start_char": 2172, "end_char": 2217, "source": "regex", "metadata": {}}, {"text": "Section 6( I)", "label": "PROVISION", "start_char": 2246, "end_char": 2259, "source": "regex", "metadata": {"linked_statute_text": "Non-Agricultural Urban Areas Tenancy Act 1947", "statute": "Non-Agricultural Urban Areas Tenancy Act 1947"}}, {"text": "Assam Legislature", "label": "ORG", "start_char": 2388, "end_char": 2405, "source": "ner", "metadata": {"in_sentence": "Non-Agricultural Urban Areas Tenancy Act 1947 repeakd by the 1955 Act and Section 6( I) of hoth Assam Act 13 of 1949 and As.sam Act 3 of 1946 provided specially for execution proceedings clearly shows that where the Assam Legislature wito; hcd it, it included execution proceedings within the pr()(eclion."}}, {"text": "M. C. Setalvad", "label": "LAWYER", "start_char": 3172, "end_char": 3186, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, B. P. Maheshwari and M. S. Narasimhan, B for the appellants."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 3188, "end_char": 3204, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, B. P. Maheshwari and M. S. Narasimhan, B for the appellants."}}, {"text": "M. S. Narasimhan", "label": "LAWYER", "start_char": 3209, "end_char": 3225, "source": "ner", "metadata": {"in_sentence": "M. C. Setalvad, B. P. Maheshwari and M. S. Narasimhan, B for the appellants."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 3250, "end_char": 3256, "source": "ner", "metadata": {"in_sentence": "B. Sen, and P. K. Ghosh, for the respondents."}}, {"text": "P. K. Ghosh", "label": "LAWYER", "start_char": 3262, "end_char": 3273, "source": "ner", "metadata": {"in_sentence": "B. Sen, and P. K. Ghosh, for the respondents."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 3341, "end_char": 3353, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatullah J. This is an appeal by special leave against an order of the High Court of Assam dated August 14, 1959 rejecting summarily an appeal in an execution case.", "canonical_name": "HIDAYATULLAH, J"}}, {"text": "August 14, 1959", "label": "DATE", "start_char": 3442, "end_char": 3457, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nHidayatullah J. This is an appeal by special leave against an order of the High Court of Assam dated August 14, 1959 rejecting summarily an appeal in an execution case."}}, {"text": "Maliram Agarwala", "label": "OTHER_PERSON", "start_char": 3610, "end_char": 3626, "source": "ner", "metadata": {"in_sentence": "The appellants against whom the decree for ejectment is being executed are the widow and son of one Maliram Agarwala whose father Arjun Das had taken on lease the suit land from one Mohd."}}, {"text": "Arjun Das", "label": "OTHER_PERSON", "start_char": 3640, "end_char": 3649, "source": "ner", "metadata": {"in_sentence": "The appellants against whom the decree for ejectment is being executed are the widow and son of one Maliram Agarwala whose father Arjun Das had taken on lease the suit land from one Mohd."}}, {"text": "Mohd. Soleman", "label": "OTHER_PERSON", "start_char": 3692, "end_char": 3705, "source": "ner", "metadata": {"in_sentence": "The appellants against whom the decree for ejectment is being executed are the widow and son of one Maliram Agarwala whose father Arjun Das had taken on lease the suit land from one Mohd."}}, {"text": "November 28, 1950", "label": "DATE", "start_char": 3789, "end_char": 3806, "source": "ner", "metadata": {"in_sentence": "The decree was passed as far back as November 28, 1950 in a title suit filed .against the appellants and was later confirmed by the High Court."}}, {"text": "August 16, 1954", "label": "DATE", "start_char": 3928, "end_char": 3943, "source": "ner", "metadata": {"in_sentence": "The present execution began on August 16, 1954 and was pending in the court of the Subordinate Judge, L.A.D., Gauhati when the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (Assam Act 12 of 1955) came into force from June 26, 1955."}}, {"text": "Gauhati when the Assam Non-Agricultural Urban Areas Tenancy Act, 1955", "label": "STATUTE", "start_char": 4007, "end_char": 4076, "source": "regex", "metadata": {}}, {"text": "June 26, 1955", "label": "DATE", "start_char": 4121, "end_char": 4134, "source": "ner", "metadata": {"in_sentence": "The present execution began on August 16, 1954 and was pending in the court of the Subordinate Judge, L.A.D., Gauhati when the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (Assam Act 12 of 1955) came into force from June 26, 1955."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 4185, "end_char": 4189, "source": "regex", "metadata": {"linked_statute_text": "Gauhati when the Assam Non-Agricultural Urban Areas Tenancy Act, 1955", "statute": "Gauhati when the Assam Non-Agricultural Urban Areas Tenancy Act, 1955"}}, {"text": "November 12, 1957", "label": "DATE", "start_char": 4323, "end_char": 4340, "source": "ner", "metadata": {"in_sentence": "The execution Court heard arguments and on November 12, 1957 held that the protection of s. 5 was available not only in pending suits and appeals but also in pending execution cases."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 4369, "end_char": 4373, "source": "regex", "metadata": {"linked_statute_text": "Gauhati when the Assam Non-Agricultural Urban Areas Tenancy Act, 1955", "statute": "Gauhati when the Assam Non-Agricultural Urban Areas Tenancy Act, 1955"}}, {"text": "Assam High Court", "label": "COURT", "start_char": 4537, "end_char": 4553, "source": "ner", "metadata": {"in_sentence": "In reaching this conclusion the learned Judge followed a decision of the Assam High Court reported in Harsukh Saraqgi & Anr."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 4629, "end_char": 4648, "source": "ner", "metadata": {"in_sentence": "v. Mashu/a/ Khemani & Anr(l) and of the Calcutta High Court in Habiba Bibi and others v. Ram Ranjan Mullick and others(2) He accordingly fixed the case for evidence to find out if there existed facts necessary for the application of s. 5 of the Act."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 4822, "end_char": 4826, "source": "regex", "metadata": {"linked_statute_text": "Gauhati when the Assam Non-Agricultural Urban Areas Tenancy Act, 1955", "statute": "Gauhati when the Assam Non-Agricultural Urban Areas Tenancy Act, 1955"}}, {"text": "June 6, 1959", "label": "DATE", "start_char": 4915, "end_char": 4927, "source": "ner", "metadata": {"in_sentence": "Subsequently, the Presiding Judge having changed, the point was reopened on June 6, 1959 by the successor Judge."}}, {"text": "s. 5(1)(a)", "label": "PROVISION", "start_char": 5105, "end_char": 5115, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(l)(a)", "label": "PROVISION", "start_char": 5277, "end_char": 5287, "source": "regex", "metadata": {"statute": null}}, {"text": "Assam", "label": "GPE", "start_char": 5593, "end_char": 5598, "source": "ner", "metadata": {"in_sentence": "land in urban areas of the State of Assam.\""}}, {"text": "Section 5", "label": "PROVISION", "start_char": 5633, "end_char": 5642, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 7539, "end_char": 7548, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 7639, "end_char": 7648, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 7957, "end_char": 7961, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 7, 8 and 9", "label": "PROVISION", "start_char": 7963, "end_char": 7982, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 8061, "end_char": 8071, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 11", "label": "PROVISION", "start_char": 8115, "end_char": 8125, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 8425, "end_char": 8435, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 13", "label": "PROVISION", "start_char": 8480, "end_char": 8485, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 14", "label": "PROVISION", "start_char": 8521, "end_char": 8526, "source": "regex", "metadata": {"statute": null}}, {"text": "Sylhet Non-Agricultural Urban Areas Tenany Act, 1917", "label": "STATUTE", "start_char": 8532, "end_char": 8584, "source": "regex", "metadata": {}}, {"text": "s. 5(l)(a)", "label": "PROVISION", "start_char": 8669, "end_char": 8679, "source": "regex", "metadata": {"linked_statute_text": "the Sylhet Non-Agricultural Urban Areas Tenany Act, 1917", "statute": "the Sylhet Non-Agricultural Urban Areas Tenany Act, 1917"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 9219, "end_char": 9223, "source": "regex", "metadata": {"linked_statute_text": "the Sylhet Non-Agricultural Urban Areas Tenany Act, 1917", "statute": "the Sylhet Non-Agricultural Urban Areas Tenany Act, 1917"}}, {"text": "Madras", "label": "GPE", "start_char": 9729, "end_char": 9735, "source": "ner", "metadata": {"in_sentence": "We would, therefore, put aside the Rent Control Acts of Madras, Bihar, Delhi and other States, because in these States the problem of accommodation in relation to the availability of lands and houses and the prior legislative history and experience, cannot be same as in Assam."}}, {"text": "Bihar", "label": "GPE", "start_char": 9737, "end_char": 9742, "source": "ner", "metadata": {"in_sentence": "We would, therefore, put aside the Rent Control Acts of Madras, Bihar, Delhi and other States, because in these States the problem of accommodation in relation to the availability of lands and houses and the prior legislative history and experience, cannot be same as in Assam."}}, {"text": "Delhi", "label": "GPE", "start_char": 9744, "end_char": 9749, "source": "ner", "metadata": {"in_sentence": "We would, therefore, put aside the Rent Control Acts of Madras, Bihar, Delhi and other States, because in these States the problem of accommodation in relation to the availability of lands and houses and the prior legislative history and experience, cannot be same as in Assam."}}, {"text": "Rent Control Act", "label": "STATUTE", "start_char": 9984, "end_char": 10000, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 10196, "end_char": 10200, "source": "regex", "metadata": {"linked_statute_text": "Rent Control Act", "statute": "Rent Control Act"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 12665, "end_char": 12669, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 12792, "end_char": 12796, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 13099, "end_char": 13103, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13248, "end_char": 13252, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13407, "end_char": 13411, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 14652, "end_char": 14662, "source": "regex", "metadata": {"statute": null}}, {"text": "Sylhet Non-Agricultural Urban Areas Tenancy Act, 1947", "label": "STATUTE", "start_char": 14670, "end_char": 14723, "source": "regex", "metadata": {}}, {"text": "s. 6(1)", "label": "PROVISION", "start_char": 15167, "end_char": 15174, "source": "regex", "metadata": {"linked_statute_text": "the Sylhet Non-Agricultural Urban Areas Tenancy Act, 1947", "statute": "the Sylhet Non-Agricultural Urban Areas Tenancy Act, 1947"}}, {"text": "Assam Urban Areas Rent Control Act 1949", "label": "STATUTE", "start_char": 15182, "end_char": 15221, "source": "regex", "metadata": {}}, {"text": "s. 6(1)", "label": "PROVISION", "start_char": 15249, "end_char": 15256, "source": "regex", "metadata": {"linked_statute_text": "the Assam Urban Areas Rent Control Act 1949", "statute": "the Assam Urban Areas Rent Control Act 1949"}}, {"text": "Assam Urban Areas Rent Control Act, 1946", "label": "STATUTE", "start_char": 15264, "end_char": 15304, "source": "regex", "metadata": {}}, {"text": "Section 6", "label": "PROVISION", "start_char": 15440, "end_char": 15449, "source": "regex", "metadata": {"linked_statute_text": "the Assam Urban Areas Rent Control Act, 1946", "statute": "the Assam Urban Areas Rent Control Act, 1946"}}, {"text": "section\n\n108", "label": "PROVISION", "start_char": 16026, "end_char": 16038, "source": "regex", "metadata": {"linked_statute_text": "the Assam Urban Areas Rent Control Act, 1946", "statute": "the Assam Urban Areas Rent Control Act, 1946"}}, {"text": "Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 16046, "end_char": 16076, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1966_3_933_947_EN", "year": 1966, "text": "; H\n\nSTATE OF WEST BENGAL\n\nMOTILAL KANORIA\n\nMarch 15, 1966\n\n[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH AND S. M. S!KRI, JJ.j.\n\nImports and Exports (Control) Act 18 of 1947, s. 5-lmport (Control) Order No. 17 of 1955, cl. (5)-Goods imported under licence sold without permission from Controller-Such sale lVhether an offence.\n\nCode of Criminal Procedure, 1898, s. 531-Error, ommission of irregu larities in complaint-Application of s, ectlon.\n\nThe respondent was the director of a company and also a partner in the firm managing it.\n\nOn behalf of the company he made an application for an import licence under the Imports and Exports (Control) Act 1947, and in May 1955 the licence was granti:d.\n\nAt that time the grant of licence was governed by an Order issued in 1948 issued under s. 32 of the Act, and under that Order the Controller of lmoorts and Exoorts could attach conditions to licences issued by him. According to the terms of the licence granted to the aforesaid company the good. imported under the licence were to be employed for the company's own use.\n\nIn December 1955 the Imports (Control) Order No. 17 of 1955 was passed.,\n\nUnder cl. S (3} of the Order certain conditions \\vere deemed to be. part of every licence and under cl. 5 ( 4) every licencee was enjoined to. observe the condition of the licence. In 1956 the respondent secured a revalidation of the licence issued to the company.\n\nThereafter when the goods arrived they were sold by the respondent to another party.\n\nA complaint was filed against the respondent and the company for an offence under s. 5 of the Imports and Exports (Control) Act 1947 read with cl.\n\n(5) of the Imports (Control) Order 1955.\n\nThe respondent faced the trial as an accused and participated in the proceedings without any objec .. tion. He was convicted by the trial Magistrate but the High Court acquitted him on the ground that at the time when the transaction of sale was entered into i.e. in December 1956, breach of a condition of licence did not constitute an offence under s. 5 of the. Act of 1947.\n\nThe State appealed to tlhis Court. The questions that fell for determination were :\n\n(i) whether by disposing of the imported goods without permission any offence was committed; and (ii) if so whether the respondent was personally liable.\n\nHELD :\n\n(i) Although s. 5 of the Imports and Exports (Control) Act, 1947 did not, before its amendment in 1960, specially provide that breach of a condition of licence would be deemed to be a breach of the Imports (Control) Order, yet by virtue of els. 5(3) and (4) read with cl. 12 of the Imports (Control) Order 1955 the transfer of a licence was a breach of the said order and constituted an offence. No distinction could validly be made in the circumstances of this case between transfer of a licence and transfer of goods imported under it. [945 E-G; 946 B-CJ\n\nC.T.S. Pillai v. H. P. Loh/a & Anr. A.I.R. 1957 Cal. 83, referred to.\n\nEast India Conimercial Co. Ltd. Calcutta v. Collector of Customs, Cal .. cutta, [1963] 3 S.C.R. 338, distinguished. 933\n\nSVPREME COURT REPORTS\n\n[ 1966] 3 S.C.R.\n\nStare v. Abdul Aziz (1964] 1 S.C.R. 830, applied.\n\n(1i) 1ne fact that the licence was obtained by the re.1pondent while ... the l 9-l8 Order \\\\'as in operation did not help the respondent as un<lcr\n\ncl. 12 of the 1955 Order ;1ny licence i-; sued under any of the earlier ....\n\nOrders \\\\a'i deen1cd to have been issued under the corresponding provisions of the 1955 Order. 1110 goods under the licence v.erc, moreover, imported and sold after 1955. '!he licence itself \"\"' revalidated in !956 and that could only have been done by power derived under cl. 7 of the B 1955 Order. (945 B, DJ\n\n(iii) The respondent was responsible for the issuance of the licence and for the transfer of the goods imported under ic.\n\nHe v..as therefore rcspon<ible principally along with the company. The complaint no doubt was not clear as lo whom was really meaot to be proseeulcd blll it de.1cribed lhe respondent as an accused 10 which he did 001 objecl at his trial.\n\nThe error. omission or irregularity, if any, in the con1plaint was cur;..1hJe C under s. ~37 of tho Code uf Criminal Procedure and in the present Cale could nol be said 10 have led to a foilure of justice. (946 E-111\n\nCRrnlNAL APPELLATF JCRtSOICTIO:->: Criminal Appeal No. 108 of 1964.\n\nAppeal from the jud;?ment and order dated September 4, 1963 of the Calcutta High Court in Criminal Revision No. 396 of 1962.\n\nDebratr1 .\\fookerjee, B. L.\n\nMehta, R.\n\nDhehar and B. R. G. K. Aclwr, for the appellant.\n\nD .. !\\'. Mukherjee, for the respondent.\n\nThe Judgment of lhc Court was delivered by\n\nHidayatullah, J. This is an appeal by certificate under Art. 134 (I) (c) of the Constitulion, against the judgment of the High Court of Calcutta dated September 4, 1963 by which the conviction of the respondent Motilal Kanoria under s. 5 of the Imports and Exports (Control) Acl, 1947 and the senlcnce of fine of Rs. 200/- (in default simple imprisonment for one monlh) imposed by the\n\nPresidency Magistrate, 6th Court, Calculta, were set aside and an acquittal was enlcred. The facts of the case are not in conlroversy and may therefore be slalcd briefly.\n\nMo1ilal Kanoria was a director of Lachminarayan Jule Manufacluring Co. Ltd., Calcutta.\n\nThe Company was managed by a firm of the name of Mukhram Lachminarayan and Molilal Kanoria was one of the partners of the firm.\n\nThe Company and the Managing Agents had a common address in Calcutta.\n\nMotilal Kanoria used to sign on behalf of the Managing Agents :ind also generally to deal with the affairs of the Company. All transaclions in this case were by Motilal Kanoria and he had signed the documents to which reference will be made presenlly.\n\nIn February 1955 the Governmcnl of India approved of the proposal of the Company to manufacture hackle and combing pins and sanctioned the import of plant and machinery for the\n\n• >\n\nSTATE v. KANORIA (Hidayatullah, J.) 935\n\npurpose. The Company was permitted to apply to the Chief Controller of Imports, New Delhi for a licence. The letter of Government is Ex. 2 dated February 4, 1955. On February II. 1955 the Company applied to the Chief Controller of Imports, New Delhi, on the proper application form, for an import licence.\n\nIn that application the Company stated that the machinery was to be installed or used at their Mills at Konnaggar, Eastern Railway (Ex. I). On May 26, 1955 a licence was issued (Ex. 3). The licence read as follows:-\n\n\"This licence is issued subject to the conditions to the goods licensed as detailed in the Policy Book for the current licensing period and any public notices that may be issued in this behalf from time to time.\n\nLICENCE NO. 035925\n\nCounterfoil\n\nNot available for foreign exchange unless authorised D by Reserve Bank of India.\n\nIMPORT TRADE CONTROL\n\n(Valid for all India Ports)\n\n(Not transferable except under a letter of authority from the authority who issued the licences or from any Import Trade Controller).\n\nMessrs. Shree Luchminarain Jute Manufacturing Co.\n\nLtd., of 59, Netaji Subhas Road, Calcutta-I. are hereby authorised to Import the goods of which particulars are given below:-\n\n!. Country from which consigned: West Germany.\n\n2. Quantity & Description of goods:\n\n3. Approximate value C.I.F.\n\n4. Period of shipment:\n\n5. Name & Address of Manufacturer Shipper or Suppliers:\n\nMachinery as per list attached for the manufacture of Hackling & Combing pins.\n\nRs. 1,88,000/- (Rupees\n\nOne Lakh and Eighty eight thousand only)\n\nRevalidated upto 31st May 1957.\n\nM/s. Schunacher Metal Works Aktiengeschellacheft, Aachen, Germany.\n\n936 SUPREME COUllT REPORTS\n\n6. Limiting factor for purpoe of clearing through Customs: Value\n\n7. Name of actual user in India\n\n[I 966] 3 S.C.R.\n\nSelf.\n\nThis licence is granted under Government of India, late Commerce Department Notification No. 23. ITC/43 dated the I st July 1943 as continued in force by the Imports and Exports (Control) Act 1947 18 of 1947) and subject to the rules and orders issued thereunder. This licence is also without prejudice to the applications of any other prohibitions or regulations affecting the importation of the goods \"hich may be in force at the time of their arrival.\n\nSd.\n\nIllegible Section Officer\n\n26-5-55\n\nfor Chief Controller of Imports and Exports.\n\nD 26-5-1955.\n\nIssued from file No. L. IV/49 (11) CG/55. (Space for Endorsements by Import Trade Control Authorities)\n\nThis licence is issued with an initial validity period of one year from the date of issue.\n\nIt will be revalidated at or before the end of the said period of one year, for a further period of two years, provided satisfactory evidence is produced that the order for the goods has been accepted by the foreign suppliers and a firm contract is made within the initial period of one year. In no case, however, will the validity period extend beyond three years from the date of issue.'' In the covering letter, which was sent when forwarding the licence, the Chief Controller said inter a/ia,- ..\n\n(3. The licence is granted to you subject to the following conditions:-\n\n(a) In case the project involves any capital issue and if such capital issue is not sanctioned the licence is liable to cancellation.\n\n(b) That if any sanction to the project is necessary under the laws of the Central, Provin-\n\n• •\n\n.. '\n\n' ,.\n\nSTATE v. KANORIA (Hida, vatullah, I.) 937\n\ncial or a State Government the same should be obtained and the position reported to this office by the licensee; in the absence of such sanction being received the licence is liable to cancellation.\n\n4. The licence is liable to cancellation if particulars as to progress of time in accordance with the detailed instructions contained in the accompanying slip are not furnished.\n\n5. The Government do not guarantee for supply of raw materials required for manufacture of the goods.\n\nOn June 19, 1956 the Company asked for \"revalidation\" of the licence and the licence was extended to May 31, 1957. This extension is mentioned in the licence above reproduced at No. 4.\n\nOn December 13, 1956 the Company entered into an agreement D (Ex. 25) with Shalimar Wood Products (P) Ltd. of Calcutta for the sale of the machinery imported by the Company. The sale, it is submitted, was at invoice price and there was no profit. On the arrival of the machinery in February of the following year the Company authorised Shalimar Wood Products to receive the shippin& documents from the Company's bankers and to clear it from the Docks. The plant and machinery were then cleared by the E Agents of the Shalimar Wood Products and the latter took them with a view to installing them in their own factory.\n\nOn July 30, 1958 the Company wrote a letter (Ex. 7) to the Chief Controller of Imports informing him that owing to the death of their director of Sawal Ram Kanoria who was interested in the production of the said pins the Company was compelled to F sell the imported plant and machinery to Shalimar Wood Products. (P) Ltd., Calcutta and asked for the approval of the transaction.\n\nThe Chief Controller of Imports in reply pointed out that permission ought to have been obtained before the transfer and that the Company had apparently committed a contravention of the import licence. A report was made to the police for investigation G and later a complaint under s. 5 of the Import and Exports (Control) Act, 1947 was filed in the Court of the Chief Presidency Magistrate, Calcutta, by the Deputy Chief Controller of Imports and Exports.\n\nLachminarain Jute Manufacturing Company was named as the accused \"represented by Shri Motilal Kanoria\". In paragraph 2 of the complaint the Company was stated to be the accused but in later paragraphs of the complaint Motilal Kanoria was named H as the accused. In the prayer it was requested that the court should summon \"accused Motilal Kanoria representing the Company and the Managing Agents\" to answer the charge of a breach of the lJSupCI/66-14\n\nSUPJ.BMB COURT REPORTS\n\n[ 1966] 3 S.C.R.\n\nconditions of the licence which constituted an offence under s. 5 of the Imports and Exports (Control) Act, 1947 read with clause\n\n(5) of the Imports (Control) Order No. 17 of 1955, dated December 17, 1955.\n\nMotilal Kanoria appeared at the trial, was questioned as an accused, pleaded not guilty and stood the trial. He does not appear to have objected to being arraigned as an accused person -a point he took later in the High Court and has taken before us.\n\nThe prosecution examined a large number of witnesses and filed documents to prove the above facts none of which is now denied.\n\nThe Presidency Magistrate, 6th Court, Calcutta, convicted Kanoria under s. 5 of the Imports and Exports (Control) Act, 1947 for contravention of clause (5) of the Imports (Control) Order, 1955 and sentenced him to a fine of Rs. 200/· or simple imprisonment for one month. On revision the High Court acquitted him but certified the case as fit for appeal to this Court and the present appeal ii the result.\n\nAs the prosecution is in respect of an offence under s. 5 of the Imports and Exports (Control) Act, 1947, we shall begin by examining what the ingredients of that offence are. Under the scheme of that Act there is a power to prohibit or restrict imports and by s. 3 the Central Government is enabled to make provision, by order pnblished in the Official Gazette, for prohibiting, restricting or otherwise controlling them. Section 5 prescribes penalty for contravention of an order. The section, as amended by Act 4\n\n1960, is set down here\n\n\"5. If any person contravenes or attempts to con travene, or abets a contravention of, any order made or deemed to have been made under this Act or any condition of a licence granted under any such order, he shall, without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Sea Customs Act, 1878, as applied by sub-section (2) of Section 3, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both\".\n\n(The words underlined were introduced in 1960).\n\nThe complaint in this case was filed after this amendment. Diffe rent orders at different times were passed by the Central Government under s. 3 and a word may be said about the orders of 1943 and 1948, although on the date of the transfer of machinery (December 13, 1956) only the order of 1955 was in force.\n\nThe first order was made under sub-rule (3) of rule 84 of the Defence of India Rules in force in 1943 (Notification No. 23 I.T.C./ 43 dated !st July, 1943). That order was general and there was no provision authorising the imposition of conditiom in the liamcc, the breach of which would be deemed to be a breach of the order.\n\nSTATE v. KANORIA (Hidayatullah, !.) 939\n\n' A In 1948 another order was issued under s. 3 (Notification NO:-2 -\"' I.T.C. dated 6th March, 1948). It provided for imposition of conditions but the provisions of the order did not indicate that\n\n• .,. any particular condition would be deemed to be included in a licence if not expressly included. The provisions of that order may be read here: B\n\n\"In exercise of the powers conferred by sub-section (1) and sub-section (3) of section 3 of the Imports and Exports (Control) Act, 1947 (18 of 1947), the Central Government is pleased to make the following order namely:-\n\n(a) Any officer issuing a licence under clauses\n\n(viii) to (xiv) of the notification of the Government of India in the late Department of Commerce No. 23 I.T.C./43, dated the 1st July, 1943, may issue the same subject to one or more of the conditions below:\n\n(i) that the goods covered by the licence shall not be disposed of or otherwise dealt with without the written permission of the licensing authority or any person duly authorised by it;\n\n(ii) that the goods covered by the licence on importation shall not be sold or distributed at a price more than that which may be specified in any directions attached to the licence;\n\n(iii) that the applicant for a licence shall execute a bond for complying with the terms subject to which a licence may be granted;\n\n(iv) that the licence shall not be transferable except in accordance with the permission of the licensing authority or a person duly authorised by it;\n\n(v) that such other conditions may be imposed which the licensing authority considers to be expedient from the administrative point of view and which are not inconsistent with the provisions of the said Act.\n\n(b) Where a licensee is found to have coatravened the order or the terms and conditions embodied in or accompanying a licence, the\n\nSUPREME COURT lliPOllTS\n\n\nappropriate licensing authority or the Chief Controller of Imports may notify him that, without prejudice to any penalty to which he may be liable under the Imports and Exporti (Control) Act, 1947 (18 of 1947), or any other enactment for the time being in force he shall either permanently or for a specified period be refused any further licence for Import of goods.\"\n\nBy this order the licensing authority was given the power to include conditions in a licence.\n\nOn December 7, 1955 an order was issued (Notification No. 17/55 dated December 7, 1955). It consolidated all the rul~ in one place and by clauie 12 read with Schedule IV repealed the earlier two orders and aome others but while effecting this re pea,\n\nit added a saving clause- -\n\n\"Provided that anything done or any action taken, including any appointment made or licence issued under any of the aforesaid Orders, shall be deemed to have been done or taken under the corresponding provision of this Order.\"\n\nThe order of 1955 also included several new provisions regarding conditions which may be introduced in licences and others which would be deemed to be so introduced. Conditions relevant here\n\nmay be noticed.\n\n\"5. Conditions of Licence. (I) The licensing authority issuing a licence under this Order may issue the same subject to one or more of the conditions stated below:-\n\n(i) that the goods covered by the licence shall not be disposed of, or otherwise dealt with, without the written permission of the licensing authority or any person duly authorised by it;\n\n(ii) that the goods covered by the licence on importation shall not be sold or distributed at a price exceeding that which may be specified in any directions attached to the licence;\n\n(iii) that the applicant for a licence shall execute a bond for complying with the terms subject to which a licence may be &ranted. (2)\n\nA . '\n\nSTATE v. KANORIA (Hidayatullah, I.) 941\n\n(3) It shall be deemed to be a condition of every such licence, that:\n\n(i) no person shall transfer and no person shall acquire by transfer any licence issued by the licensing authority except under and in accordance with the written permission of the authority which granted the licence or of any other person empowered in this behalf by such authority.\n\n(ii) that the goods for the import of which a licence is granted shall be the property of the licensee at the time of import and thereafter upto the time of clearance through Customs. ·\n\n(iii) the goods for the import of which a licence is granted shall be new goods unless otherwise stated in the licence.\n\n( 4) The licensee shall comply with all conditions imposed or deemed to be imposed under this clause.\"\n\nConditions 5 (I) (i), (ii) and (iii) and 5 (3) (i) are the same as conditions (a) (i) to (iv) of the 1948 Order but 5 (3) (ii) and (iii) and 5 (4) are new. Conditions 5 (3) (i), (ii) and (iii) become a part of every licence and further the licensee has to comply with all the conditions imposed or deemed to be imposed under clause 5. The effect of these clauses has to be considered in relation to the licence granted in this case but in this context the provisions of clause 7 are also relevant and the clause may be set down here:\n\n\"7. Amendment of Licence.--\n\nThe licensing authority may, of its own motion or on application by the licensee, amend any licence granted under this Order in such manner as may be necessary to make such licence conform to the provision of the Act or this Order or any other law for the time being in force or to rectify any errors or omissions in the licence; Provided that the licensing authority may, on request by the licensee, amend the licence in any manner consistent with the Import Trade Control Regulations.\" ·\n\n942 SuPUME OOUJ.T UPOlTS\n\n(196•) 3 S.C.R.\n\nMuch of the argument in tits case is based on the dates of these notifications and of the amendment of the section 5 of the Act, considered in relation to the dates on which the several facts in this case took place. The Presidency Magistrate applied the Order of 1955 because the licence was \"revalidated\" on June 27, 1956, and according to him, this was apparently done under powers derived from clause 7 of that Order. According to the Presidency Magistrate the Company had imported the plant and machinery for its own use (vide No. 7 of the licence) and this was an express condition of the licence.\n\nHe also pointed out that the licence was expressly made subject to such restrictions as might be imposed from time to time and the Order of 1955 imposed conditions which made the transfer of machinery an offence being a breach of subclause (3) clause (5) of the 1955 Order. The High Court held that s. 5 of the Act as it stood on December 13, 1956 when the alleged offence was committed, did not make breach of a condition of a licence an offence and, therefore, there was no offence.\n\nThe Division Bench relied principally on the observations of Sen and Mitter JJ. in C. T. S. Pillai v. H. P. Lohia and Anr.(1) to the following effect :\n\n\"It is clear, therefore, that the section penalises only contravention of any order made or deemed to have been made under the Act. But the question is whether contravention of a condition imposed by a licence issued under the Act or issued under a statutory order made under the Act is also an offence under section 5, Imports and Exports (Control) Act, 1947. Although license is granted under a statutory order made under the Act and conditions may be imposed in the license under another statutory order made under the Act, it is difficult to hold that the license or the conditions in the license amount to an order made or deemed to be made under the Act.\n\nNotification No. 23. l.T.C./43 dated 1-7-1943 merely provides that no goods shall be imported except goods covered by sr.ecial license issued by an authorised officer.\n\nNotification No. 2-1.T.C./48 dated 6-3-1948 authorises a licensing officer to impose one or more conditions prescribed in that order and a licensing officer, therefore, may impose a condition in view of the provision of Notification No. 2-1.T.C./48. But if the licensee contravenes the condition imposed by the license it can hardly be said that he has contravened the order under this Act, that is, the Notification No. 2-1.T.C./48. The order No. 2-1.T.C./48 does not directly impose any duty but it gives power to the licensing officer to impose certrain conditions. But contravention of condition im-\n\n(1) A. I. R. 1957 Cal. 13.\n\n\\ H\n\n' F\n\n) H\n\nSTATE v. KANORIA (llidayatullah, J.) 943\n\nposed by the licensing officer cannot prima facie be regarded as contravention of the notified order itself. ...\n\nWhen there is a special license covering certain goods and there is a condition imposed in the special license it cannot be said that by breach of the condition imposed in the special license it cannot be said that by breach of the condition there has been any breach of Order 23- I.T.C./43 or ofthe subsequent Notification No. 2-I.T.C./\n\n48. It may be mentioned that the difficulty apparently was realised in Pakistan and therefore the Imports and Exports (Control) Act, 1947, was first amended by an ordinance and then by the Imports and Exports (Control) Act, 1950, of Pakistan. Section 3(2) of that Act provides that 'no goods of the specified description shall be imported or exported except in accordance with the conditions of a license to be issued by the Chief Controller or any other Officer authorised in this behalf by the Central Government. The penal section, section 5, refers not only to contravention of an order or Rule made under the Act but also to the contravention of any condition imposed by the License ....... .\n\nIt is clear that unless the penal section itself includes the contravention of a condition of the license as an offence, it is not possible to hold that the licensees by merely committing breach of a condition imposed by a license has committed the offence which consists in contravention of an order made or deemed to be made under this Act. In this view, therefore, although the reasons given by the learned Magistrate have not been considered by us as sound, it is clear that the prosecution of the opposite party under s. 5 of Imports and Exports (Control) Act, 1947, must fail\".\n\nThese observations were referred to by the majority decision of this Court in East India Commercial Co. Ltd., Calcutta\n\nv. Collector of Customs, Calcutta (1) in the following words :-\n\n\" ........ The Criminal Revision (No. 1124 of 1953) came up before a division Bench of the Calcutta High Court, consisting of Mitter and Sen. JJ., and the learned Judges, by their judgment dated March 3, 1955, dismissed the revision holding that there had been no contravention of the order made or deemed to be made under the Act. The learned Judges construed s. 5 of the Act and held that the said section penalised only a contravention of an order made or deemed to have been made under the said Act, but did not penalise\n\n(!) [196'1 3 S.C.R. 338 at 356, 369, 372.\n\n944 SUPkBME COUllT RBPORTS\n\n\nthe contravention of the conditions of licence issued under the Act or issued under a statutory order made under that Act, and dismissed the revision.\n\nIt will be seen from this order that it does not pro- B vide for a condition in the licence that subsequent to the import the goods should not be sold. Condition (v) of cl. (a) only empowers the licensing authority to impose a condition from an administrative point of view. It cannot be suggested that the condition, with which we are now concerned, is a condition imc posed from an administnrtivc point of view, but it is a condition which affects the rights of parties.\n\nIt follows from the above that the infringement D of a condition in the licence not to sell the goods imported to third parti~. is not an infringement of the order ............... .\n\nThe Division Bench considered that the earlier Calcutta case was approved.\n\nFollowing the above observations the learned Judges applied them to this case. They noted that the breach of a condition became an offence only after the 17th of March,\n\n1960 when Act 4 of 1960 was passed and as it could not be an offence before, even if the Order of 1955 deemed certain conditions to be a part of the licence, their breach was not an offence.\n\nThey distinguished the decision of the Bombay High Court in State v. Abdul Aziz( ) on the ground that the licence in that case was granted on January 2, 1956, that is to say, after the coming into force of the Order of 1955. The Division Bench therefore held that no offence was committed.\n\nAdverting also to the fact that there was confusion as to which of the two-the Company or Motilal Kanoria-was the accused the learned Judges held that the Presidency Magistrate was further wrong in convicting Kanoria although the prosecution was really against the Company.\n\nThe questions that arise in this case are really two and they arc :\n\n(a) whether by disposing of the plant and machinery without permission an offence was H committed; and\n\n(I) A.I.II.. 1962 l!om. 24.\n\nSTATE v. KANORIA (Hida, vatullah, J.) 945\n\n(b) if so, by whom ?\n\n In our judgment both these questions must be answered in favour of the State of West Bengal. It was overlooked in the High Court that under the proviso to clause 12 of the Order of 1955 the licence, although granted before that Order was brought into force, came under its terms. The words of that proviso refer to a _'licence issued' under any of the earlier orders as somethiag dime or action taken under the corresponding provision of the 1955 Order. The corresponding conditions were those we have extracted from the Order of 1955 and set down earlier. By the terms of the licence (item No. 7) the licensee undertook to use the goods himself.\n\nHe further bound himself by \"any other prohibitions or regulations affecting the importation of the goods/ which may be in force at the time of their arrival\" and not to transfer the licence \"except under a letter of authority from the authority who issued the licence or from any Import Trade Controller\". The goods arrived long after the Order of 1955 came into force.\n\nBy the operation of the revalidation under clause 7 and the conditions of the licence, even as they were, the provisions of the Order of 1955 were attracted. As clauses 5(3) and ( 4) became a part of the licence, their breach was a breach of the Order and an offence was, therefore, committed.\n\nIt was decided in Abdul Aziz v. State of Maharashtra(') (on appeal from the case sub. nom. State v. Abdul Aziz of the Bombay High Court) that if the licence was issued under the Order of 1955,) &- the provisions of sub-cl. ( 4) of cl. 5 made it obligatory upon the licensee to comply with all the conditions imposed or deemed to be imposed under clause 5 and that the contravention of any condition of a licence amounted to the contravention of the provision of sub-cl. (4) of cl. 5 of the Order and consequently to the contravention of the order made under the Imports and Exports (Control) Act and therefore the licensee became liable to the penalty under s. 5 of the Act. The only distinction between Abdul Aziz's case and this lies in the fact that the licence in the former was given after, and in this case before, the coming into force of Order of 1955.\n\nBut this distinction loses significance when the provisions of clause 12 of the Order of 1955 are read in conjunc-' • lion with the licence itself. Between them they bring into operation clause 5 of the Order of 1955 and the result reached by this Court in Abdul Aziz's case obtains here also. The fact that the licence was revalidated presumably under clause 7 of the Order of 1955 further fortifies the above conclusion. The submission of Mr. D. N. Mukherji that this extension was under the last paragraph of the licence is not the whole of the matter. A power might have been reserved by that paragraph but it could only be\n\n(I) (1964] I S.C.R. 830,\n\nSUPREME COURT REPORTS\n\n(1966) 3 S.C.R.\n\nexercised by the licensing authority after December 7, 1955 by virtue of the Order of 1955 because all previous orders were repealed.\n\nThere was thus an offence under s. 5 of the Imports and Exports (Control) Act for the breach of clause 5 of the Order of 1955. / Mr. D. N. Mukherjee seeks to distinguish between the transference of the licence and that of the machinery. This argument is not acceptable to us. The licence created its own conditions that the goods would be used by the licensee and the transfer of goods in circumstances is tantamount to transfer of the licence. It would be refining matters too finely to distinguish between the transfer of the licence and the transfer of the goods. Even if a distinction can be drawn the licence was for the actual use of the licensee. When the goods were sold condition No. 7 was broken and so would be a breach of the 1955 Order which had come Into force.\n\nThe final question is whether Kanoria can be said to have committed any offence and whether he was prosecuted at all{ .' The section as amended in 1960 makes the abetment of contra- ' Yention an offence. If the amendment applied because the pro- D secution was after the amendment (a point we need not decide) Kanoria would be definitely guilty at least of abetment. Jn our opinion it is not necessary to decide this point because Kanoria is guilty as a principal offender and the section as it originally stood, must apply to him. The section said \"if any person contravenes any order made or deemed to have been made\". . . . . . . .\n\nE \"he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.\" The question is whether Kanoria was such a person.\n\nKanoria was responsible for the issuance of the licence and for the transfer of the goods I b covered by the licence.\n\nHe wrote every document connected with these two matters. He was, therefore, responsible princi- F pally along with the Company. In fact the Company could not have committed the offence of contravention if Kanoria had not acted as he did. Abctment, of which the section now speaks, is an act of a different kind. The act of Kanoria was not abetting any one else but one which by itself led to the contravention of the Order of 1955 and he was, therefore, liable principally.\n\nThe complaint no doubt was not clear as to who was really meant G to be prosecuted but it described Kanoria as an accused. Under the Explanation to s. 537 of the Code of Criminal Procedure no error omission or irregularity in the complaint should have led 11 to a 'reversal of the finding that Kanoria was guilty unless there was a failure of justice. The objection that he was not named as an accused throughout the complaint and that he was thus H not an accused could have been raised at the trial but it was not.\n\nOn the contrary Kanoria entered a plea of not guilty on his own behalf and also stood examination as an accused. It is obvious\n\nI '", "total_entities": 116, "entities": [{"text": "H\n\nSTATE OF WEST BENGAL", "label": "PETITIONER", "start_char": 2, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "STATE OF WEST BENGAL", "offset_not_found": false}}, {"text": "MOTILAL KANORIA", "label": "RESPONDENT", "start_char": 27, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "MOTILAL KANORIA", "offset_not_found": false}}, {"text": "March 15, 1966", "label": "DATE", "start_char": 44, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "; H\n\nSTATE OF WEST BENGAL\n\nMOTILAL KANORIA\n\nMarch 15, 1966\n\n[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH AND S. M. S!KRI, JJ.j."}}, {"text": "P. B. GAJENDRAGADKAR", "label": "JUDGE", "start_char": 61, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "P.B. GAJENDRAGADKAR*", "offset_not_found": false}}, {"text": "K. N. 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SHAH", "offset_not_found": false}}, {"text": "s. 5", "label": "PROVISION", "start_char": 203, "end_char": 207, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 356, "end_char": 388, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 531", "label": "PROVISION", "start_char": 390, "end_char": 396, "source": "regex", "metadata": {"linked_statute_text": "Code of Criminal Procedure, 1898", "statute": "Code of Criminal Procedure, 1898"}}, {"text": "s. 32", "label": "PROVISION", "start_char": 813, "end_char": 818, "source": "regex", "metadata": {"linked_statute_text": "Code of Criminal Procedure, 1898", "statute": "Code of Criminal Procedure, 1898"}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 1271, "end_char": 1276, "source": "regex", "metadata": {"linked_statute_text": "Code of Criminal Procedure, 1898", "statute": "Code of Criminal Procedure, 1898"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 1605, "end_char": 1609, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 2064, "end_char": 2068, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 2352, "end_char": 2356, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 2607, "end_char": 2613, "source": "regex", "metadata": {"statute": null}}, {"text": "[1963] 3 S.C.R. 338", "label": "CASE_CITATION", "start_char": 3048, "end_char": 3067, "source": "regex", "metadata": {}}, {"text": "(1964] 1 S.C.R. 830", "label": "CASE_CITATION", "start_char": 3150, "end_char": 3169, "source": "regex", "metadata": {}}, {"text": "cl. 12", "label": "PROVISION", "start_char": 3329, "end_char": 3335, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 3680, "end_char": 3685, "source": "regex", "metadata": {"statute": null}}, {"text": "CRrnlNAL APPELLATF JCRtSOICTIO:-", "label": "PETITIONER", "start_char": 4299, "end_char": 4331, "source": "ner", "metadata": {"in_sentence": "946 E-111\n\nCRrnlNAL APPELLATF JCRtSOICTIO:->: Criminal Appeal No."}}, {"text": "R.\n\nDhehar", "label": "LAWYER", "start_char": 4530, "end_char": 4540, "source": "ner", "metadata": {"in_sentence": "Debratr1 .\\fookerjee, B. L.\n\nMehta, R.\n\nDhehar and B. R. G. K. Aclwr, for the appellant."}}, {"text": "B. R. G. K. Aclwr", "label": "LAWYER", "start_char": 4545, "end_char": 4562, "source": "ner", "metadata": {"in_sentence": "Debratr1 .\\fookerjee, B. L.\n\nMehta, R.\n\nDhehar and B. R. G. K. Aclwr, for the appellant."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 4670, "end_char": 4682, "source": "ner", "metadata": {"in_sentence": "The Judgment of lhc Court was delivered by\n\nHidayatullah, J. This is an appeal by certificate under Art."}}, {"text": "Art. 134", "label": "PROVISION", "start_char": 4726, "end_char": 4734, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 4792, "end_char": 4814, "source": "ner", "metadata": {"in_sentence": "134 (I) (c) of the Constitulion, against the judgment of the High Court of Calcutta dated September 4, 1963 by which the conviction of the respondent Motilal Kanoria under s. 5 of the Imports and Exports (Control) Acl, 1947 and the senlcnce of fine of Rs."}}, {"text": "Motilal Kanoria", "label": "RESPONDENT", "start_char": 4881, "end_char": 4896, "source": "ner", "metadata": {"in_sentence": "134 (I) (c) of the Constitulion, against the judgment of the High Court of Calcutta dated September 4, 1963 by which the conviction of the respondent Motilal Kanoria under s. 5 of the Imports and Exports (Control) Acl, 1947 and the senlcnce of fine of Rs.", "canonical_name": "MOTILAL KANORIA"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 4903, "end_char": 4907, "source": "regex", "metadata": {"statute": null}}, {"text": "Mo1ilal Kanoria", "label": "PETITIONER", "start_char": 5228, "end_char": 5243, "source": "ner", "metadata": {"in_sentence": "Mo1ilal Kanoria was a director of Lachminarayan Jule Manufacluring Co. 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Ltd., Calcutta."}}, {"text": "Mukhram Lachminarayan", "label": "OTHER_PERSON", "start_char": 5365, "end_char": 5386, "source": "ner", "metadata": {"in_sentence": "The Company was managed by a firm of the name of Mukhram Lachminarayan and Molilal Kanoria was one of the partners of the firm."}}, {"text": "Molilal Kanoria", "label": "RESPONDENT", "start_char": 5391, "end_char": 5406, "source": "ner", "metadata": {"in_sentence": "The Company was managed by a firm of the name of Mukhram Lachminarayan and Molilal Kanoria was one of the partners of the firm.", "canonical_name": "MOTILAL KANORIA"}}, {"text": "Motilal Kanoria", "label": "RESPONDENT", "start_char": 5516, "end_char": 5531, "source": "ner", "metadata": {"in_sentence": "Motilal Kanoria used to sign on behalf of the Managing Agents :ind also generally to deal with the affairs of the Company.", "canonical_name": "MOTILAL KANORIA"}}, {"text": "India", "label": "GPE", "start_char": 5804, "end_char": 5809, "source": "ner", "metadata": {"in_sentence": "In February 1955 the Governmcnl of India approved of the proposal of the Company to manufacture hackle and combing pins and sanctioned the import of plant and machinery for the\n\n• >\n\nSTATE v. KANORIA (Hidayatullah, J.) 935\n\npurpose."}}, {"text": "New Delhi", "label": "GPE", "start_char": 6073, "end_char": 6082, "source": "ner", "metadata": {"in_sentence": "The Company was permitted to apply to the Chief Controller of Imports, New Delhi for a licence."}}, {"text": "February 4, 1955", "label": "DATE", "start_char": 6138, "end_char": 6154, "source": "ner", "metadata": {"in_sentence": "2 dated February 4, 1955."}}, {"text": "February II. 1955", "label": "DATE", "start_char": 6159, "end_char": 6176, "source": "ner", "metadata": {"in_sentence": "On February II."}}, {"text": "Konnaggar", "label": "GPE", "start_char": 6404, "end_char": 6413, "source": "ner", "metadata": {"in_sentence": "In that application the Company stated that the machinery was to be installed or used at their Mills at Konnaggar, Eastern Railway (Ex."}}, {"text": "May 26, 1955", "label": "DATE", "start_char": 6443, "end_char": 6455, "source": "ner", "metadata": {"in_sentence": "On May 26, 1955 a licence was issued (Ex."}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 6821, "end_char": 6842, "source": "ner", "metadata": {"in_sentence": "035925\n\nCounterfoil\n\nNot available for foreign exchange unless authorised D by Reserve Bank of India."}}, {"text": "Shree Luchminarain Jute Manufacturing Co.\n\nLtd.", "label": "ORG", "start_char": 7039, "end_char": 7086, "source": "ner", "metadata": {"in_sentence": "Messrs. Shree Luchminarain Jute Manufacturing Co.\n\nLtd., of 59, Netaji Subhas Road, Calcutta-I. are hereby authorised to Import the goods of which particulars are given below:-\n\n!."}}, {"text": "Schunacher Metal Works Aktiengeschellacheft", "label": "ORG", "start_char": 7588, "end_char": 7631, "source": "ner", "metadata": {"in_sentence": "M/s. Schunacher Metal Works Aktiengeschellacheft, Aachen, Germany."}}, {"text": "Aachen", "label": "GPE", "start_char": 7633, "end_char": 7639, "source": "ner", "metadata": {"in_sentence": "M/s. Schunacher Metal Works Aktiengeschellacheft, Aachen, Germany."}}, {"text": "Germany", "label": "GPE", "start_char": 7641, "end_char": 7648, "source": "ner", "metadata": {"in_sentence": "M/s. Schunacher Metal Works Aktiengeschellacheft, Aachen, Germany."}}, {"text": "June 19, 1956", "label": "DATE", "start_char": 9904, "end_char": 9917, "source": "ner", "metadata": {"in_sentence": "On June 19, 1956 the Company asked for \"revalidation\" of the licence and the licence was extended to May 31, 1957."}}, {"text": "May 31, 1957", "label": "DATE", "start_char": 10002, "end_char": 10014, "source": "ner", "metadata": {"in_sentence": "On June 19, 1956 the Company asked for \"revalidation\" of the licence and the licence was extended to May 31, 1957."}}, {"text": "December 13, 1956", "label": "DATE", "start_char": 10090, "end_char": 10107, "source": "ner", "metadata": {"in_sentence": "On December 13, 1956 the Company entered into an agreement D (Ex."}}, {"text": "Shalimar Wood Products (P) Ltd. of", "label": "ORG", "start_char": 10162, "end_char": 10196, "source": "ner", "metadata": {"in_sentence": "25) with Shalimar Wood Products (P) Ltd. of Calcutta for the sale of the machinery imported by the Company."}}, {"text": "Shalimar Wood Products", "label": "ORG", "start_char": 10423, "end_char": 10445, "source": "ner", "metadata": {"in_sentence": "On the arrival of the machinery in February of the following year the Company authorised Shalimar Wood Products to receive the shippin& documents from the Company's bankers and to clear it from the Docks."}}, {"text": "July 30, 1958", "label": "DATE", "start_char": 10709, "end_char": 10722, "source": "ner", "metadata": {"in_sentence": "On July 30, 1958 the Company wrote a letter (Ex."}}, {"text": "Sawal Ram Kanoria", "label": "OTHER_PERSON", "start_char": 10852, "end_char": 10869, "source": "ner", "metadata": {"in_sentence": "7) to the Chief Controller of Imports informing him that owing to the death of their director of Sawal Ram Kanoria who was interested in the production of the said pins the Company was compelled to F sell the imported plant and machinery to Shalimar Wood Products. ("}}, {"text": "Shalimar Wood Products.", "label": "ORG", "start_char": 10996, "end_char": 11019, "source": "ner", "metadata": {"in_sentence": "7) to the Chief Controller of Imports informing him that owing to the death of their director of Sawal Ram Kanoria who was interested in the production of the said pins the Company was compelled to F sell the imported plant and machinery to Shalimar Wood Products. ("}}, {"text": "s. 5", "label": "PROVISION", "start_char": 11369, "end_char": 11373, "source": "regex", "metadata": {"statute": null}}, {"text": "Chief Presidency Magistrate, Calcutta", "label": "COURT", "start_char": 11450, "end_char": 11487, "source": "ner", "metadata": {"in_sentence": "A report was made to the police for investigation G and later a complaint under s. 5 of the Import and Exports (Control) Act, 1947 was filed in the Court of the Chief Presidency Magistrate, Calcutta, by the Deputy Chief Controller of Imports and Exports."}}, {"text": "Lachminarain Jute Manufacturing Company", "label": "ORG", "start_char": 11545, "end_char": 11584, "source": "ner", "metadata": {"in_sentence": "Lachminarain Jute Manufacturing Company was named as the accused \"represented by Shri Motilal Kanoria\"."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 12100, "end_char": 12104, "source": "regex", "metadata": {"statute": null}}, {"text": "December 17, 1955", "label": "DATE", "start_char": 12227, "end_char": 12244, "source": "ner", "metadata": {"in_sentence": "17 of 1955, dated December 17, 1955."}}, {"text": "Presidency Magistrate, 6th Court, Calcutta", "label": "COURT", "start_char": 12631, "end_char": 12673, "source": "ner", "metadata": {"in_sentence": "The Presidency Magistrate, 6th Court, Calcutta, convicted Kanoria under s. 5 of the Imports and Exports (Control) Act, 1947 for contravention of clause (5) of the Imports (Control) Order, 1955 and sentenced him to a fine of Rs."}}, {"text": "Kanoria", "label": "OTHER_PERSON", "start_char": 12685, "end_char": 12692, "source": "ner", "metadata": {"in_sentence": "The Presidency Magistrate, 6th Court, Calcutta, convicted Kanoria under s. 5 of the Imports and Exports (Control) Act, 1947 for contravention of clause (5) of the Imports (Control) Order, 1955 and sentenced him to a fine of Rs."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 12699, "end_char": 12703, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13087, "end_char": 13091, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 13295, "end_char": 13299, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 13304, "end_char": 13322, "source": "ner", "metadata": {"in_sentence": "Under the scheme of that Act there is a power to prohibit or restrict imports and by s. 3 the Central Government is enabled to make provision, by order pnblished in the Official Gazette, for prohibiting, restricting or otherwise controlling them."}}, {"text": "Section 5", "label": "PROVISION", "start_char": 13457, "end_char": 13466, "source": "regex", "metadata": {"statute": null}}, {"text": "Sea Customs Act, 1878", "label": "STATUTE", "start_char": 13893, "end_char": 13914, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 3", "label": "PROVISION", "start_char": 13949, "end_char": 13958, "source": "regex", "metadata": {"linked_statute_text": "the Sea Customs Act, 1878", "statute": "the Sea Customs Act, 1878"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14252, "end_char": 14256, "source": "regex", "metadata": {"linked_statute_text": "the Sea Customs Act, 1878", "statute": "the Sea Customs Act, 1878"}}, {"text": "st July, 1943", "label": "DATE", "start_char": 14564, "end_char": 14577, "source": "ner", "metadata": {"in_sentence": "st July, 1943)."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14835, "end_char": 14839, "source": "regex", "metadata": {"linked_statute_text": "the Sea Customs Act, 1878", "statute": "the Sea Customs Act, 1878"}}, {"text": "6th March, 1948", "label": "DATE", "start_char": 14877, "end_char": 14892, "source": "ner", "metadata": {"in_sentence": "939\n\n' A In 1948 another order was issued under s. 3 (Notification NO:-2 -\"' I.T.C. dated 6th March, 1948)."}}, {"text": "section 3", "label": "PROVISION", "start_char": 15222, "end_char": 15231, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India", "label": "ORG", "start_char": 15457, "end_char": 15476, "source": "ner", "metadata": {"in_sentence": "The provisions of that order may be read here: B\n\n\"In exercise of the powers conferred by sub-section (1) and sub-section (3) of section 3 of the Imports and Exports (Control) Act, 1947 (18 of 1947), the Central Government is pleased to make the following order namely:-\n\n(a) Any officer issuing a licence under clauses\n\n(viii) to (xiv) of the notification of the Government of India in the late Department of Commerce No."}}, {"text": "1st July, 1943", "label": "DATE", "start_char": 15540, "end_char": 15554, "source": "ner", "metadata": {"in_sentence": "23 I.T.C./43, dated the 1st July, 1943, may issue the same subject to one or more of the conditions below:\n\n(i) that the goods covered by the licence shall not be disposed of or otherwise dealt with without the written permission of the licensing authority or any person duly authorised by it;\n\n(ii) that the goods covered by the licence on importation shall not be sold or distributed at a price more than that which may be specified in any directions attached to the licence;\n\n(iii) that the applicant for a licence shall execute a bond for complying with the terms subject to which a licence may be granted;\n\n(iv) that the licence shall not be transferable except in accordance with the permission of the licensing authority or a person duly authorised by it;\n\n(v) that such other conditions may be imposed which the licensing authority considers to be expedient from the administrative point of view and which are not inconsistent with the provisions of the said Act."}}, {"text": "December 7, 1955", "label": "DATE", "start_char": 17115, "end_char": 17131, "source": "ner", "metadata": {"in_sentence": "On December 7, 1955 an order was issued (Notification No."}}, {"text": "Schedule IV", "label": "PROVISION", "start_char": 17270, "end_char": 17281, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 5", "label": "PROVISION", "start_char": 19647, "end_char": 19655, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 19792, "end_char": 19800, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 20527, "end_char": 20536, "source": "regex", "metadata": {"statute": null}}, {"text": "June 27, 1956", "label": "DATE", "start_char": 20730, "end_char": 20743, "source": "ner", "metadata": {"in_sentence": "The Presidency Magistrate applied the Order of 1955 because the licence was \"revalidated\" on June 27, 1956, and according to him, this was apparently done under powers derived from clause 7 of that Order."}}, {"text": "clause 7", "label": "PROVISION", "start_char": 20818, "end_char": 20826, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 21324, "end_char": 21328, "source": "regex", "metadata": {"statute": null}}, {"text": "Sen", "label": "JUDGE", "start_char": 21572, "end_char": 21575, "source": "ner", "metadata": {"in_sentence": "The Division Bench relied principally on the observations of Sen and Mitter JJ.", "canonical_name": "Sen."}}, {"text": "Mitter", "label": "JUDGE", "start_char": 21580, "end_char": 21586, "source": "ner", "metadata": {"in_sentence": "The Division Bench relied principally on the observations of Sen and Mitter JJ."}}, {"text": "section 5", "label": "PROVISION", "start_char": 21973, "end_char": 21982, "source": "regex", "metadata": {"statute": null}}, {"text": "1-7-1943", "label": "DATE", "start_char": 22363, "end_char": 22371, "source": "ner", "metadata": {"in_sentence": "l.T.C./43 dated 1-7-1943 merely provides that no goods shall be imported except goods covered by sr.ecial license issued by an authorised officer."}}, {"text": "6-3-1948", "label": "DATE", "start_char": 22530, "end_char": 22538, "source": "ner", "metadata": {"in_sentence": "2-1.T.C./48 dated 6-3-1948 authorises a licensing officer to impose one or more conditions prescribed in that order and a licensing officer, therefore, may impose a condition in view of the provision of Notification No."}}, {"text": "Pakistan", "label": "GPE", "start_char": 23709, "end_char": 23717, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that the difficulty apparently was realised in Pakistan and therefore the Imports and Exports (Control) Act, 1947, was first amended by an ordinance and then by the Imports and Exports (Control) Act, 1950, of Pakistan."}}, {"text": "Section 3(2)", "label": "PROVISION", "start_char": 23881, "end_char": 23893, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 24173, "end_char": 24182, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 24860, "end_char": 24864, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 25198, "end_char": 25217, "source": "ner", "metadata": {"in_sentence": "1124 of 1953) came up before a division Bench of the Calcutta High Court, consisting of Mitter and Sen. JJ.,"}}, {"text": "Sen.", "label": "JUDGE", "start_char": 25244, "end_char": 25248, "source": "ner", "metadata": {"in_sentence": "1124 of 1953) came up before a division Bench of the Calcutta High Court, consisting of Mitter and Sen. JJ.,", "canonical_name": "Sen."}}, {"text": "March 3, 1955", "label": "DATE", "start_char": 25302, "end_char": 25315, "source": "ner", "metadata": {"in_sentence": "and the learned Judges, by their judgment dated March 3, 1955, dismissed the revision holding that there had been no contravention of the order made or deemed to be made under the Act."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 25468, "end_char": 25472, "source": "regex", "metadata": {"statute": null}}, {"text": "17th of March,\n\n1960", "label": "DATE", "start_char": 26744, "end_char": 26764, "source": "ner", "metadata": {"in_sentence": "They noted that the breach of a condition became an offence only after the 17th of March,\n\n1960 when Act 4 of 1960 was passed and as it could not be an offence before, even if the Order of 1955 deemed certain conditions to be a part of the licence, their breach was not an offence."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 26991, "end_char": 27008, "source": "ner", "metadata": {"in_sentence": "They distinguished the decision of the Bombay High Court in State v. Abdul Aziz( ) on the ground that the licence in that case was granted on January 2, 1956, that is to say, after the coming into force of the Order of 1955."}}, {"text": "January 2, 1956", "label": "DATE", "start_char": 27094, "end_char": 27109, "source": "ner", "metadata": {"in_sentence": "They distinguished the decision of the Bombay High Court in State v. Abdul Aziz( ) on the ground that the licence in that case was granted on January 2, 1956, that is to say, after the coming into force of the Order of 1955."}}, {"text": "State of West Bengal", "label": "ORG", "start_char": 27857, "end_char": 27877, "source": "ner", "metadata": {"in_sentence": "In our judgment both these questions must be answered in favour of the State of West Bengal."}}, {"text": "clause 12", "label": "PROVISION", "start_char": 27941, "end_char": 27950, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 28849, "end_char": 28857, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 29332, "end_char": 29337, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 5", "label": "PROVISION", "start_char": 29447, "end_char": 29455, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 5", "label": "PROVISION", "start_char": 29578, "end_char": 29583, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 29759, "end_char": 29763, "source": "regex", "metadata": {"statute": null}}, {"text": "Abdul Aziz", "label": "OTHER_PERSON", "start_char": 29805, "end_char": 29815, "source": "ner", "metadata": {"in_sentence": "The only distinction between Abdul Aziz's case and this lies in the fact that the licence in the former was given after, and in this case before, the coming into force of Order of 1955."}}, {"text": "clause 12", "label": "PROVISION", "start_char": 30026, "end_char": 30035, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 5", "label": "PROVISION", "start_char": 30150, "end_char": 30158, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 30316, "end_char": 30324, "source": "regex", "metadata": {"statute": null}}, {"text": "D. N. Mukherji", "label": "OTHER_PERSON", "start_char": 30408, "end_char": 30422, "source": "ner", "metadata": {"in_sentence": "The submission of Mr. D. N. Mukherji that this extension was under the last paragraph of the licence is not the whole of the matter.", "canonical_name": "D. N. Mukherjee"}}, {"text": "SUPREME COURT REPORTS\n\n(1966) 3 S.C.R.", "label": "COURT", "start_char": 30618, "end_char": 30656, "source": "ner", "metadata": {"in_sentence": "A power might have been reserved by that paragraph but it could only be\n\n(I) (1964] I S.C.R. 830,\n\nSUPREME COURT REPORTS\n\n(1966) 3 S.C.R.\n\nexercised by the licensing authority after December 7, 1955 by virtue of the Order of 1955 because all previous orders were repealed."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 30825, "end_char": 30829, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 5", "label": "PROVISION", "start_char": 30889, "end_char": 30897, "source": "regex", "metadata": {"statute": null}}, {"text": "D. N. Mukherjee", "label": "OTHER_PERSON", "start_char": 30926, "end_char": 30941, "source": "ner", "metadata": {"in_sentence": "Mr. D. N. Mukherjee seeks to distinguish between the transference of the licence and that of the machinery.", "canonical_name": "D. N. Mukherjee"}}, {"text": "s. 537", "label": "PROVISION", "start_char": 33115, "end_char": 33121, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 33129, "end_char": 33155, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1966_3_948_959_EN", "year": 1966, "text": "HARINAGAR SUGAR MILLS LTD.\n\nA ·- • v.\n\nM. W. PRADHAN .......\n\nMarch 21, 1966\n\n(K. SUBBA RAO, V. RAMASWAMJ AND]. M. SHELAT, JJ.) B\n\nCivU Procedure Code 1908, OXL r. 1 (d)-Receiver directed by court , lo flU winding up pOl/tlon agabut debtor Company--Such direction whether\n\npermltl1d by said rwlt.\n\nIndian Compania Act, 1956, ss. 439(1) and 434-Wiuthtr Receiver appolnttrd by Court is a 'creditor' within the meaning of s. 439-Notl~ 11iven by Receiver to company asking It to pay 10 the Additional Collector c\n\nt~ income tax demanded from it under s. 46 of the Indian Income-tax Act, 1922--.s'uch notice whether contravenes s. 434-Company not moking payment to Additional Collector whttMr 'negkcts to pay lls deb(, within\n\nmeaning of •. 434.\n\nTho appellant company purchased a farm from a joint Hindu family tor Rs. 40 laca out of which Rs. 25 lacs remained to be paid. The lncome- IAX Ofllcer served a notice under s. 46 of the Indian Income-tax Act, 1922 on the company asking it not to pay the said amount of Ra. 2S lacs to the joint family but towards income-tax payable by the said family.\n\nThereafter ooe of the mernben of the joint family filed a suit for the partition of the family assets and at his request the coon appointed a\n\nRocciver.\n\nThe Receiver by notice under s. 434 of the Companies Act asked the company to pay Rs. 25 lacs towards income-lax to the Additional Collector and when it did not do so he 90Ught permis.ion from the Coun under 0.XL r. I (d) of the Code of c:vil Procedure to filo a\n\ntition for winding up against the company .. which was allowed.\n\nThe Company's appeal to the Division Bench of the High Court failed and it appealed to this Court by special leave.\n\nThe Court had to comider (i) whether the coun could under O.XL r. l(d) of the Code authorise the\n\nReceiver to file a winding-up petition against the company, (ii) whether a received was a 'creditor' within the meaning of s. 439(1) of the Indian\n\nCompanies Act, (iii) whether in asking the company to pay the sum in question to the Additional Collector the Receiver contravened s. 434,\n\n(iv) whether in not making the payment the company 'neglected to pay its debt' and (v) whether there was a bona fide dispute as to the liability of the company to pay the debt.\n\nHELD :\n\n(i) AMuming that a petition for winding up of a company WolS not a suit wilhin tc meaning of O.XL r. I (d) of the Code, the other powers mentioned therein wero comprehensive enough to enable the Receiver to take D\"\"\"-'sary proceedings to realise the property of and debl5 due to the joint family.\n\nA winding up petition ia one of the modes of realising deb ta form a company, and the Respondent therefore bad power to file such a petition.\n\nBowes v. Hope Lift Insurance a1ld GUIJ1'antt1 Co. (1865) II H.L.C. 388, Rt Gtneral Company for Promotion of Land Credit, (1870) L.R. S Ot.D. 380 and Re National Ptrmontnt Building Socitty, (1869) L.R. S Ch.D. 309, Relied on.\n\nThat apart, under 0.XL. R. I ( d) the Court can also confer on the Rcc:eivor ailch of those powers as the Coun think& ftL It is implicit in 948\n\nA -\n\nthis apparently wide power that it shall be confined to the scope of the Receiver's administration of the estate. If, for the proper and effective management of the estate of which the Receiver has been appointed the Court thinks fit that it shall confer power on the said Receiver to talce steps for the winding up of the debtor-company, it must be conceded that the Court shall have power to give necessary directions to the Receiver in that regard. [951 G-952 E]\n\n(ii) The Receiver was a 'creditor' within the meaning of s. 439(1) (b} of the Indian Companies Act. [956 DJ\n\nIn Re Sacker, Ex Parle Sacker (1888) L.R. 22 Q.B. 179 and In re- Macoun, L.R. (1904) 2 K.B. 700, considered.\n\nK. V. Mallayya v. T. Ramaswami & Co .• [1963) II M.L.J. 100 (S.C.), relied on.\n\n(iii) By asking the company to pay the sum in question to the Addition Collector the requirements of s. 434 wer~ not contravened. [957 DJ\n\nJapan Cotton Trading Co. Ltd. v. Jajodia Colton Mll/J Ltd. (1926) l.L.R. 54 Cal. 345, Kureshi v. A.rgu Footwear Ltd. A.I.R. 1931 Rang. 306 and W. T. Henley's Telegraph Works Co. Ltd., Calcutta>\". Gorak/ipur Electric Supply Co. Ltd., Allahabad, A.I.R. 1936 All. 840, referred to.\n\n(iv) By not paying the amount in question to the Additional Collector the company clearly neglected to pay the amount within the meaning of s. 434 of the Indian Income-tax Act. [958 HJ\n\nIn re Europe and Banking Company Ex Parle Bayll< (1866) L.R. 2 Eq. 521. distinguished.\n\n( v) On the facts of the case thei:e was no bona fide dispute as to tho liability of the company to the joint family so as to render the winding up petition an abuse of the process of the Court. (9 59 F]\n\nW. T. Henley's Telegraph Works Co. Ltd., Calcutta v. Gorakhpur Electric Supply Co. Ltd., Allahabad, A.LR. 1936 All. 840 and In rt Gold Hill Mines, (1883) LR. 23 Ch. D. 210, referred to.\n\nCML APPELLATE JURISDICTION : Civil Appeal No. 569 of 1965.\n\nAppeal by special leave from the judgment and order dated December 14, 1964 of the Bombay High Court in Appeal No. 67 of 1964.\n\nN. C. Chatterjee, S. T. Desai, M. M. Vakil, Ganpat Rai and S. S. Khanduja, for the appellant.\n\nS. V. Gupte, Solicitor-General, J. B. Dadachanjl, 0. C. Mathur and Rarinder Narain, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nSubba Rao, J. The facts that gave rise to this appeal may be briefly stated : On January 3, 1933, Messrs. Harinagar Sugar Mills Ltd., hereinafter called the Company, was incorporated under the Indian Companies Act, 1913 (Act 7 of 1913). Narayanlal Bansilal was the Chairman of the Board of Directors of\n\n950 SUPJ.EMB COUIT J.BPO!lTS\n\n(1966] 3 S.C.R.\n\nthe Company.\n\nHe was also the karta and manager of the joint Hindu family consisting of himself, his sons and daughters. As such karta he purchased a large block of shares of the Company from and out of the funds of the joint family. The said family also owned a sugarcane farm at Harinagar in the State of Bihar.\n\nOn March 8, 1956, Narayanlal Bansilal and his three sons sold the said farm to the Company for a sum of Rs. 40,00,000. Under the sale-deed the Company agreed to pay the price in instalments.\n\nThough the Company paid a few instalments, a sum of Rs. 25,00,000. still remained to be paid by it to the joint family.\n\nIn July 1961, one of the sons of Narayanlal Baosilal filed Suit No. 224 of 1964 on the Original Side of the Bombay High Court against his father and others for partition of the joint family properties. Pending the suit, on October 20, 1961, the Court, in exercise. of its powers under O.XL, r. 1, of the Code of Civil Procedure, appointed a Court Receiver as Receiver of all the joint family properties. Long prior to the filing of the said suit for partition, on July 24, 1956, the Additional Income-tax Officer, Section V, Central Bombay, issued a notice to the Company under s. 46 of the Indian Income tax Act, 1922, prohibiting it from paying the debt due by it to the joint family and calling upon it to pay the said amount to the Income-tax authorities towards income-tax due from the said joint family. After the Receiver was appointed, on June 29, 1962, the said Receiver issued a notice under s. 434 of the Indian Companies Act calling upon the Company to pay the amount, due from it to the joint family, with interest to the Additional Collector of Bombay towards the income-tax dues of the family and also informing it that, in case the said payment was not made within 21 days of the receipt of the notice, proceedings for winding up of the Company under the Indian Companies Act would be taken.\n\nAs the Company did not comply with the terms of the said notice, the Receiver moved the High Court for directions and obtained an order on November 22, 1963, authorizing him to file a petition for winding up of the Company. After obtaining the permission of the Court, on January 10, 1964, the Receiver filed a petition in the High Court for winding up of the Company. After hearing the objections filed by the Company, Kantawala, J., admitted the petition and directed advertisements to be given in the newspapers and in the Government Gazette mentioning his order.\n\nThe Company preferred an appeal against that order and that was\n\nheard by a division Bench consisting of Patel and Tulzapurkar, JJ. The learned Judges dismissed the appeal. Hence the present appeal, by special leave.\n\nMr. N. C. Chatterjee, learned counsel for the appellant Com- H pany raises before us the same contentions which were advanced un1usfully on behalf of the Company in the High Court.\n\nWe shall deal with the said contentions seriatlm.\n\n, ,\n\n' '\n\nHAllINAGAR MILLS v. PRADHAN (Subba Rao, J.) 951\n\nA The first contention of the learned counsel is that the Court Receiver had no power to file a petition in the Court for winding up of the Company. Elaborating this contention the learned counsel contends that under O.XL, r. l(d), of the Code of Civil Procedure a court can only confer on a Receiver the power to bring a suit and that the expression \"suit\" does not talce in a peti- B tion for winding up of a company.\n\nOrder XL, r. 1., of the Code of Civil Procedure reads : Where it appears to the Court to be just and convenient, the Court may by order-\n\n(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as n the owner himself has, or such of those powers as the Court thinks fit.\"\n\nIn exercise of the said power, the Court appointed the respondent as the Court Receiver on October 20, 1961, of the properties belonging to the joint family in the suit. The material part of the order reads :\n\n\" ............ IT IS FURTHER ORDERED that the Court Receiver be and is hereby appointed Receiver of the properties belonging to the joint family in suit and all the books of accounts papers and vouchers with all necessary powers under Order XL Rule 1 of the Code of Civil Procedure including power to vote and or exercise all the property rights in respect of shares belonging to the joint family in the several joint stock companies mentioned in the plaint including power to file suit .............................. \" .\n\nUnder this order, all the necessary powers under O.XL, r. I, of the Code of Civil Procedure were conferred upon the Receiver, including the right to file suits. Assuming that a petition for winding up of a company is not a suit within the meaning of O.XL, r. l(d) of the said Code, the other powers mentioned therein are comprehensive enough to enable the Receiver to take necessary proceedings to realise the property of and debts due to the joint family. Can it be said that the petition filed by the Receiver for winding up of the Company is not a mode of realisation of the debt due to the joint family from the Company ? In Palmer's Company Precedents, Part II, 1960 Edn., at p. 25, the following passage appears :\n\nSUPREME COURT REPORTS\n\n[ 1966] 3 S.C.R.\n\n\"A winding up petition is a perfectly proper remedy A for enforcing payment of a just debt. It is the mode of execution which the Court gives to a creditor against a company unable to pay its debts.\" This view is supported by the decisions in Bowes v. Hope Life\n\nInsurance and Guarantee Co.('), Re General Company for Promotion of Land Credit(•) and Re National Permanent Building Society(3).\n\nB It is true that \"a winding up order is not a normal alternative in the case of a company to the ordinary procedure for the realisation of the debts due to it\"; but nonetheless it is a form of equitable execution. Propriety does not affect the power but only its exercise.\n\nIf so, it follows that in terms of cl. (d) of r. 1 of O.XL of the Code of Civil Procedure, a Receiver can file a petition for winding up of a c company for the realisation of the properties, movable and immovable, including debts, of which he was appointed the Receiver.\n\nIn this view, the respondent had power to file the petition in the Court for winding up of the Company.\n\nThat apart, under O.XL, r. l(d), of the Code of Civil Procedure the Court can also confer on the Receiver such of those powers as D the Court thinks fit. It is implicit in this apparently wide power that it shall be confined to the scope of the Receiver's administration of the estate.\n\nIf, for the proper and effective management of the estate of which the Receiver has been appointed the Court thinks fit that it shall confer power on the said Receiver to take steps for winding up of the debtor-company, it must be conceded E that the Court will have power to give necessary directions to the Receiver in that regard.\n\nOn November 22, 1963, the Receiver obtained the directions of the Court empowering him to file the winding-up petition against the Company. But, it is contended that the learned Judge made that order without prejudice to the contentions of the members of the joint family and that one of the contentions was that a petition for the winding up of the Company was not maintainable at the instance of the Receiver. This reservation, no doubt, entitles the appellant to raise the plea of the maintainability of the petition by the Receiver for winding up of the Company. But it docs not bear on the question of authorization obtained by the Receiver to file the said petition. The question of the maintainabili!f of the petition will be dealt with by us at a later stage of the Judgment. In this view also the Receiver had the power to file the petition before the Court for winding up of the Company. There are, therefore, no merits in the first contention.\n\nThe second contention of the learned counsel is that the Court Receiver is not a \"creditor\" within the meaning of the relevant \"-----· (I) 11865) ti H.LC. 388.\n\n(2) [1870) LR. 5 Ch. D. 380.\n\n(3) [1869) L.R. 5 Ch. D. 3<J9.\n\nI '\n\nA . sections of the Indian Companies Act. The relevant provisions of the Indian Companies Act read:\n\nSection 433. A company may be wound up by the Court,-\n\n(e) if the company is unable to pay its debts.\n\nSection 434. (1) A company shall be deemed to be unable to pay its debts-\n\n(a) if a creditor, by assigning or otherwise, to whom the company is indebted in a sum exceeding five hundred rupees then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor.\n\nSection 439. (1) An application to the Court for the winding up of a company shall be by petition presented, subject to the provisions of this section,-\n\n(d) by any creditor or creditors, including any contingent of prospective creditor or creditors.\n\nA combined reading of these provisions indicates that unless the Court Receiver is a creditor by assignment or otherwise to whom the company is indebted, he cannot maintain an application under s. 439 of the Indian Companies Act. In support .of the contention that he is not such a creditor, strong reliance is placed on the decision in In Re Sacker, Ex Parte Sacker('). The facts of that case, as given in the head-note are as follows: In an action in the Chancery Division a receiver was appointed to collect and receive goods comprised in a charge given to the plaintiffs by one of the defendants, including therein any balance of the proceeds of the goods so charged in the hands of the other defendant.\n\nAn order was subsequently made for the payment by the last-mentioned defendant to the receiver of a specific sum, being money received by him in respect of the proceeds of the goods, and comprised in the charge. The Court of Appeal held that the receiver was not a \"creditor\" entitled to present a bankruptcy petition against such defendant within the meaning of s. 6 of the Bankruptcy Act, 1883. Lord Esher, M.R., in coming to the said conclusion described the legal status of a receiver thus:\n\n\"The petitioner is a receiver. He is not a trustee.\n\nThere is no debt due to him from the appellant. He could\n\n(I) [1888] L.R. 22 Q.B. 179, 183, 185, 186.\n\n\nSUPRBMB COURT RBPORTS\n\n[1966] 3 S.C.R.\n\nnot sue for this sum of money in his own name either at law or in equity.\n\nEven if he could by the authority of te Court sue fo~ it in his own name, is the money due to hi~ personally either at law or in equity? At law it is certamly not. The debt was due to another person for whom he 1s not a trustee. The money will not he his when he has got it. Would it he his in equity? I apprehend that he would hold it subject to the authority of the Court, who would deal with it according to the circumstances of the case, but certainly not for his benefit.\"\n\nFry, L.J., said much to the same effect thus:\n\n\"There is no debt of any kind due from Sacker to the C receiver; consequently he is not a good petitioning creditor, and the petition cannot be maintained.\"\n\nLopes, L.J., expressed the same idea thus:\n\n\"To constitute a good petitioning creditor's debt the alleged debt must be certainly due and payable to the D person who presents the petition. There is no debt due to this receiver. He could not maintain an action of debt for this money in his own name.\"\n\nThis decision, therefore, goes to the extent of holding that there is no debt due to a receiver either at law or in equity, that he cannot maintain an action of debt for the money in his own name and that, therefore, he is not a good petitioning creditor. The scope of this decision was explained by the Court of Appeal in !11 re Macowi(1).\n\nThere, on the dissolution of a firm of stock-brokers by the death of one of the partners, the partnership assets, including a debt to the late firm in respect of certain Stock Exchange transactions, were assigned by the surviving partners to L for the purpose of winding up the partnership, and notice of the assignment was served on the debtor. L obtained a decree against the debtor. Thereafter, he commenced an action in the Chancery Division for the winding up of the partnership, and in that action a receiver was appointed of the partnership assets. The receiver took an assignment of the judgment debt from L and obtained leave to issue execution. Thereafter he served a bankruptcy notice on the debtor and ultimately presented a bankruptcy petition against the debtor.\n\nThe Court of Appeal held that, as the receiver had obtained an assignment of the judgment debt, he was a creditor entitled to present a bankruptcy petition. In the context, when the judgment in In re Sacker's case(1) was pressed upon the Court to come to a contrary conclusion, Vaughan Williams, L.J., had this to say in regard to that judgment:\n\n(I) L. R. [19J4J 2 K. B. 7J.l, 7v3.\n\n(2)[1888] LR. 22Q.B.179\n\nt ..\n\nHARINAGA!t MILLS v. PllADHAN (Subba Rao, J.) 9 5 5\n\n\"In these circumstances it seems to me that we ought not to hold the case of In re Sacker(') to be an authority for the proposition that a receiver cannot be a good petitioning creditor even though the state of things is such that he could maintain an action at law. Itis plain that Fry L.J. thought that he could; and Lopes L.J. seems to have taken the same view-that is, the view that if the receiver were the holder of a bill of exchange he could be a good petitioning creditor. In the present case the receiver happns to be the assignee of a judgment, and I think that bemg the assignee of a judgment he can be a good petitioning creditor even though when the money is received it is recovered for the purpose of enabling the Court of Chancery to deal with it.\"\n\nA comparison of these two decisions leads to the following legal position: If a receiver could maintain an action at law or in equity for the recovery of a debt, he would be a good petitioning creditor; and, if he could not; he would not be one. In In re Sacker's case(') it was not possible for the receiver to bring an action to recover the debt either at law or in equity, whereas in Macoun's case(2), the receiver, having obtained the assignment of the debt, could maintain an action at law for the recovery of the debt. Therefore, even in England a receiver, who can maintain an action to recover a debt, would be a good petitioning creditor. In India, the scope of the receiver's power is governed by the express provisions of the Code of Civil Procedure. It is common place that a receiver appointed by court has no estate or interest himself and the scope of his power is defined by the provisions of O.XL of the said Code and the specific orders made by the Court thereunder.\n\nHe is frequently spoken to as the \"hand of the Court\". In exercise of the power under the said cl. ( d) if a court confers upon the receiver power to bring a suit to realise the assets which are the subject-matter of the suit, it cannot be denied that the said receiver can file suits to recover the debts forming part of the said assets. This Court in K. V. Ma/ayya v. T. Ramaswami & Co. (3) held that a receiver authorized to file suits to recover debts could institute suits therefor in his own name. In that event, the position of such a receiver is analogous to that of a receiver who can file an action in law or in equity to recover a debt under the English law. If the latter is a creditor in English law in respect of the debt recoverable by him, there is no reason why a receiver empowered to file a suit under O.XL of the Code of Civil Procedure cannot be a creditor. In one case there is a voluntary assignment and in the other there is a statutory assignment.\n\n(1) (18881 L.R 22 Q.B.179.\n\n(2) L R. [19;41 2. K. B. 700\n\n(3) [1963] 2 M. L J, 110 (S. C.).\n\n956 SUPllEME COURT REPORTS\n\n(1966] 3 S.C.R.\n\nThe relevant provisions of the Indian Companies Act also lead to the same position. Section 434 speaks of a creditor by assignment or otherwise to whom the company is indebted in a particular sum. Such creditor can file a petition for winding up under s. 439 of the said Act. A creditor, therefore, under the Indian Companies Act is any person who acquires that character by assignment or otherwise. The expression \"otherwise\" takes in any person to whom another becomes indebted howsoever the relationship of creditor and debtor is brought about between them. We come back to the meaning of the word \"creditor\". Stroud's Judicial Dictionary, 3rd Edn., Vol. I, defines \"creditor\" to mean a person to whom a debt is payable. Though this is one of the many definitions given in the said dictionary, this appears to be the appropriate meaning.\n\nA receiver appointed by the court to realise a debt can demand the payment of the debt. If the debtor pays the debt to him, he gets a full discharge; in default of payment, the receiver can file a suit in his own name and obiain a decree. After obtaining the decree he will certainly be a judgment-creditor. Such a receiver is a person to whom a debt is payable by the debtor. In the present case, the respondent was authorised to file suits to realise the assets of the joint family, including the debt. We hold that the respondent is a creditor within the meaning of s. 439(1)(b) of the Indian Companies Act and, therefore, is competent to maintain the petition for winding up of the Company.\n\nIt is then contended that the notice issued by the Receiver was not in strict compliance with the statutory requirements of s. 434 of the Indian Companies Act. Two main defects are pointed out, namely, the notice did not require the appellant to pay the debt to the joint family or the Receiver but to the Additional Collector of Bombay and the said notice put it beyond the reach of the Company to secure or compound for the debt to the reasonable satisfaction of the Court Receiver.\n\nSection 434 of the Indian Companies Act has been quoted earlier. Under the section before a company shall be deemed to be unable to pay its debts two conditions must be satisfied, namely, (i) the creditor shall have delivered a demand in the prescribed manner on the company to pay the sum due to him; and (ii) the company has for three weeks thereafter neglected to pay the same, or to secure or compound for it to the reasonable satisfaction of the creditor. We have already held that the Receiver is a creditor within the meaning of cl. (a) of s. 434(1) of the Indian Companies Act. In the statutory notice issued by the Receiver he had called upon the Company to make payment of Rs. 25,00,000/ to the Additional Collector of Bombay by whom the debt had been attached within the prescribed period of 21 days.\n\nHe had to do so because the Additional Collector had served a notice dated July 24, 1956, under s. 46(5)(a) of the Indian Incometax Act, 1922, calling upon the Company to pay to him whatever\n\nJ ...\n\nHAlt!NAGAR MILLS v. PRADHAN (Subba Rao, J.) 957\n\namount was held by the Company on account of the joint family.\n\nSection 434(1 )(a) of the Indian Companies Act does not say that the demand made by the creditor on the Company shall be to pay the amount due only to the creditor and not to any other person; nor does it by necessary implication impose any such condition. What is necessary is that the debtor by paying the amount demanded shall be in a position to get full discharge of his liability. In the present case the Receiver directed the amount to be paid to the Additional Collector of Bombay for the purpose of liquidating the income-tax payable by the joint family. Indeed, by paying the said amount, and in view of the notice served on the Company under s. 46(5)(a) of the Indian Income-tax Act, 1922, the Company will get a full discharge of its liability to the joint family. Section 46(5)\n\n(a) of the Income-tax Act says that any person making any payment in compliance with a notice under s.46(5) (a)shall be deemed to have made the payment under the authority of the assessee and the receipt of the Income-tax Officer shall constitute a good and sufficient discharge of the liability of such person to the assessee. The Receiver, therefore, in directing the amount to be paid to the Additional Collector of Bombay did not do anything in derogation of the provisions of s. 434(l)(a) of the Indian Companies Act.\n\nNor are there any merits in the second link of the contention.\n\nThe question is whether, if proceedings were taken against the Company under s. 46(5)(a) of the Indian Income-tax Act, the Company was deprived of the opportunity to pay the sum due to the respondent or to secure or compound for it to the reasonable satisfaction of the creditor within the meaning of s. 434(1)(a) of the Indian Companies Act. After the statutory notice the Company could pay the sum demanded or secure or compound for it to the reasonable satisfaction of the creditor. The section does not confer a right on a debtor but only gives him an opportunity to discharge the debt in one or other of the ways mentioned therein. The debtor could secure or compound for a debt only where the circumstances under which the demand is made permit such a mode of discharge. But whereas in this case both the debtor and the creditor were under an obligation to discharge the income-tax dues and, as the creditor directed the debtor to pay the entire amount due to him towards the income-tax dues, there is no scope for the debtor to approach the creditor for securing or compounding his claim. In this view, no right of the Company is violated. as it has done under s. 434(l)(a) of the Indian Companies Act. That apart, s. 46(5)(a) of the Indian Income-tax Act does not in terms prevent the debtor from compounding his claim with the creditor. It only directs him to hold the money for or on account of the assessee to pay to the Incometax Officer. But, if in contravention of the notice issued to him, the debtor pays the said money to the creditor, he will be personally liable to the extent of the liability discharged or to the extent of\n\n\n(1966] 3 S.C.R.\n\nthe tax and penalties, whichever is less.\n\nThe Income-tax Officer can also proceed against the debtor, as if the amount in respect whereof the notice was issued was attached by the Collector in exercise of his powers under the proviso to sub-s. (2) of s. 46 of the Indian Income-tax Act. These provisions do not prevent the debtor from compounding his claim with the creditor. If he compounds the claim, any agreement entered into by him with the creditor will not affect his liability t\" pay the income-tax of the creditor to\\the extent covered by the notice issued under s. %(5) (a) of the Incometax Act; but the agreement would certainly be binding between the creditor and the debtor. The Income-tax Officer has no concern with it. In either view, therefore, the notice cannot be said to have been issued in contravention of the provisions of s. 434(I)(a) of the Indian Companies Act.\n\nNo doubt courts have held, in our view rightly, that a statutory notice under s. 434(1)(a) of the Indian Companies Act shall strictly comply with the provisions of the said\n\nection: see J:ipa11 Cotton Trading Co. Lid. v. Jajodia Cotton Mills, Ltd.(1); K11reshi v. Argu< Footwear Ltd.(2); and W. T. Henley's Telegraphs Works Co., Ltd., Calcutta v. Gorakhpur Electric Supply Co., Ltd., Allahabad(').\n\nBut in this case the statutory notice issued by the respondent did not violate any of the requirements of the Section. We, therefore, reject this contention.\n\nThe next contention is that the appellant had not neglected to pay the sum to the respondent, as the said amount must he deemed to have been attached by the Collector in exercise of his powers\n\nundr the proviso to sub-s.(2) of s. 46 of the Indian Income-tax Act,\n\n1922. In support of this contention reliance is placed upon In re European Ba11ki111: Company Ex Parre Baylis (I). There, a petition was presented for winding-up of a Banking Company for a debt of £65 due to the petitioner; but the said debt was attached in the Lord Mayor's Court. The petition was dismissed on the ground that, 'though the attachment did not absolutely do away with the debt, it seized the debt into the hands of the Lord Mayor's Court.\n\nIn that case the demand was that the debtor should pay the amcunt to the petitioning creditor and because of the attachment of that amount by Lord Mayor's Court the debtor could not pay the amount to the creditor.\n\nBut that judgment cannot possibly be of any help to the appellant, for in the instant case the Receiver asked the debtor to pay the amount due to the joint family to the Additional Collector, Bombay, towards the income-tax due from the joint family. The debtor was not only not aked to do som~ thing which was legally prohibited but was asked to comply with the Collector's requisition under s. 46 of the Indian Income-tax Act,\n\n1922.\n\nBy not doing so, the Company clearly neglected to pay the amount within the meaning ors. -134 of the Indian Companies Act.\n\n(l) [1'26] I.L.R. 54 Cal. 345.\n\n(2) A.I.R. 1931 Rang_ 3)6.\n\n(3) A.l.R. t936 All. 84~. (4) [181>6] L.R. 2 Eq. S21.\n\nj F\n\nLastly it is argued that there was a bona fide dispute in respect of the liability of the Company to the joint family. It is said that the Company's case was that the debt was due to four individuals mentioned in the conveyance, namely, the father and his three sons, whereas the Receiver's case was that the amount was due to the joint family and, therefore, in the circumstances it cannot be said that the Company neglected to pay the amount to the Receiver.\n\nIn W. T. Henley's Telegraph Works Co., Ltd., Calcutta v. Gorakhpur Electric Supply Co., Ltd., Allahabad(') it was ruled that a mere service of notice of demand of debt by a creditor on a solvent company did not entitle the creditor to a winding-up order if the company bona fide disputed the existence of the debt. In that case it was found that there was a bona fide dispute between the parties and that the notice issued was a vehicle of oppression and an abuse of the process of the Court. But the same cannot be said in the present case. In In re Gold Hill Mines\\2) also a winding-up petition was dismissed on the finding that it was an abuse of the process of the Court, it being a petition to compel payment of a small debt which was under bona fide dispute.\n\nIn the present case, Narayanlal Bansilal was not only the karta of the joint family but was also the Chairman of the Board of Directors of the Company. In the partition suit he filed an affidavit wherein he stated:\n\n\"Referring to para !O(c) of the affidavit I deny there is any manipulation in the balance sheet of Harinagar Sugar Mills Ltd., as falsely sought to be suggested by the 3rd defendant. No loan of Rs. 25,00,000/- has been given by me to the said company. The said amount is the balance of the purchase price payable by the said company to the joint family in respect of Harinagar Cane Farm.\"\n\nIn view of the said affidavit it is manifest that the alleged dispute was not bona fide but was only a part of a scheme of collusion between the Company and the karta of the joint family. There are, therefore, no\" merits in any of the contentions raised by the Company.\n\nIn the result, the appeal fails and is dismissed with costs.\n\nAppeal dismissed.\n\n(1) A.I.R. 1936 Au. 84Q.\n\n(2) (1833) L.R. 23 Ch. D. 210.\n\nM!2Ssp. Cl./65-2,500-11-2-67-G!PF.", "total_entities": 135, "entities": [{"text": "HARINAGAR SUGAR MILLS LTD", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "Harinagar Sugar Mills Ltd.", "offset_not_found": false}}, {"text": "M. W. PRADHAN", "label": "RESPONDENT", "start_char": 39, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "M. W. PRADHAN", "offset_not_found": false}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 79, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "M. SHELAT, JJ.", "label": "JUDGE", "start_char": 112, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "J.M. 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C. Chatterjee", "label": "OTHER_PERSON", "start_char": 5123, "end_char": 5139, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee, S. T. Desai, M. M. Vakil, Ganpat Rai and S. S. Khanduja, for the appellant."}}, {"text": "S. T. Desai", "label": "OTHER_PERSON", "start_char": 5141, "end_char": 5152, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee, S. T. Desai, M. M. Vakil, Ganpat Rai and S. S. Khanduja, for the appellant."}}, {"text": "M. M. Vakil", "label": "OTHER_PERSON", "start_char": 5154, "end_char": 5165, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee, S. T. Desai, M. M. Vakil, Ganpat Rai and S. S. Khanduja, for the appellant."}}, {"text": "Ganpat Rai", "label": "OTHER_PERSON", "start_char": 5167, "end_char": 5177, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee, S. T. Desai, M. M. Vakil, Ganpat Rai and S. S. Khanduja, for the appellant."}}, {"text": "S. S. Khanduja", "label": "OTHER_PERSON", "start_char": 5182, "end_char": 5196, "source": "ner", "metadata": {"in_sentence": "N. C. Chatterjee, S. T. Desai, M. M. Vakil, Ganpat Rai and S. S. Khanduja, for the appellant."}}, {"text": "S. V. Gupte", "label": "JUDGE", "start_char": 5218, "end_char": 5229, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General, J. B. Dadachanjl, 0."}}, {"text": "B. Dadachanjl", "label": "LAWYER", "start_char": 5253, "end_char": 5266, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General, J. B. Dadachanjl, 0."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 5268, "end_char": 5280, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte, Solicitor-General, J. B. Dadachanjl, 0."}}, {"text": "Rarinder Narain", "label": "LAWYER", "start_char": 5285, "end_char": 5300, "source": "ner", "metadata": {"in_sentence": "C. Mathur and Rarinder Narain, for the respondent."}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 5367, "end_char": 5376, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSubba Rao, J. The facts that gave rise to this appeal may be briefly stated : On January 3, 1933, Messrs. Harinagar Sugar Mills Ltd., hereinafter called the Company, was incorporated under the Indian Companies Act, 1913 (Act 7 of 1913)."}}, {"text": "January 3, 1933", "label": "DATE", "start_char": 5448, "end_char": 5463, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSubba Rao, J. The facts that gave rise to this appeal may be briefly stated : On January 3, 1933, Messrs. Harinagar Sugar Mills Ltd., hereinafter called the Company, was incorporated under the Indian Companies Act, 1913 (Act 7 of 1913)."}}, {"text": "Harinagar Sugar Mills Ltd.", "label": "PETITIONER", "start_char": 5473, "end_char": 5499, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSubba Rao, J. The facts that gave rise to this appeal may be briefly stated : On January 3, 1933, Messrs. Harinagar Sugar Mills Ltd., hereinafter called the Company, was incorporated under the Indian Companies Act, 1913 (Act 7 of 1913).", "canonical_name": "Harinagar Sugar Mills Ltd."}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 5560, "end_char": 5586, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Narayanlal Bansilal", "label": "OTHER_PERSON", "start_char": 5604, "end_char": 5623, "source": "ner", "metadata": {"in_sentence": "Narayanlal Bansilal was the Chairman of the Board of Directors of\n\n950 SUPJ.EMB COUIT J.BPO!lTS\n\n(1966] 3 S.C.R.\n\nthe Company.", "canonical_name": "Narayanlal Bansilal"}}, {"text": "Harinagar", "label": "GPE", "start_char": 5999, "end_char": 6008, "source": "ner", "metadata": {"in_sentence": "The said family also owned a sugarcane farm at Harinagar in the State of Bihar."}}, {"text": "Bihar", "label": "GPE", "start_char": 6025, "end_char": 6030, "source": "ner", "metadata": {"in_sentence": "The said family also owned a sugarcane farm at Harinagar in the State of Bihar."}}, {"text": "March 8, 1956", "label": "DATE", "start_char": 6036, "end_char": 6049, "source": "ner", "metadata": {"in_sentence": "On March 8, 1956, Narayanlal Bansilal and his three sons sold the said farm to the Company for a sum of Rs."}}, {"text": "Narayanlal Baosilal", "label": "OTHER_PERSON", "start_char": 6379, "end_char": 6398, "source": "ner", "metadata": {"in_sentence": "In July 1961, one of the sons of Narayanlal Baosilal filed Suit No.", "canonical_name": "Narayanlal Bansilal"}}, {"text": "October 20, 1961", "label": "DATE", "start_char": 6569, "end_char": 6585, "source": "ner", "metadata": {"in_sentence": "Pending the suit, on October 20, 1961, the Court, in exercise."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 6646, "end_char": 6673, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "July 24, 1956", "label": "DATE", "start_char": 6810, "end_char": 6823, "source": "ner", "metadata": {"in_sentence": "Long prior to the filing of the said suit for partition, on July 24, 1956, the Additional Income-tax Officer, Section V, Central Bombay, issued a notice to the Company under s. 46 of the Indian Income tax Act, 1922, prohibiting it from paying the debt due by it to the joint family and calling upon it to pay the said amount to the Income-tax authorities towards income-tax due from the said joint family."}}, {"text": "Additional Income-tax Officer, Section V, Central Bombay", "label": "ORG", "start_char": 6829, "end_char": 6885, "source": "ner", "metadata": {"in_sentence": "Long prior to the filing of the said suit for partition, on July 24, 1956, the Additional Income-tax Officer, Section V, Central Bombay, issued a notice to the Company under s. 46 of the Indian Income tax Act, 1922, prohibiting it from paying the debt due by it to the joint family and calling upon it to pay the said amount to the 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"PROVISION", "start_char": 7248, "end_char": 7254, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income tax Act, 1922", "statute": "the Indian Income tax Act, 1922"}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 7269, "end_char": 7282, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bombay", "label": "GPE", "start_char": 7405, "end_char": 7411, "source": "ner", "metadata": {"in_sentence": "After the Receiver was appointed, on June 29, 1962, the said Receiver issued a notice under s. 434 of the Indian Companies Act calling upon the Company to pay the amount, due from it to the joint family, with interest to the Additional Collector of Bombay towards the income-tax dues of the family and also informing it that, in case the said payment was not made within 21 days of the receipt of the notice, proceedings for winding up of the Company under the Indian Companies Act would be taken."}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 7624, "end_char": 7637, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "November 22, 1963", "label": "DATE", "start_char": 7794, "end_char": 7811, "source": "ner", "metadata": {"in_sentence": "As the Company did not comply with the terms of the said notice, the Receiver moved the High Court for directions and obtained an order on November 22, 1963, authorizing him to file a petition for winding up of the Company."}}, {"text": "January 10, 1964", "label": "DATE", "start_char": 7927, "end_char": 7943, "source": "ner", "metadata": {"in_sentence": "After obtaining the permission of the Court, on January 10, 1964, the Receiver filed a petition in the High Court for winding up of the Company."}}, {"text": "Kantawala", "label": "JUDGE", "start_char": 8075, "end_char": 8084, "source": "ner", "metadata": {"in_sentence": "After hearing the objections filed by the Company, Kantawala, J., admitted the petition and directed advertisements to be given in the newspapers and in the Government Gazette mentioning his order."}}, {"text": "Patel", "label": "JUDGE", "start_char": 8328, "end_char": 8333, "source": "ner", "metadata": {"in_sentence": "The Company preferred an appeal against that order and that was\n\nheard by a division Bench consisting of Patel and Tulzapurkar, JJ."}}, {"text": "Tulzapurkar", "label": "JUDGE", "start_char": 8338, "end_char": 8349, "source": "ner", "metadata": {"in_sentence": "The Company preferred an appeal against that order and that was\n\nheard by a division Bench consisting of Patel and Tulzapurkar, JJ."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 8968, "end_char": 8995, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 9174, "end_char": 9201, "source": "gazetteer", "metadata": 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"start_char": 16137, "end_char": 16142, "source": "ner", "metadata": {"in_sentence": "Lord Esher, M.R., in coming to the said conclusion described the legal status of a receiver thus:\n\n\"The petitioner is a receiver."}}, {"text": "SUPRBMB COURT RBPORTS\n\n[1966] 3 S.C.R.", "label": "COURT", "start_char": 16388, "end_char": 16426, "source": "ner", "metadata": {"in_sentence": "SUPRBMB COURT RBPORTS\n\n[1966] 3 S.C.R.\n\nnot sue for this sum of money in his own name either at law or in equity."}}, {"text": "Fry", "label": "JUDGE", "start_char": 16982, "end_char": 16985, "source": "ner", "metadata": {"in_sentence": "Fry, L.J., said much to the same effect thus:\n\n\"There is no debt of any kind due from Sacker to the C receiver; consequently he is not a good petitioning creditor, and the petition cannot be maintained.\""}}, {"text": "Lopes", "label": "JUDGE", "start_char": 17187, "end_char": 17192, "source": "ner", "metadata": {"in_sentence": "Lopes, L.J., expressed the same idea thus:\n\n\"To constitute a good petitioning creditor's debt the alleged debt must be certainly due and payable to the D person who presents the petition."}}, {"text": "Vaughan Williams", "label": "JUDGE", "start_char": 18886, "end_char": 18902, "source": "ner", "metadata": {"in_sentence": "In the context, when the judgment in In re Sacker's case(1) was pressed upon the Court to come to a contrary conclusion, Vaughan Williams, L.J., had this to say in regard to that judgment:\n\n(I) L. R. [19J4J 2 K. B. 7J.l, 7v3."}}, {"text": "Macoun", "label": "OTHER_PERSON", "start_char": 20229, "end_char": 20235, "source": "ner", "metadata": {"in_sentence": "In In re Sacker's case(') it was not possible for the receiver to bring an action to recover the debt either at law or in equity, whereas in Macoun's case(2), the receiver, having obtained the assignment of the debt, could maintain an action at law for the recovery of the debt."}}, {"text": "England", "label": "GPE", "start_char": 20386, "end_char": 20393, "source": "ner", "metadata": {"in_sentence": "Therefore, even in England a receiver, who can maintain an action to recover a debt, would be a good petitioning creditor."}}, {"text": "India", "label": "GPE", "start_char": 20493, "end_char": 20498, "source": "ner", "metadata": {"in_sentence": "In India, the scope of the receiver's power is governed by the express provisions of the Code of Civil Procedure."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 20575, "end_char": 20602, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 21657, "end_char": 21684, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 21978, "end_char": 21991, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 434", "label": "PROVISION", "start_char": 22024, "end_char": 22035, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 439", "label": "PROVISION", "start_char": 22192, "end_char": 22198, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 22256, "end_char": 22269, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Stroud", "label": "OTHER_PERSON", "start_char": 22553, "end_char": 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"source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 28404, "end_char": 28418, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 434(I)(a)", "label": "PROVISION", "start_char": 28979, "end_char": 28991, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 29006, "end_char": 29019, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 434(1)(a)", "label": "PROVISION", "start_char": 29100, "end_char": 29112, "source": "regex", "metadata": {"statute": null}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 29127, "end_char": 29140, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 46", "label": "PROVISION", "start_char": 29807, "end_char": 29812, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act", "label": "STATUTE", "start_char": 29820, "end_char": 29841, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 46", "label": "PROVISION", "start_char": 30907, "end_char": 30912, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act", "label": "STATUTE", "start_char": 30920, "end_char": 30941, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Companies Act", "label": "STATUTE", "start_char": 31059, "end_char": 31072, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S21", "label": "PROVISION", "start_char": 31184, "end_char": 31187, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act,\n\n1922", "statute": "the Indian Income-tax Act,\n\n1922"}}, {"text": "W. T. Henley", "label": "OTHER_PERSON", "start_char": 31660, "end_char": 31672, "source": "ner", "metadata": {"in_sentence": "In W. T. Henley's Telegraph Works Co., Ltd., Calcutta v. Gorakhpur Electric Supply Co., Ltd., Allahabad(') it was ruled that a mere service of notice of demand of debt by a creditor on a solvent company did not entitle the creditor to a winding-up order if the company bona fide disputed the existence of the debt."}}, {"text": "Gold Hill Mines\\2", "label": "ORG", "start_char": 32208, "end_char": 32225, "source": "ner", "metadata": {"in_sentence": "In In re Gold Hill Mines\\2) also a winding-up petition was dismissed on the finding that it was an abuse of the process of the Court, it being a petition to compel payment of a small debt which was under bona fide dispute."}}, {"text": "Harinagar Sugar Mills Ltd.", "label": "ORG", "start_char": 32738, "end_char": 32764, "source": "ner", "metadata": {"in_sentence": "O(c) of the affidavit I deny there is any manipulation in the balance sheet of Harinagar Sugar Mills Ltd., as falsely sought to be suggested by the 3rd defendant."}}, {"text": "Harinagar Cane Farm", "label": "ORG", "start_char": 33006, "end_char": 33025, "source": "ner", "metadata": {"in_sentence": "The said amount is the balance of the purchase price payable by the said company to the joint family in respect of Harinagar Cane Farm.\""}}]}
{"document_id": "1966_1_104_108_EN", "year": 1966, "text": "MIS. NANDRAM HUNATRAM, CALCUTTA\n\nUNION OF INDIA & ANR.\n\nMarch 29, 1966\n\n[M.\n\nH!DAYATULLAH, J. R. MUDHOLKAR, R. S. BACHAWAT\n\nAND\n\nJ. M. SHELAT, JJ.1\n\nMines and Minerals-Failure t.o fulfil condition of lease and enda!lQering colliery-Government if can determine lease-Revi3ion-\n\nProcedure for passing order-Mineral Concession Rules, 1960.\n\nThe appellant-firm held mining lease of a colliery on the condi tlon to continue the wnrk, without voluntary intermission, in a ski!· fut and v.\"Orkmanlike manner. The partners fell out amongst themaelves, the work of the colliery stopped, wages of the labourers were not paid, the essential services stopped working, and the colliery began to get flooded. The State Government stepped in and made a promise to the essential workmen that their wages would be paid D and this saved the colliery. The State Government gave a notice asking the firm to remedy the defect within sixty days failing which It would take over the colliery. As the firm did nothing to remove the defects and did not request for extension of time, the State G<lvernmcnt took over the colliery and terminated the lease. The firm filed a revision before the Central Government. The Central Government asked for the comments of the State Government and invited the firm to make its own comment upon the reply of the State Gov ernment. Taking the entire matter into consideration, the Central E Government rejected the revision. In appeal to this Court, the firm contended that the action by the State Government was arbitrary and highhanded and that the Central Government did not give a hearing to the firm and also did not give any reasons in its order dismissing the revision.\n\nHELD: The action of the State Government far from being arbitrary or capricious was not only right but proper. This was hardly a case in which any action other than rejecting the app!ication for rep vision was called for and a detailed order was really not required because after all the Central Government was merely approving the action taken in the case by the State Gavernment, which stood completely vindicated. [108 B.c]\n\nThe Mineral Concession Rules make it incumbent on the Central Government to obtain the comments of the State Government upon the application for revision and cast a duty on the Central Gov G ernment to afford an opportunity to the applicant to make representations in respect of the commenL' of the State Government. This procedure was correctly followed and the Central Government thus had a detailed discussion of the pros and cons of the case before it\n\n[107 G].\n\nH11rinaaar Sugar Mills Ltd. v. Shvam Sundar Jhunjhunwala,[19621 2 S.C.R 339, Madh11a Pradesh Industries Ltd. v. Union of India. (1966] J.S.C.R. 466 and Aluminium Corporation of India r, td. v. Union of India and Ors., C.A. No. 635/64, dated 2~1965] referred to.\n\n. '\n\nNANDRAM HUNATRAM v. TTNIO\" (!lirlayatul!ah, J.) 105\n\nThe firm did not fuM\\I its obhgations under the lease and, whatever the reason, it was guilty of voluntary intermission in the working of the colliery and of endangering it by neglect. This entitled the State Government to step in and determine the lease under the terms of the lease and the provisions of the Mineral Concession Rules. [107 C-D].\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 257 of 1964.\n\nAppeal by special leave from the judgment and order dated February 19, 1963 of the Government of India, Ministry of Mines and Fuel, New Delhi on an application for review under rule 54 of the Mineral Concession Rules 1960.\n\nS. N. Andley, Ramesliwar Nath, P. L. Vohra and Mahinder Narain, for the appellant.\n\nC. K. Daphtary, Attorney-General, R. Ganapathy Iyer and B. R. G. K. Achar, for respondent No. I.\n\nR. N. Sachthey, for respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nHidayatullah, J. The appellant Messrs. Nandram Hunatram of Calcutta, a firm co:isisting of four partners including one Kishan Lal Aggarwal, held a mining lease for coal in respect of Handidhua Colliery for a period of 30 years commencing on April 6, 1959. Under Part VII of the lease, which contained the covenants of the lessee, the firm had undertaken to commence mining operations within one year from the date of the execution of the lease and then to continue the work of searching and winning minerals without voluntary intermission in a skilful and workman-like-manner. The firm had appointed one M. L. Goel as the Manager and Kishan Lal Aggarwal as the occupier of the colliery. It appears (and in fact it is not denied) that the partners fell out among themselves and 2s none of them was willing to spend money on the colliery, work deteriorated and came to a standstill in May 1962. Goel reported to the State Government that the wages of the labourers had not been paid for weeks, that work had stopped at the colliery and that even the essential services were not being maintained owing to non-payment of wages.\n\nHe wrote to the firm and Government early in the first week of May, bringing to their notice that the colliery was in danger of being flooded if the essential services stopped working. On May 9, 1962 the essential services stopped working as their wages had not been paid for several weeks. The colliery began to get flooded when the pumps stopped and it was apprehended that within the next few honrs the pumps would be drowned and the cdlliery\n\nlost. Government, however, stepped in and made a promise to the essential workmen that their wages would be paid and this saved the colliery. On May 14, the Chief Inspector of Mines was informed by Kishan Lal Aggarwal that he was restrained by the other L, S5CSI-9( a)\n\n81JPREMB COURT REPORTS I 19fi!j) 8UPP. o.C.R.\n\npartners af the fim1 from making pa)ment for running expenses A\n\nof the colliery and that he was not in a position to perform his duties as an occupier. He accordingly resigned his office. Goel also resigned and on May 16, 1962 the Subdivisional Officer, Talchar informed Government that the situation had become very alarming and that some action was absolutely necessary. Government there- B upon gave a notice on May 19, 1962 asking the firm to remedy the defect within sixty days of the receipt of the notice failing which Government threatened to take over the colliery from the firm. As the firm did nothing to remove the defects and did not request for extension of time, Government took over the cr-lliery and terminated the lease.\n\nThe firm thereupon filed an application for revision before the C Central Government under Rule 54 of the Mineral Concession Rules 1960. The Central Government asked for the comments of the State Government on the application and invited the firm to make its own comments upon the reply of the State Government.\n\nTaking the entire matter into consideration the Central Government by order, Febiuary 19, 1963, rejected the application for revision. The present appeal is against the order of the Central Gov- D ernment by special leave of this Court.\n\nIt was admitted in the application for revision and it is not denied before us that the partners were quarrelling among themselves and the work at the colliery had therefore stopped. It is admitted that the wages of the labourers were not paid for about five weeks before Government sent its notice on May 19, 1962. It is E further admitted that the essential services hld also stopped working and that but for the timely action oo the Government, the colliery would have been flooded in a matter of hours and probably rendered unworkable till dewatered. With this background in mind we have to consider the objections of the firm to the order of the Central Government in the first instance and of the State Government in the final analysis.\n\nClause (3) of Part VII of the lease is one of the covenants by the lessee and under it the lessee undertook to continue work, without voluntary intermission. in a skilful and workman-like-manner.\n\nUnder els. (i) to (x) of Rule 41 of the Mineral Concession Rules. 1949 and under Rule 27(5) of the Mineral Concession Rules, 1960 power is conferred on the State Government to require the lessee G by notice to remove a breach within 60 days of the receipt of notice and in default to determine the lease and for.feit the whole ex part of the security in deposit. Under Ru!e 27(J)(f) the lc, sec is also required to conduct operations in a proper. skilful and workmanlike-manner. It is abvious that there was a breach by the lessee of the covenants and the Mineral Concession Rules when the firm H stopped working the colliery. Even if the firm did not order the\n\nstoppai:e of the work at the colliery it is clear from the complaint!\n\nNA~DRAM m; NATRAM v. UNI0N (Hidayalullah, J.) 107\n\nof Goel and Kishan Lal Aggarwal that no payment was being made to the labourers and they stopped work. On record there are many telegrams and letters sent by the Workers' Association to Government complaining of the failure of the firm to pay their wages for weeks. It is thus clear that action was absolutely necessary to save the colliery from being ruined. It is contended, however, that the wages were paid in full on the 17th of July but that obviously cannot do away with voluntary intermission which had already taken place for a few weeks. The firm in its representation to the Central Government said that it had plans to raise as much as 240,000 tons of coal per year but their performance shows that in April, 1962 they had raised less than 2,000 tons and nothing in May, June and July. In these circumstances, there is no merit whatever in the submission of the firm that the action by the State Government was arbitrary and high-handed. It is plain that the firm did not fulfil its obligations under the lease and, whatever the reasooi., it was guilty of voluntary intermission in the working of the colliery and of endangering it by neglect. This entitled the State Government lo step in and determine the lease under the terms of the lease and the provisions of the Mineral Concession Rules.\n\nIt is, however, argued before us that the Central Government did not give a hearing to the firm and also did not give any reasons in its order dismissing the application for revision. Reliance is placed upon two recent decisions of this Court which, following the earlier decision reported in Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwa/a(') have laid down that Government should give reasons when it performs quasi-judicial functions such as hearin~ appeals and revisions. The two cases are Madhya Pradesh Industries Ltd. v. Union of India and Ors.(') and Aluminium Corporation of India Ltd. v. Union of India and Ors.(') In Harinagar Sugar Mills(') the order was reversed on the ground that reasons for the decision should have appeared. In the Aluminium case there was dispute as to how much scrap was remelted and Government gave its decision on a report received behind the back of the aggrieved party again without stating why a part of the assessee's case was rejected. In the Madhya Pradesh Industries case it was pointed out that an order affirming an earlier decision need not fail because it does not repeat the same reasons over again.\n\nThe Mineral Concession Rules make it incumbent on the Central Government to obtain the comments of the State Government upon the application for revision and cast a duty on the Central Government to afford an opportunity to the applicant to make representations in respect of the comments of the State Government. This procedure was correctly followed and the Central Government thus had a detailed discussion of the pros and cons of the case before it. The facts in the case were quite clear and spoke\n\n(') (1962] 2 S.C.R. 330.\n\nI') (196f>] J S.C.R, 466.\n\n( 3) C.A. o. 635 of 1964decitl!O'd on September 23, 1065.\n\n108 SUl'REMF. COURT lt!!:PORTS [196Gj 8Ul'P. 8, C, R.\n\nfor themselves. The belated attempt to pay the back wages of the workmen did not undo the voluntary intermission for a significantly long period and did not wipe off the dereliction on the part of the finn by which the existence of the colliery was gravely endangered. The documents on the record quite clearly establish that the colliery was being flooded as the .es•ential services had stopped functioning and but for the timely intervention of the State Government the colliery would have been lost. In these circumstances. it is quite clear that the action of the State Government was not only right but proper and this is hardly a case in which any action other than rejecting the application for revision was called for and a detailed order was really not required because after all the Central Government was merely approving of the action taken in the case by the State Government. which stood completely viPc; icated. The order of the Central Government is clearly sustainable on the material and it is not said that anything has been withheld from us.\n\nThe action of the State Government far from being arbitrary or capricious was perhaps the only one to take and all that the Central Government has done is to approve of it.\n\nThe appeal fails and is dismissed with costs.\n\nAppeal dismissed.", "total_entities": 11, "entities": [{"text": "MIS. NANDRAM HUNATRAM, CALCUTTA", "label": "PETITIONER", "start_char": 0, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "M/S. NANDRAM HUNATRAM, CALCUTTA", "offset_not_found": false}}, {"text": "UNION OF INDIA & ANR", "label": "RESPONDENT", "start_char": 33, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ANR", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 94, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 108, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "M. SHELAT, JJ.", "label": "JUDGE", "start_char": 132, "end_char": 146, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT", "offset_not_found": false}}, {"text": "Procedure for passing order-Mineral Concession Rules, 1960", "label": "STATUTE", "start_char": 277, "end_char": 335, "source": "regex", "metadata": {}}, {"text": "Mineral Concession Rules 1960", "label": "STATUTE", "start_char": 3506, "end_char": 3535, "source": "regex", "metadata": {}}, {"text": "S5C", "label": "PROVISION", "start_char": 5632, "end_char": 5635, "source": "regex", "metadata": {"statute": null}}, {"text": "Mineral Concession Rules 1960", "label": "STATUTE", "start_char": 6539, "end_char": 6568, "source": "regex", "metadata": {}}, {"text": "Mineral Concession Rules, 1960", "label": "STATUTE", "start_char": 8024, "end_char": 8054, "source": "regex", "metadata": {}}, {"text": "(1962] 2 S.C.R. 330", "label": "CASE_CITATION", "start_char": 11685, "end_char": 11704, "source": "regex", "metadata": {}}]}
{"document_id": "1966_1_109_113_EN", "year": 1966, "text": "• A '\n\nGYASI RAM\n\nBRIJ BHUSHAN DAS AND ORS.\n\nMarch 30, 1966\n\n[K. N. WANCHOO, J.C. SHAH AND S.M. SIKRI, JJ.]\n\nCode of Civi! Procedure (Act 5 of 1908) O.XXXIV, r. 7(l)(c)\n\n(i) and (ii)-\"Amount adjudged in respect of subsequent costs, charges, expenses and interests\"-Scope of.\n\nA preliminary decree was passed in the appellant's suit for redemption of a mortgage. The decree specified the amoun.ts due as principal and interest, provided for payment of future mterest at 3% from the date of decree till date of realisation, and payment of the amount due by a certain date. It also provided that, if payment was made by that date, a final decree would be passed in favour of the appellant, but that, if the payment was not so made, the respondent would be entitled to apply for a final decree for foreclosure. The appellant appealed against the preliminary decree to the High Court and applied for stay of the order requiring him to deposit the decretal amount within the date fixed by the trial court, and the High Court granted stay on his undertaking to pay 9% interest instead of 3%, during the period of stay. Subsequently, the High Court dismis- Sed the appeal and confirmed the preliminary decree, but, the additional amount due for the period of stay on account of the undertaking, was not included by the High Court in the preliminary decree.\n\nThe appellant then applied for a final decree in his favour, after depositing a sum which was more than the amount to be deposited when calculated according to the preliminary decree, but was less than the amount when circulated according to the condition imposed by the High Court in its stay order. The trial Court however directed that a final decree for foreclosure in favour of the respondent be drawn up, On appeal, the lower appellate court ordered that a final decree be drawn up in favour of the appellant. In second appeal, the High Court took the view that the appellant had to deposit the entire amount due on the date of the deposit, as per its direction in the stay order, and as them was a shortaJge on the date of depositthough the shortage was made up after the judgment of the lower appellate court-onlv a final decree for foreclosure could be passed in the respondent's favour.\n\nIn appeal to this Court, HELD: The appellant was entitled to a final decree.\n\nIn order that a final deree may be passed in favour of the •Ppellant. he had to carry out before a final decree is passed, the terms of the preliminary decree and to pay \"the amount adjudged due in respect of the subsequent costs, charges, expenses and interests\" under O.XXXIV, r. 7(1) (c) (i) and (ii) of the Civil Procedure Code.\n\nThe appellant had carried out the terms of that decree by the deposit made by him and he had nothing to pay on account of $Ubsequent charges. costs, expenses and interest, because. the extra interest of 6% was not made a part of the decree, and it could not come within the \\Vords \"in respect of subsequent costs, charges, expenses and in terests.\" as it arose out of an independent order of the High Court\n\nHO 8t'PREME COURT Rf.PORTS\n\nJ.1966] \"1'1'1'. H.~.K.\n\nand was only payable on account of the undertakmg for purposes of\n\nA • stay. Further, .such subsequent costs. charges, expenses and interest have to be adjudged before the mortgagor is asked to deposit the amount. As regards the appellant's undertaking in the stay matter the court could insist on his honouring it before the final decree is passed. (112 F-113 CJ.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 959 of B 1964.\n\nAppeal by special leave from the judgment and decree dated March 16, 1963 of the Madhya Pradesh High Court in Second Appeal No. 86 of 1962.\n\nS. V. Gupte, So/iritor-General, Rameshwar Nath. S. N. A11dley P. L. Volzra and Mahinde1 .'Varain. for the appellant. c A. K. Sen and R. Gopalakrishna11, for respondent no. I.\n\nThe Judgment of the Court was delivered by Wanchoo, J. This is an appeal by special leave against the judgment of the Madhya Pradesh High Cmirt and arises in the following circumstances. The appellant brought a suit for redemption of certain mortgaged property. A preliminary decree was pass- D ed in the suit on February 3, 1954. It specified the amount due as principal and the amount due as interest upto a certain date. It also provided that future interest was to be paid at three per cent per annum on a certain sum from that date till the date of realisation.\n\nParties were to bear their own costs. Further the decree provided for payment of the amount due on or bofore July 15, 1964 or within such time as might be extended. It also provided that if payment E was made within the time limited under 0.XXXIV r. 7(1)(c) of the Code of Civil Procedure, final decree would be passed. In the alternative it was provided that if the deposit was not made, the respondent would be entitled to apply for passing of a final decree praying that the right of the appellant to redeem the mortgaged property be debarred.\n\nThere were appeals by both parties from this preliminary decree to the High Court. In the meantime the appellant had prayed for extension of time and the trial court had extended time for making payment upto August 15, 1954. About the same time, the appellant applied to the High Court praying that the arder requiring him to deposit the decretal amount by August 15, 1954 be stayed till the disposal of the appeal by the High Court. On this appli- G cation, the High Court passed an order on July 26, 1954. This order provided that if the appellant gave an undertaking to pay nine per cent per annum interest instead of three per cent per annum during the period of stay, the order of the trial court directing the appellant to deposit the decretal amount by August 15, 1954 would be stayed. Thereupon the appellant gave an undertaking to the trial H court on August 7. 1954 that he would pay nine per cent per annum simple interest instead of three per cent per annum cluring the period\n\nGYASI RAM v. BR!J BHUSHAX DAS (Wrmc.lwo, .J.) 111\n\nof stay. In consequence the order of stay passed by the High Court came into force and no deposit was made by August 15, 1954. On October 16, 1958, the High Court dismissed both the appeals and the preliminary decree stood confirmed.\n\nOn March 20, 1959, the appellant applied to the trial court for permission to deposit the sum of Rs. 42,204/5/-. On March 27, 1959, the trial court permitted the appellant to deposit the amount but made it clear that this did not amount to any extension of time for making the deposit, and the question whether the deposit was made within time would be decided after hearing both parties. Notice was also issued to the respondent on the same date.\n\nOn March 28, 1959, the appellant deposited the amount. On April 8, 1959 the respondent appeared and objected that the amount due was not Rs. 42,204 / 5 /- but Rs. 46,882 / 6 / 6 and therefore the deposit was short by a sum over Rs. 4,000 /-. Thereupon the appellant deposited a further sum of Rs. 4,590/- on April 9,1959 and prayed for a final decree in his favour. The trial court held on April 18, 1959 that the deposit was made beyond time and therefore directed that a final decree for foreclosure in favour of the respondent be drawn up. The appellant then went in appeal to the District Judge. The Additional District Judge who heard the appeal rejected the memorandum of appeal as insufficiently stamped. The appellant then filed a revision before the High Court. The High Court allowed the revision on July 22, 1961 and remanded the appeal to the Additional District Judge for decision on the merits. On March 23, 1962, the Additional District Judge allowed the appeal holding on the basis of O.XXXIV, r. 8 that as the amount had been paid before the final decree was passed, it was within time. Consequently the Additianal District Judge ordered that a final decree be drawn up in favour of the appellant. It may be noticed that it was also contended before the Additional District Judge that the amount deposited was short by Rs. 8811 / •.\n\nThe Additional District Judge pointed out that this was not made a ground of attack in the trial court. In any case he held that the amount which had to be deposited was as required by the preliminary decree and that the same had certainly been deposited.\n\nWe may add that it is not in dispute between the parties that if the amount to be deposited is to be in accordance with the preliminary decree, the appellant has deposited that amount, rather more. The shortage has occurred because for the period of stay the High Court had ordered the payment of an extra six per cent per annum interest and it is with respect to that interest that the shortage has occurred.\n\nThe respondent then went in second appeal to the High Court.\n\nThe High Court agreed with the Additional District Judge and H held that in view of O.XXXIV r. 8(1) the deposit made on April 9, 1959 before the final decree was passed on April 18, 1959 was within time, even thougti the money might have been deposited\n\n112 Sl!PR~.'IE OOUllT REPORTS (1966] BUPP. e.c.R.\n\nafter the time fixed under O.XXXIV r. 7. But the High Court also A took the view that the mortgagor-appellant had to depoi; it the entire amount due on the date of lhe deposit and as there was a shortage of Rs. 88/1 /-, the entire amount had not been deposited and in consequence no final dr.cree could be passed in favoor df the appellant. In the result the High Court set aside the order of B the Additional District Judge and retored the order of the trial .'!'( court passing a decree for foreclosure in favour of the respondent.\n\nThereupon the appellant obtained special leave from this Court, and that is how the matler has come before us.\n\nThe only question raised on behalf of the appellant is that he had deposited the amount which was strictly due under the pre- C liminary decree and something more. The shortage was only on account of the sum due as a result of the stay order passed by the High Court by which he was required to pay six per cent per annum more as interest for the duration of the stay. It is urged that this amount could not be taken into account in considering the ques-\n\n.J._ tion whether the appellant had deposited the entire amount due 7 under the preliminary decree. We are of opinion that there: fa D force in this contention and the appeal must succeed. Under O.XXXIV, r. 8(1) the mortgagor can deposit all amounts due under 0.XXXIV r. 7(1) before the final decree debarring him from all rights to redeem is passed. Order XXXIV r. 7(1) Jays down what a preliminary decree should contain and we are in the pre>-\n\nsent case concerned with els. (b) and (c) thereof. In this case the preliminary decree had declared the amount due upto a certain date towards principal and interest and had also provide for three per F. cent per annum interest on a certain sum from that date and had directed as required by cl. (c) of 0.XXXIV r. 7(1) that if the mortgagor-plaintiff paid in court the amount found before a certain date a final decree in his favour would be passed. The preliminary decree also laid down that if payment was not made within the time fixed a final decree for foreclosure in favour of the F defendant-mortgagee would be passed. Now under O.XXXIV ' r. 711Hc)(i) and (ii) what the appellant had to deposit was the amount found under the preliminary decree and also \"the amount adjudged due in respect of subsequent costs, charges. expenses and ' interests\". It is not in dispute. as we have already indicated tha~\n\nthe appellant paid the amount found due under the preliminary decree and also the subsequent interest as provided in the decree.\n\nG Only there was a shortage in the extra amount he had undertaken to pay as extra interest at the rate of six per cent per annum for the period of stay. The question is whether this amount can be said to be within the words \"the amount adjudged due in respect of subsequent costs. charges, expenses and interests\". We are of opinion that this extra amount which was to be paid on account H of the undertaking of the appellant for the purpose of stay cannot ccme within the wards \"in respect of subsequent costs. charges,\n\nGYASI RAM v. BRIJ BllUSHAN DA~ (Wanchoo, J.) Jl3\n\nexpenses and interests\". It is not in dispute that the High Court dismissed the appeal of the appellant in 1958 and confirmed the preliminary decree and that the amount due on account of the undertaking to pay extra interest at the rate of six per cent per annum for the period of stay was not included by the High Court in the preliminary decree. This amount arose out of an independent order of stay and though the appellant was bound to pay it in view of his undertaking. it was not made a part of the amount due under the preliminary decree. Nor can it be said that it was due in respect of subsequent costs, charges, expenses and interests.\n\nBesides, such subsequent costs, charges. expenses and interests have to be ad judged before the mortgagor is asked to deposit the a.mount and it is not in dispute that no adjudgement as to any subsequent costs, charges, expenses and interests was .made. So in order that a final decree may be passed in favour of the appellant, he had to carry out the terms of the preliminary decree and it is not in dispute that he had carried out the ter.ms of that decree, and he had to pay nothing on account of subsequent charges, costs, expenses and interests, for nothing was adjudged in respect of these. Nor as we have said already can the amount due as extra interest on the basis of the undertaking given by the appellant for the period of stay be considered to be of the nature of subsequent costs, charges, expenses and interests mentioned in O.XXXIV r. 7(1)(c)(i) and (ii).\n\nIt is however urged that on this view there would be no way to enforce the appellant's undertaking to pay extra interest for the period of stay. We do not think so. It would in our opinion be in, order for the court to insist befo1e it passed the final decree tha't the appellant honours his undertaking. But that is not to say that this amount due under an independent order of the High Court in connection with stay became part of the amount due under the preliminary decree or could be considered to be \"subsequent costs, :harges., expenses and interests\". We may add that the shortage m questlon was made good by the appellant soon after the order of the. Additional District Judge and long before the judgment of the High Court. As we have come to the conclusioo that this\n\nmount due on account of the undertaking given by the appellant m the matter of stay cannot be taken to be part of the amount due under the preliminary decree. it must be held that the appellant was entitled to a final decree in his favour. We therefore allow the appeal, set aside the order of the High Court and restore the order of the Additional District Judge. The respondent will be entitled to withdraw the amount deposited by the appellant including the amount deposited on April 21. 1962 on the conditions in that order. In the circumstances however we pass no order as to costs throughout.\n\nAppeal a/llowed.", "total_entities": 5, "entities": [{"text": "RAM\n\nBRIJ BHUSHAN DAS AND ORS", "label": "RESPONDENT", "start_char": 13, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "BRIJ BHUSHAN DAS AND ORS", "offset_not_found": false}}, {"text": "K. N. WANCHOO, J", "label": "JUDGE", "start_char": 62, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 79, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S.M. SIKRI, JJ.", "label": "JUDGE", "start_char": 91, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 4696, "end_char": 4723, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1966_1_114_117_EN", "year": 1966, "text": "1~4\n\nBISWAMBAR ROY 1\n\nGIRINDRA,\", KUMAR P~UL\n\nMarch 30, 1966\n\n[K. N. WANCHOO,.l_ C. SHAH ANDS. M. S!KRI, JJ.]\n\nThe NonGl!lricu!tura! Urban Areas-Tenancy Act, Assam Act 12 of 1955 s. 5(1) (a)-Tenant of Land builtling structures within prescribed ver1.d-Letting out structures--2-Protectioh. from eviction under section whether available to tenant of land-Construction whether should -be for his own use. ' C\n\nCertain structures for residential \"and business purposes were - raised by a tenant of land inthe term of Si.Jchar' in Assam. Theland-\n\nJortl secured a .decree for ejectment against the tenant. During the pendency of the appeal the Non-Agricultural Urban Areas Tenancy Act, Assain Act 12 of 1955 was brdught into force. The tenant claimed .L protection froin eviction under s. 3 of the Act. The Subordinate Judge I field that the tenant had acquired under s. 5(l)(a) of the Act the right of a permanent tenant since he had constructed within the pres- D\n\n1cribed period structure~ for residential or business purposes. He accordingly dismissed the suit. The High Court in further appeal held that the protection under s. 5(1)(a) was not available to the tenant since' he had let out to tenants th<> buildings constructed on the land.\n\nThe tenant, by special leave, appealed to this Court. ·\n\nHELD: (i) The section mee'ly requires that the permanent structure must' be one adapted for iesldential or business purposes. If the siru, tur~ i~ not adapated to such \\)urposes, the prot\"}'tion of's. 5(1)(a') 'Will not be .available. To read the expr€!>sion ·\"permanent structur:e on the land o.f the tenancy for residential or business purposes\" as meaning petmanent structure on the land of the tenancy construc- d by the tenant for his own residentjal or busines.s purposes is to a\\ld words which are not found in the section. [116 HJ.\n\n(ii) Protection is conferred in terms by s. 5 upon the tenant of the land and not upon the tenant of the buildings constructed upon the land. By letting out the structures'the'tenant of land does not loS<> the protection given by the statute .. [117 CJ.,\n\nCIVIL APPELLATE JURISDICTION: .Civil Appeal No. 891 of . 1963. .\n\nAppeal by special leitve from the judgment and decree dated June 26, 1959 of the Assam Higli Court in Letter Patent Appeal \"Nb.- I of 1959. .\n\nr,~ C. Chatter.jee and D •. N. Mukherjee. for the appellants.\n\nSarjqo Prasad and K. P. Gupta, foI' respondents.\n\nThe Jiidgment of the Court was delivered by\n\n~, .\n\nShah, J.\n\nBiswambar Roy-predecessor-interest of the H appellants-was granted on Februarv 20, 1928, a lease for ten\n\nBISWAMllAR 11.\n\nGl&INDHA KUMAR (8/wh, J.) 115\n\nyears 1335 B.S. to 1344 B.S. at an annual rental of Rs. 75/- in respect of a plot of land, part of Dag No. 3615 in the town of Silchar, District Cachar in the State of Assam. Biswambar Roy constructed on the land, buildings, some for residential use, and others as warehouses. On the expiry of the period of the original lease, Biswambar Roy obtained a fresh lease in respect of a part of the land for ten years-Baisakh 1345 B.S. to Chaitra 1354 B.S. -at an annual rental of Rs. 70 /- under an instrument dated February 22, 1938.\n\nThe respondents purchased the interest of the landlds :in the land and instituted on August 3. 1951 an action in the Court of the Sadar Munsiff, Silchar against Biswambar Roy for a decree for vacant possession of the land. The suit was decreed by the Munsiff. Biswambar Roy appealed to the Subordinate Judge, Silchar. During the pendency of the appeal, the Non-1gricultural Urban Areas Tenancy Act 12 of 1955 enacted by the Assam Legislature was brought into force. Biswambar Roy claimed prctection from eviction under s. 3 of Act 12 of 1955. The Subordinate Judge held that Biswambar Roy had acquired under s. 5(1)(a) of the Act the rights of a permanent tenant. since he had constructed within the period prescribed permanent structures for residential or business purposes. He accordingly reversed the decree passed by the Trial Court and dismissed the suit. Agalnst that decree, an appeal was preferred to the High Court of Assam. Deka, .T., held that Biswambar Roy could not claim the protection of s. 5(1)\n\n(a) of the Act, since he hacl let out to tenants the buildings constructed on the land. In the view of the learned Judge, by the use of the expression \"for residential br business purposes\" in s. 5(1)(a) it is intended that buildings constructed by the tenant should be utilized by the tenant himself for his own residence or for carrying on business and that it is not the intention of the Legislature that third persons should be protected by s. 5 from eviction from those structures. An appeal under the Letters Patent from that judgment was heard by C. P. Sinha, C. J., and Mehrotra, J. The learned Judges differed. Sinha, C. J., was of the view that permanent structures constructed by Biswambar Roy conformed to the description \"residential or business purposes\" and Biswambar Roy became under Act 12 of 1955 a permanent tenant thereof and was not liable to be evicted except for non-payment of rent. With that view Mehrotra, J., did not agree. He held that a tenant who obtains land on lease for erecting a structure thereon not for his own residential or business purposes but for letting O'Ut to others does not build \"a permanent structure on the land of the tenancy for residential or business purposes\". and may not claim protection under s. 5(l)(a). Since there was no majority concurring in the judgment agreeing or reversing the decree appealed from, under s. 98(2) of the Code of Civil Procedure the appeal was ordered tb be dismissed. Against the decree passed bv the High Court. with special leave, this appeal i< rreferred. -\n\n116 [l966) 8UPP. 8, C'.B, ~\n\nThis Court has held that s. 5 of Assam Act 12 of 1955 has A retrospective operation: Refique11nessa v. Lal Bahadur Che1ri & Others,(') and the only question to be determined in this appeal is whether a tenant qualifies for protection under s. 5 of the Act only after building permanent structures on the land of the tenancy if he occupies them for his own residential or business purposes. The material part of the section reods: B\n\n\"(!) Notwithstanding anything in any contract or in any law for the time being in force-\n\n(a) Where under the terms of a contract entered into between a landlord and his tenant whether before ar after the commencement of this Act, a tenant is entitled to build. and has in pursuance C of such terms actually built within the period of five years from the date of such contract. a permanent structure on the land of the tenancy for residential or business purposes. or where a tenant not being so entitled to build, has actually built any such structure on the land of the ten- D ancy for any af the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landloird from the tenancy except on the ground of non-payment of rent;\"\n\nProtection under the first part of s. 5(1)(a) may be claimed by a tenant if three conditions co-exist: (i) under the terms of the con- Jil tract of tenancy the tenant is entitled to build on the land of the tenancy; (ii) that pursuant to such liberty, he has actually buiilt within the period of five years from the date of the contract a permanent structure on the land of the tenancy; and (iii) that the permanent structure is for residential or business purposes. The first two conditions are fulfilled in this case. But the learned Judges of the High Court dLagreed on the fulfilment of the third F condition: they differed as to the true meaning of the exp<essinn\n\n\"a permanent structure . . . . for residential or business purposes\". In the view of Sinha, C. J., under the Act the character of the structure is determinative and not personal use by the tenant. Mehrotra, J ., held that the permanent structure must be for residential or business purposes of the tenant. We are unable to agree with the view taken by Mehrotra, J ., because the Legislature G has not. in conferring rights of permanent tenancy, either expressly or by implicaticn enacted any such qualification as is suggested by the learned Judge. The section merely requires that the permanent structure must be one adapted for residential or business purposes.\n\nIf the structure is not adapted to such purposes, the protection of s. 5(1)(a) will not be available. To read the expression \"permanent B ------------\n\n(') [100.J 6 S.C.R. 87A.\n\nI I\n\nBlSWAMBAR V. GIR!NDRA. KUMAR (Shah, J.) 117\n\nstructure on the land of the tenancy for residential or business purposes\" as meaning permanent structure on the land of the tenancy constructed by the tenant for his own residential or business purposes is to add words which are not found in the section.\n\nIt was urged on behalf of the landlords that it could not have been the intention of the Legislature to confer by s. 5(l)(a) protection upon sub-tenants. It was said that a sub-tenant is not a tenant within the meaning of s. 3(g) of the Act, and he cannot claim protection from eviction under s. 5(l)(a). In our judgment, the argument is wholly misconceived. Protection is conferred in terms by s. 5 upon the tenant of the land and not upon the tenant of the buildings constructed upon the land. It is not necessary in this case to consider whether by virtue of the definition of \"tenant\" in s. 3(g) of the Act which includes a person who derives his title from a tanant, a sub-tenant of the land is entitled to protection of s. 5(1)(a). In the present case, the tenant of the land has claimed protection. By merely letting the premises cDnstructed on the land obtained by him on lease, the tenant does not cease to be in possession of the land. The relation between the landlord and the tenant of the land continues to subsist until it is lawfully determined. Possession of the land ubtained by the tenant remains his even after he has let oi; t the building constructed by him, and a building constructed by the tenant for use as residential or business purposes does not cease to be one for residential or business purposes, when it is let out.\n\nWe therefore agree with the view taken by Sinha, C. J., that the protection of s. 5(1)(a) extends to a tenant who has constructed on the land obtained on lease permanent structures which are adapted for use for residential or business purposes and by letting out the structures the tenant does not forfeit the protection conferred by the statute.\n\nThe appeal is herefore allowed and the decree passed by the High Court vacated and the plaintiffs' suit dismissed. The appellants who are the representatives of the tenant will be entitled to their costs in this Court. There will be no order as to costs in the High Court.\n\nAppeal allowed.", "total_entities": 32, "entities": [{"text": "4\n\nBISWAMBAR ROY", "label": "PETITIONER", "start_char": 2, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "BISWAMBAR ROY", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 63, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "l_ C. SHAH", "label": "JUDGE", "start_char": 78, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "Urban Areas-Tenancy Act", "label": "STATUTE", "start_char": 133, "end_char": 156, "source": "regex", "metadata": {}}, {"text": "s. 5(1)", "label": "PROVISION", "start_char": 179, "end_char": 186, "source": "regex", "metadata": {"linked_statute_text": "Urban Areas-Tenancy Act", "statute": "Urban Areas-Tenancy Act"}}, {"text": "During the pendency of the appeal the Non-Agricultural Urban Areas Tenancy Act", "label": "STATUTE", "start_char": 602, "end_char": 680, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 782, "end_char": 786, "source": "regex", "metadata": {"linked_statute_text": "During the pendency of the appeal the Non-Agricultural Urban Areas Tenancy Act", "statute": "During the pendency of the appeal the Non-Agricultural Urban Areas Tenancy Act"}}, {"text": "s. 5(l)(a)", "label": "PROVISION", "start_char": 864, "end_char": 874, "source": "regex", "metadata": {"linked_statute_text": "During the pendency of the appeal the Non-Agricultural Urban Areas Tenancy Act", "statute": "During the pendency of the appeal the Non-Agricultural Urban Areas Tenancy Act"}}, {"text": "s. 5(1)(a)", "label": "PROVISION", "start_char": 1126, "end_char": 1136, "source": "regex", "metadata": {"linked_statute_text": "During the pendency of the appeal the Non-Agricultural Urban Areas Tenancy Act", "statute": "During the pendency of the appeal the Non-Agricultural Urban Areas Tenancy Act"}}, {"text": "s. 5(1)(a')", "label": "PROVISION", "start_char": 1498, "end_char": 1509, "source": "regex", "metadata": {"linked_statute_text": "During the pendency of the appeal the Non-Agricultural Urban Areas Tenancy Act", "statute": "During the pendency of the appeal the Non-Agricultural Urban Areas Tenancy Act"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 1882, "end_char": 1886, "source": "regex", "metadata": {"statute": null}}, {"text": "Urban Areas Tenancy Act", "label": "STATUTE", "start_char": 3538, "end_char": 3561, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3683, "end_char": 3687, "source": "regex", "metadata": {"linked_statute_text": "Urban Areas Tenancy Act", "statute": "Urban Areas Tenancy Act"}}, {"text": "s. 5(1)(a)", "label": "PROVISION", "start_char": 3772, "end_char": 3782, "source": "regex", "metadata": {"linked_statute_text": "Urban Areas Tenancy Act", "statute": "Urban Areas Tenancy Act"}}, {"text": "s. 5(1)", "label": "PROVISION", "start_char": 4168, "end_char": 4175, "source": "regex", "metadata": {"linked_statute_text": "Urban Areas Tenancy Act", "statute": "Urban Areas Tenancy Act"}}, {"text": "s. 5(1)(a)", "label": "PROVISION", "start_char": 4370, "end_char": 4380, "source": "regex", "metadata": {"linked_statute_text": "Urban Areas Tenancy Act", "statute": "Urban Areas Tenancy Act"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 4622, "end_char": 4626, "source": "regex", "metadata": {"statute": null}}, {"text": "Biswambar Roy became under Act", "label": "STATUTE", "start_char": 4950, "end_char": 4980, "source": "regex", "metadata": {}}, {"text": "s. 5(l)(a)", "label": "PROVISION", "start_char": 5428, "end_char": 5438, "source": "regex", "metadata": {"linked_statute_text": "Biswambar Roy became under Act", "statute": "Biswambar Roy became under Act"}}, {"text": "s. 98(2)", "label": "PROVISION", "start_char": 5549, "end_char": 5557, "source": "regex", "metadata": {"linked_statute_text": "Biswambar Roy became under Act", "statute": "Biswambar Roy became under Act"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 5561, "end_char": 5588, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5", "label": "PROVISION", "start_char": 5777, "end_char": 5781, "source": "regex", "metadata": {"linked_statute_text": "Biswambar Roy became under Act", "statute": "Biswambar Roy became under Act"}}, {"text": "s. 5", "label": 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"metadata": {"statute": null}}, {"text": "s. 5(1)(a)", "label": "PROVISION", "start_char": 9515, "end_char": 9525, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(1)(a)", "label": "PROVISION", "start_char": 10217, "end_char": 10227, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_1_118_122_EN", "year": 1966, "text": "JJS '.\n\nTillRUNAGAR PANCHAYAT\n\nv .\n\n. MADURAI CO-OPERATIVE\" HOUSE\n\nCONSTRUCTION ·\n\nSOCIETY\n\n. March 31, 1966\n\n. (K. SUBBA RAO AND V. RAMASWAMI, JJ.]\n\nMadras Village Panchayats Act (10 of 1950). s. 5~Scope of.\n\nThe respondent-Society formed a housing colony, laid out pub-. lie roads and set apart public common places for parks, play-grounds, schools, library, hospital and club for . the benefit of. the :members of the colony. The respondent passed a resolution for handing over the roads arid the other common places to the appellant-Panchayat, but later, passed another resolution cancelling it. The appellant, thereupon, filed a suit for an injunction restraining the respondent from obstructing the appellant in the exercise of its statutory. duties in relation to the roads and other common places. The High Court, on appeal, held that the streets and. the roads in the colony alone would vest in the zppellant under the Madras Village Panchayats Act, 1950 and that.· an injunction could be granted only with respect to them, but not, with respect to the other amenities which the respondent had provided for the residents of the colony. . ·\n\nIn appeal to this Court, it was contended that th~ amenities excluded would also vest in the appellant under s .. 58 \"of the Act, especially because they had been dedicated to the public.\n\nI . - . - •.\n\nHELD: The scope of the section must be confined to communal property and income of the Panchayat which, by custom, belong to the villagers in common, or, has been administered for their benefit as a matter of custom. Therefore, the section cannot be extended to amenities such as parks, play-grounds etc. provided by the respondent for the benefit of the members of the colony; and dedication is not a relevant_ circumstance in considering its scope and mean ing. [121 E-F; 122 A-BJ. • · . ·\n\nOVIL APPELLATE JURISDICTION: Civil. Appeal No .. 374 of 1965: .. ··· ... •.. i .. · . . Appeal by special' leave from the jdgment and deree dated August 9, 1963 of the Madras High Court in LP.A. No. 45 of 1962. . . - .\n\nA. V. Narayanaswami Iyer and S. Venkatakrishnan, for the appellant.\n\nA. K. Sen, N. Natesan and R. Ganpathy Iyer for the respond ent.\n\nThe Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from\n\nthe judgment and decree of the Madras High Court dated August 9, E 1963 in Letters Patent Appeal No. 45 of 1962.\n\n, t I\n\n. .\n\nTHIRUNAGAR PANCHAYAT v. COOP. HOUSE SOCY. (Ramaswami, J.) 119\n\nA The suit which is the subject-matter of this appeal was filed by the Tirunagar Panchayat, hereinafter called the 'Panchayat', against the Madurai Co-operative House Construction Society (hereinafter called the 'Society') in the District Munsif's Court of Tirumangalam. The Tirunagar Colony has been formed by the Society. The Colony consists of about 300 houses and its total population ex- B ceeds J ,500. At its inception the colony was within the jurisdiction of the Tirupparakundram Panchayat. On February 21, 1955 the Tirunagar colony was excluded from Tirupparankundram Panchayat and was declared as a separate village and was constituted as a separate Panchayat known as Tirunagar Panchayat. In the formation of the colony the Society has laid out and set apart and formed public roads, parks, play grounds and other public common C places. There was a change in the Board of Directctrs of the defendant-Society and as a consequence of this change the Society passed a resolution on July 23, 1956 cancelling its previous resolution handing over the roads, streets and scavenging arrangements to the Panchayat. The Panchayat therefore filed a suit-0.S. 38 of 1957, in the District Munsif's Court of Tirumengalam for an injunction restraining the Society and its servants from obstructing D and intdedr:ig with its lawful exercise of statutory duties relating to the roads and streets in Tirumgar and cleaning of latrines, public and private, lighting the houses and roads and making arrangements for the civic needs of the village of Tirunagar. The Society contested the suit on the ground that the constitution of the Pan chayat was illegal as the provisions of the Madras Village Panchayats Act (Madras Act 10 of 1950), hereinafter to be called the E 'Act', had not been complied with. The Society also contended that the public cannot use the roads or streets as a matter of right, that the entire colony was a closed one and no outsider except the members of the Society had the right to enter the colony and that the Parks, central oval, play grounds and open spaces were the exclusive properties of the Society. The contentions of the Society were all over-ruled by the trial court and a permanent injunction was F granted to the plaintiff-Panchayat, as prayed for. The decision of the trial court was affirmed by the Subordinate Judge of Madurai in A.S. 92 of 1958. The Society took the matter in Second Appeal to the High Court. The appeal was partly allowed by Ramakrishnan, J. who held that the streets and roads in Tirunagar colony alone would vest in the Panchayat and that the injunction passed by the lower appellate court should be confined only to streets and roads G in the colony and should not be extended to any other place like the parks, oval park, play grounds, schools, library or club and such other amenities which the Society had provided for the residents of the colony. The decision cf Ramakrishnan, J. was affirmed by the High Court in Letters Patent Appeal and the injunction granted by the lower courts was accordingly confined to roads and streets H and the cleaning of public and private latrines, and the decree of the lower courts was set aside so far as the injunction relat, d to the parks. play grounds, bus-stand and other public places.\n\nL/S5SCI-!O\n\n120 St:PRE~K COt'RT REPORTS\n\n[J 966] SUPI'.S.O .II,\n\nThe question presented for determination in this appeal is whether there is a statutory vesting in the panchayat of the parks, play grounds, schools, libraries and other public places which the Society provided for its members and whether the Panchayat is entitled to a permanent injunction restraining the Society and its servants in the manner decreed by the trial court.\n\nOn behalf of the appellant reference was made toss. 56 and 58 of the Act relating to vesting of the property in the Panchayat.\n\nSection 56 of the Act reads as follows: -\n\n\"56. (!) All public roads in any village (other than district roads and roads which are classified by the Government as national or State highways), shall vest in the panchayat together with all payments, stones and other materials thereof, all works, materials and other things provided therefore, all sewers. drains, drawings works tunnels and culverts, whether made at the cost of the panchayat fund or otherwise, in, alongside or under such roads, and all works, materials and things appertaining thereto.\n\n..J Section 58 is to the following effect: -\n\nSI I I• •\n\n\"Any property or income which by custom belongs to, or has been administered for the benefit of, the villagers in common, or the holders in common of village land generally or of lands of a particular description or of lands under a particular source of irrigation shall vest in E the panchayat and be admini, tered by it for the benefit of the villagers or holders aforesaid.\"\n\nThe rules framed under the Co-operative Societies Act for the formation of House Building Societies required that when an area is set apart for a residential colony provisions for schools, markets, theatres. hospitals, clubs, religious places etc. should be made in F the layout. Reference was made, on behalf of the appellant, to the layout plan Ex. A-44 for the Tirunagar Housing colony. There is evidence in this case that the Government had assigned to the House\n\nBuiding Society free of cost an area of about 5 acres for the proposed public amenities like schools, markets etc. It was submitted cm behalf bf the appellant that the parks. play grounds. hospitals, schools etc. of the Tirunagar Housing Colony would vest in the Pan- G chayat under s. 58 of the Act. We do not consider that there is any justification for this argument. Under s. 56 of the Act all 'public roads' in any village shall vest in the Panchayat together with al!\n\npavements, stones and other materials thereof. all sewers, drains. drainage works, tunnels and culvert,, whether made at the cost of the panchayat fund or otherwise. Under s. 2(20) of the Act a H 'public road' means \"any street, road, square, court, alley. passage, cart-track, footpath or riding-path, over which the public have a\n\nTHIRUNAGAR PANCHAYAT v. COOP. HOUSE SOOY. (Ramaswami, J.) 121\n\nright of way\". Section 58 of the Act provides for vesting of the communal property in the panchayat. By this section the legislature has provided that any property or income which by custom belongs to the villagers in common, or the holders in common of village land generally or of lands of a particular description shall ves~ in the panchayat. The legislature has further provided m this section that any property or income which by custom has been adinistered for the benefit of the villagers in common or the holders m common of village land generally or of lands of a particular description shall vest in the panchayat and be administered by it for the benefit of the villagers or the holders aforesaid. In enacting s. 58 of the Act the legislature has made a provision for vesting of two kinds of property or income: (]) property or income which by custom belongs to the villagers in common or the holders in common of village land generally or of lands of a particular description, and (2) property or income which has been administered by custom for the benefit of the villagers in common or the holders in common ocf village land generally or of lands of a parficular description. Having regard to the grammatical structure and the context, we are of opinion that the expression \"by custom\" qualifies not only the property or income which belongs to the villagers but also property and income which has been administered for the benefit of the villagers in common. It is manifest that s. 58 provides for the vesting of such property and income to which the viliagers have acquired title as a matter of custom or which has been administered for the benefit of the villagers as a matter of custom. It was argued on behalf of the appellant that if parks or play grounds or markets had been dedicated to the public the Panchayat would acquire title to such properties under s. 58 of the Act. We do not think that dedication is a relevant circumstance in considering the scope and meaning of s. 58 of the Act. In the enactment of this section the legislature did not contemplate that parks, play grounds, schools or temple or hospital dedicated to the public should vest in the pan cha ya t merely by the fact of such dedication. What is required by s. 58 for the purpose of vesting is the proof of custom by which the villagers in common acquire title to any property or income. Vesting of rights takes place under s. 58 if there is proof of customary right Qlf administration of any property or income for the benefit of the villagers in common. Unless therefore there is proof of customary right, the\n\nPanchayat cannot claim title to the property or income ad ministered for the benefit of the villagers in common.\n\nFor example, the Society may have established a library or a social club or a school for the benefit of its members Again, a private individual may have created a trust for the provision of amenities like parks, play grounds and hospitals for the residents of the village. In a case of this description the legal ownership of the Society or of the trustees will not vest in the Panchayat because of the provisions of s. 58 of the Act. It cannot be supposed that such a startling and unjust result was contemplated by the\n\nL/S5SCI-IO(a)\n\n122 s1:rRl'lllB C'Ol; HI' J\\F.POIUS [1966) ScPP s.C.R.\n\nlegislature in enacting s. 58. We are accordingly of the opinion that the scope of s. 58 of the Act must be confined to communal property and income of the panchayat which by custom belongs to the villagers in common or has been administered for their benefit as a matter of custom, and the scope of that section cannot be extended to include parks, play grounds, hospitals, libraries and schools provided by the Society for the benefit of the members of the Tirunagar colony.\n\nFor these reasons we hold that the judgment and decree of the High Court in Letters Patent Appeal No. 45 of 1962 is correct and this appeal must be dismissed with costs.\n\nAppeal dismissed.\n\nA •\n\nB .. -\"·", "total_entities": 27, "entities": [{"text": "TillRUNAGAR PANCHAYAT", "label": "PETITIONER", "start_char": 8, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "THIRUNANGAR PANCHAYAT", "offset_not_found": false}}, {"text": "MADURAI CO-OPERATIVE\" HOUSE\n\nCONSTRUCTION ·\n\nSOCIETY", "label": "RESPONDENT", "start_char": 38, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "MADURAI CO-OPERATIVE HOUSE CONSTRUCTION SOCIETY", "offset_not_found": false}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 113, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 130, "end_char": 147, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "Madras Village Panchayats Act", "label": "STATUTE", "start_char": 150, "end_char": 179, "source": "regex", "metadata": {}}, {"text": "s. 5", "label": "PROVISION", "start_char": 194, "end_char": 198, "source": "regex", "metadata": {"linked_statute_text": "Madras Village Panchayats Act", "statute": "Madras Village Panchayats Act"}}, {"text": "Madras Village Panchayats Act, 1950", "label": "STATUTE", "start_char": 928, "end_char": 963, "source": "regex", "metadata": {}}, {"text": "S. 38", "label": "PROVISION", "start_char": 3652, "end_char": 3657, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 92", "label": "PROVISION", "start_char": 4860, "end_char": 4865, "source": "regex", "metadata": {"statute": null}}, {"text": "S5S", "label": "PROVISION", "start_char": 5783, "end_char": 5786, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 56", "label": "PROVISION", "start_char": 6349, "end_char": 6359, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 58", "label": "PROVISION", "start_char": 6907, "end_char": 6917, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 8090, "end_char": 8095, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 56", "label": "PROVISION", "start_char": 8184, "end_char": 8189, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(20)", "label": "PROVISION", "start_char": 8454, "end_char": 8462, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 58", "label": "PROVISION", "start_char": 8693, "end_char": 8703, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 9399, "end_char": 9404, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 10172, "end_char": 10177, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 10557, "end_char": 10562, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 10674, "end_char": 10679, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 10932, "end_char": 10937, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 11098, "end_char": 11103, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 11818, "end_char": 11823, "source": "regex", "metadata": {"statute": null}}, {"text": "S5S", "label": "PROVISION", "start_char": 11925, "end_char": 11928, "source": "regex", "metadata": {"statute": null}}, {"text": "s1", "label": "PROVISION", "start_char": 11942, "end_char": 11944, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 12018, "end_char": 12023, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 12077, "end_char": 12082, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_1_123_127_EN", "year": 1966, "text": "• A\n\nMRS. VEEDA MENEZES v.\n\nYUSUF KHAN AND ANR.\n\nMarch 31, 1966\n\n[K. N. WANCHOO, J. C. SHAH AND S. M. SIKRI, JJ.] Indian Penal Code, s. 95-Harm caused whether must be accidental to come within General Exception-Physical injury whether altogether outside pur11iew of section.\n\nIn the course of an altercation between neighbours the first respondent slapped the appellant's servant and threw a file of papers at the appellant's husband which missed him but hit the appellant on the elbow, causing a scratch. On a prosecution being launched the Presidency Magistrate convicted the first respondent under s. 323 of the Indian Penal Code. The High Court however held that the offending act came within the General Exception in s. 95 of the Indian Penal Code as it was trivial. In appeal to this Court the appellant contended that: (1) Section 95 applies only when the act of the accused is accidental and not deliberate; (2) the section cannot be invoked if the harm caused consists of physical injury, HELD: (i) It cannot be said that harm caused by doing an act with intent to cause harm or with the knowledge that harm may be caused thereby will not fall within the terms of s. 95. The section applies if the act causes harm or is intended to cause harm or is known to be likely to cause harm, provided the harm is so slight that no person of ordinary sense or temper would complain of such harm. [125 F]\n\n(ii) There is nothing in s. 95 to justify the contention that the word 'harm' as used in that section does not include physical injury.\n\nSection 95 is a general exception and that word has in many other sections dealing with general exceptionsi a wide connotation inclu~ sive of physical injury. There is no reason to suppose that the Legislature intended to use the expression 'harm' in s. 95 in a restricted sense. [126 A-B] F\n\n(iii) Whether an offence is trivial must depend on the nature of the injury, the position of the parties, the knowledge or intention • with which the offending act is done, and other related matters.\n\n[126 C-D]\n\nCRIMINAL APPELLATE JURISDICTION: Appeal No. 209 of 1964.\n\nAppeal by special leave from the judgment and order dated January 31, 1964 of the Bombay High Court in Criminal Revision Application No. 913 of 1963.\n\nJ. C. Dalal, E. E. Jhirad and 0. P. Rana, for the appellant.\n\nS. C. Patwardhan B. Dutta, I. B. Dadachanji, 0. 0. Mathur and Ravinder Narain, for respondent No. I.\n\nThe Judgment of the Court was delivered by Shah, J. The appellant, Mrs. Menezes, is the owner of a\n\n124 t.:PREMll! COURT RF.POHTS\n\n(1966] BUPP. S.CR.\n\nhouse in Bombay, and the wife of the first respondent Yusuf Khan is a tenant of a part of the first floor in that house. On January 17, 1963 one Roberta servant of the appellant. called the wife of\n\nthe first respondent a thief and 'l/a/kar'. On the next day the first respondent slapped the face of Robert. This was followed by a heated exchange of abusive words between the first respondent and the appellant's husband. The first respondent was annoyed B and threw at the appellant's husband a \"file\" of papers. The file did not hit the appellant's husband, but it hit the elbow of the appellant causing a \"scratch\". The appellant lodged information at the Sandra police station complaining that the first respondent had committed house trespass in order to the committing of an1\n\noffence punishable with imprisonment, had thrown a shoe at her, C had slapped the face of her servant Robert, and had also caused her a \"bleeding incised wound on the forearm\". The version of the appellant was -a gross exaggeration of the incident. The Officer in charge of the police station was persuaded to enter upon an in vestigation on this information, which by charging the respondent with the offence of trespass was made to appear as if a cognizable offence was committed. The Sub-Inspector found that the appellant D had suffered a mere scratch on her elbow. The appellant and Robert declined to go to a public hospital for examination or treat ment, and were, it is claimed, examined by a private medical practitioner, who certified that the appellant had suffered a \"bleeding incised wound, skin deep, size I\" in length on the right forearm\", and that Robert had \"a swelling about Ii'' in diameter, roundish, soft and tender\", hut no bruises.\n\nThe offence was petty, but was given undue importance. The case was transferred from the Court of the Presidency Magistrate, Bandra. to the Court of the Presidency Magistrate VI Court, Maza gaon, Bombay, and was entrusted to a special prosecutor on behalf of the State. The Trial Magistrate held that the story that thti\n\nfirst respondent had trespassed into the house of the appellant was false and the charge of trespass was made only with a view to F persuade the police officer to investigate it as a cognizable offence.\n\nThe story of the appellant that the first respondent had hurled a shoe at her was also disbelieved. The Trial Magistrate held that simple injuries were caused to Robert and to the appellant and for causing those injuries he convicted the first respondent of the offence under s. 323 I.P. Code and sentenced him to pay a fine of Rs. I 0 on each of the two counts. Against the order of conviction, G a revisional application was preferred to the High Court of\n\nJdicature at Bombay. The appellant was no longer concerned with the proceedings in the High Court, but since there were some negotiations for compounding the offence, the appellant was impl:aded as a party to the proceeding before the Hi!lh Court. The High Court was of the view that the appollant had grossly exag B\n\ngerted her story. that the evidence of the medical practitioner who claimed to have examined the appellant and Robert and to have\n\n\"certified the injuries\" did \"not inspire confidence\", that the husband of the appellant had addressed provocative and insulting\n\nabuses, and that in a state of excitement the respondent hurled a \"file of papers\" at the appellant's husband which missed him and caused a \"scratch\" on the appellant's forearm. The injuries caused to the appellant and to Robert were in the view of the High Court\n\n\"trivial\" and the case was one in which the injury intended to be caused was so slight that a person of ordinary sense and temper would not complain of the harm caused thereby. The High Court accordingly set aside the conviction and acquitted the first respondent.\n\nBefore us it was urged that the High Court had no power to act under s. 95 J.P. Code, since by the act of the respondent bodily hurt was intentionally caused. It was argued that s. 95 applies only in those cases where the act which causes harm is actually caused to the complainant s. 95 cannot be invoked. In s. 95 J.P. Code includes financial loss, loss of reputation, mental worry or even apprehension of injury, but when physica.1 injury is\n\nD actually caused to the complainant s. 95 cannot be invoked. In~ our view there is no substance in these contentions. Section 95 provides:\n\n\"Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of E such harm.\"\n\nIt is true that the object of framing s. 95 was to exclude from the operation of the Penal Code those cases which from the imperfec tion of language may fall within the letter of the law, but are not within its spirit and are considered, and for the most part dealt with by the Courts, as innocent. It cannot however be said that harm caused by doing an act with intent to cause harm or with the knowledge that harm may be caused thereby, will not fall within the terms of s. 95. The argument is belied by the plain terms of s. 95. The section applies if the act causes harm or is intended to cause harm or is known to be likely to cause harm, provided the harm is so slight that no person of ordinary sense and temper would complain of such harm.\n\nThe expression \"harm\" bas not been defined in the Indian Penal Code: in its dictionary meaning it connotes hurt, injury; damage; impairment, moral wrong or evil. There is no warrant for the contention raised that the expression \"harm\" in s. 95 does not include physical injury. The expression \"harm\" is used in many sections of the Indian Penal Code. In ss. 81, 87, 88, 89, 91, 92,\n\n100, 104 and 106 the expression can only mean physical injury. In s. 93 it means an injurious mental reaction. In s. 415 it means injury to a person in body, mind, reputation or property. In ss. 469\n\n126 SUrRE.>IE COURT ltLPOll'fS [1966] SUPP. s.c.R.\n\nand 499 harm, it is plain from the context, is to the reputation of the aggrieved party. There is nothing in s. 95 which warrants :t restricted meaning which counsel for the appellant contends should be attributed to tha.t word. Section 95 is a general cxcep•\n\ntion, and if that expression has in many other sections dealing with the general exceptions a wide connotation as inclusive of physical B injury, there is no reason to suppose that the Legislature intended to use the expression \"harm\" in s. 95 in a restricted sense.\n\nThe next question is whether, having regard to the circumstances, the harm caused to the appellant and to her servant Robert was so slight that no person of ordinary sense and temper would complain of such harm. Section 95 is intended to prevent penalisa- C tion of negligible wrongs or of offences of trivial character.\n\nWhether an act which amtrnnts to an offence is trivial would undoubtedly depend upon the nature of the injury, the position of the parties, the knowledge or intention with which the offending\n\nact is done, and other related circumstances. There can be no + absolute standard or degree of harm which may be regarded as so slight that a person of ordinary sense and temper would not com D plain of the hann. It cannot be judged solely by the measure of physical or other injury the act causes. A soldier assaulting h:s colonel, a policeman assaulting his Superintendent, or a pupil beating his teacher, commit offences, the heniousness of which cannot be determined merely by the actual injury suffered by the officer or the teacher, for the assault would be wholly subversive of discipline. An assault by one child on another, or even by a grown-up E person on another, which causes injury may still be regarded as so slight, having regard to the way and station of life of the parties, relation between them, situation in which the parties are pl<aced. and other circumstances in which harm is caused. that the victim ordinarily may not complain of the harm.\n\nThe complainant's husband had. it appears, beaten the first F respondent's child for some rude behaviour and Robert the appellanl\"s servant was undoubtedly rude to the respondent's wife and instead of showing contrition he said that he would repeat his rude words. At the time of the incident in question, the appellant's\n\nhusband and the first respondent exchanged vulgar abuses. ApparenUy the respondent was annoyed and threw a \"file\" bf papers which caused a mere scratch to the appellant. It is trne that the G servant Robert was given a slap on the face by the first respondent.\n\nBut the High Court was of the view that the harm caused both to the appellant and to Robert was \"trivial\", and that the evidence justified the conclusion that the injury was so slight that a person of ordinary sense ancl temper placed in the circumstances in which the appollant and Robert were placed may not reasonably H have complained for that harm. Even granting that a different view may be taken of the evidence, we do not think that we woulcl\n\n• A\n\nbe justified in an appeal under Art. 136 of the Constitution in disagreeing with the order of the High Court.\n\nWe therefore maintain the order of a, cquittal passed by the High Court. This court had at the time when special leave was granted directed that Rs. 1,500 be deposited by the appellant by way of costs of the respondents. The State of Maharashtra has not appeared before us in this appeal. In the circumstances, we direct that Rs. 7 50 be paid to the first respondent and the balance be returned to the appellant.\n\nAppeal dismissed.", "total_entities": 39, "entities": [{"text": "A\n\nMRS. VEEDA MENEZES", "label": "PETITIONER", "start_char": 2, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "MRS. VEEDA MENEZES", "offset_not_found": false}}, {"text": "YUSUF KHAN AND ANR", "label": "RESPONDENT", "start_char": 28, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "YUSUF KHAN AND ANR", "offset_not_found": false}}, {"text": "K. N. WANCHOO, J.", "label": "JUDGE", "start_char": 66, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "C. SHAH", "label": "JUDGE", "start_char": 84, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S. M. 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{"document_id": "1966_1_128_134_EN", "year": 1966, "text": "GOPALAKRISHNA PILLAI AlliD OTHERS\n\nMEENAKSHI A Y AL AlliD OTHERS\n\nMarch 31, 1966\n\n(A. K. SARKAR C.J., J. R. MliDHOLKAR ASD R. S. BACHAWAT, JJ.J\n\nCivil Procedure Code, 1908, Order 20. r. 12 future mesne profits- Wh'1n can be grated by Court.\n\nS. d'ied in 1927 and bv a will bequeathed some items of property\n\nto his wife N and certain other property to his mother C. He also appointed C as a trustee of some property fo\" the benefit of a temple.\n\nC Upon the death of N in 1931, C inherited her properties as a limited heir.\n\nSome of this property was sold by C under a sale deed in June 1957; by a deed executed in August 1940 she gifted some of the other inherited property to M and thcreaftec purported to execute a will\n\nin September 194il. bequeathing to M the remainini: properties belonging to her and inherited by her as a limited heir from N, as also her trusteeship rights in the p'operty left by S.\n\nAfter C's death on September 15, 194il, M conveyed all the pr0perties acquired by him under the gift deed and tho '.Viii to V. V died in 1943 leaving some of the defendants as his heirs.\n\nln about August 1952 the respondents instituted a suit and claimed the properties left by C and N as their heirs. The'' denied the factum and validity of the sale deed, the gift deed as well as the will of September 1940.\n\nThe Courts below held that C had no power to disnose of the properties which she had inherited from N as a limited heir; that '?1~ there was no sale by the deed executed in June 1957; and that the gift deed executed by her was valid.\n\nTheSe findings were not challenged in the appeal to this Court.\n\nThe Trial Court, however. held that the respondents had failed to prove that they were entitled to inherit the properties on the F death of C. and that the will of September 4, 1940 was forged. On appeal to the High Court, the single bench upheld the will and also directed that the question whether the respondents were the next revcrsioners of N should be tried afresh by the Trial Court. But in a Letters Patent Appeal the Division Bench held the will was not genuine and its execution and attestation v; erc not proved: it also held that on the materials on the record the respondents must be held to te the next reversioners of N.\n\nThe Court therefore passed a decree in favour of the respondents for recovery of the various G items of p:-operty and deelared that they w\"re entitled to mesne Pr<>- fits for three years prior to the suit and also to future mesne profits in respect of the various properties; accordingly it directed an inquiry by the Trial Court to determine futuce mesne profits.\n\nIn the appeal to this Court by some of the defendants. it was also contended that the High Court had no power to pass a decre\" for mesne profits accrued after the institution of the suit as there H \\Vas no specific prayer for such a decree.\n\nGOPALAKRISHNA v. MEENAKSHI (Bachawat, J.) 129\n\nHELD: On the facts, the High Court had rightly held that the appellants had failed to prove the execution and attestation of the will. [131 F-GJ The trial proceeded on the footing that the plaintiffs were the next reversioners of N and the High Court was therefore right in holding that it was not open to the appellants to contend that the respondents were not the reversionery heirs of N. [132 BJ.\n\nOn a reading of the plaint it was clear that the suit was for recovery of possession of immovable property and for mesne profits.\n\nThe provisions of Order 20, r. 12 were therefore attracted to the suit and the court had power to pass a decree in the suit for both past and future mesne profits. [132 F]\n\nOrder 20, r. 12 enables the court to pass a decree for both past ancf future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of 0. 7, rr. 1 and 2 and 0. 7, r. 7 of the Code of Civil Procedure and s. 7(1) of the Court Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court-fees thereon. With regard to future mesne profits, the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of 0. 20, r. 12 apply. But in a suit to which the provisions of 0.20, r. 12 apply, the court has a discretionary power to pass a decree directing an enquiry; into the future mesne profit•. and the court may grant this genera1 relief, though it is not specifically asked for in the plaint. [132 G-\n\n133 BJ .\n\nCase law referred to.\n\nAppeal by special leave from the judgment and decree dated February 24, 1961 of the Madras High Court in L.P.A. No. 126 of 1957.\n\nN. C. Chatterjee and R. Ganapathy Iyer, for the appellants.\n\nT. V. R. Tatacihari, for respondents Nos. 1 and 3 to 7.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. The following pedigree shows the relationship of Sivasami Odayar and the members of his family: Chinnayal ,--------------\"-------------, Sivasami Odayar Meenakshi Kamakshi married Ayal Ayal Neelayadakshi (Plff. No. I) (PltI. No. 2) Sivasami died issueless in 1927. By his will dated September 14, 1927 he bequeathed items 1 to 4 ancl one half of items 12 and 13 of the suit properties to his wife, Neelayadakshi absolutely and H items 5 to 11 and one half of items 12 and 13 to his mother, Chinnaya\\ absolutely. He also appointed Chinnayal as the trustee of items 14 to 18 for the benefit of the Pillayar temple. Neelayadakshi\n\n130 8CPI:n!E COl'1lT REPORTS\n\n(1966) SCPP. S.~.R.\n\ndied in 1931. It is common case that on her death Chinnayal in- A herited her properties as a limited heir. Defendants 6 and 7 claimed that their father purchased item 4 from one Muthukumaraswami. agent of Chinnayal, under a sale deed dated June 5. 1937.\n\nOn August 28, 1940, Chinnayal executed a deed of gift in favour of Muthukumaraswami giving him items 1, 3 and 8 and portions B of items 5 and 13. On September 4, 1940, Chinnayal is said to have executed a will bequeathing to Muthukumaraswami the remaining properties belonging to her absolutely and inherited by her as a limited heir from Neclayadakshi and also items 14 to 18 and her trusteeship right in respect of those items. Chinnayal died on September 15. 1940. It is common case that the plaintiffs are her heirs. Soon after her death, Muthukumaraswami conveyed to one c Venugopala all the properties acquired by him under the aforesaid gift deed and will. Venugopa!a died in 1943 leaving defendants 1 to 5 as his heirs. In or about August 1952, Meenakshi and Kamakshi instituted a suit in the Court of the Subordinate Judge, Cuddalore for possession of the suit properties alleging that they were entitled to the properties left by Chinnayal and Neelayadakshi and denying the factum and validity of the gift deed dated D August 28, 1940, the will dated September 4. 1940 and the alleged sale in favour of the father of defendants 6 and 7. The defendants contested the suit.\n\nThe Courts below held that ()) Chinnayal had no power to dispose of any of the properties which she harl inherited from Neelayadakshi as a limited heir, (2) Chinnayal duly executed the E gift deed and by that deed she lawfully disposed of items 8 and portions of items 5 and 13, and (3) there was no sale of item 4 to the father of defendants 6 and 7. These findings are no longer challenged. The Subordinate Judge held that the plaintiffs failed to prove that they were the reversioners of Neelayadakshi, or were entitled to inherit her properties on the death of Chinnayal, and that the will dated September 4, 1940 was forged and its execution F and attestation were not proved. The plaintiffs and the defendants preferred separate appeals from this decree to the Madras Hi)(h Court. Ramaswami, J held that the will was genuine and was duly executed and attested but it was inoperative with regard to items 14 to 18 and the trusteeship rights in those items. He also held that the question whether the plaintiffs were the next reversioners of Neelayadakshi should he tried afresh by the trial Court. There- G after. Kamakshi died and her legal representatives were substituted on the record. Meenakshi and the legal representatives of Kamakshi filed an appeaJ under cl. 15 of the Letters Patent of the Hioh Court, and the appellant filed cross-objections. A Division Bench of the Madras High Court held that the will was not genuine and its execution and attestation were not proved. It also held that on H the materials on the record the plaintiffs must be boll to be the next reversioners of Neelayadakshi. On thi• finding, the Division\n\nA •\n\n~ .\n\n'..'-\n\nGOPALAKRISHNA v.\n\nMEENAKSRI (Bachawat, J.) 131\n\nBench passed a decree in favour of the appellants before t}1em for the nocovery of possession of items 1 to 4, 3 cents m item 5, items 6, 7 and 9 to 13 and items 14 to 18, declared that they were entitled to mcsne profits for it three years pror to the .suit nd to future mesne profits in respect of the aforesaid properttes, drrected the trial Court to make an enquiry into the mesne profits under\n\n0.20, r. 12 of the Code of Civil Procedure and ordered that in respect of the rest of the suit properties the suit be dismissed. Some of the defendants now appeal W this Court by Special leave.\n\nCounsel for the appellants challenged before us the correctne; s of the findings of the Division Bench of the High Court with regard to (]) the factum and execution of the will and (2) the plaintiffs' claim to be the next reversioners of Neelayadakshi. He also contended that the High Court had no power to pass a decree of mesne profits accrued after the institution of the suit.\n\nThe appellants' case is that the will of Chinnayal dated September 4, 1940 was attested by Balasubramania and Samiyappa.\n\nThe appellants rely solely on the testimony of Samiyappa for proof of the execution and attestation of the will. Samiyappa. was not present when Chinnayal is said to have put her thumb impression on the will. Samiyappa said that when he was passing along the street, Balasubramania and Muthukumaraswami called him. He went inside Chinnayal's house, Muthukumaraswami gave the wi!l to him and after he read it aloud, Chinnayal acknowledged that she had affixed her thumb-impression on the will. He then pnt his signature on the will and Balasubramania completed it after he left. In his examination-in-chief, he said nothing about the attestation of the will by Balasubramannia. In cross-examination, he said that after he signed, Balasubramania wrote certain words on the will and put his signature. On further crossexamination, he added that Balasubramania was saying and writing something on the will, but he did not actually see Balasubramania writing or signing We are satisfied that Samiyappa did not see Balasubramania putting his signature on the will. The High Court rightly held that the appellants failed to prove the signature of Balasubramania or the attestation of the will by him.\n\nOn this ground alone we must hold that the will was not proved. We do not think it necessary to consider the further question whether the will was genuine.\n\nThe plaintiffs claimed that on Chinnayal's death the properties acquired by Neelayadakshi under the will of Sivasami devolved upon them as the next reversioners of Neelayadakshi. Relying on a statement of P.W. 2, Sethurama Nainar, that Meenakshi had two daughters and a son, the appellants contend that the son of Meenakshi was the reversionary heir of Neelayadakshi. Assuming that Meenakshi had a son, it is not possible to say that he was born before the death of Chinnayal, and, if so, he was alive at the time\n\nS1JPRLti:; COURT ltJo:PORTS [1966] surr. s.c.ll.\n\nof her death. In the absence of any son of Mcenakshi at the time A of Chinnayal's death, aclmit!cdly the plaintiffs would be the next reversioncrs of Nalayadakshi. No issue was raised on this question, and the trial proceeded on the footing that the plaintiffs were the next reversioncrs of Neelayadakshi. The trial Court refused leave to the appellants to file an additional statement raising an issue on this point. In the circumstances, the Division Bench of B the Madras High lourt rightly held that it was not open to the appellants to contend that the plaintiffs were not the rcversionary heirs of Neelayadakshi, and were not entitled to succeed to her estate on the death of Chinnayal.\n\nIn the plaint, there was no specific prayer for a decree for mesne profits subsequent to the institution of the suit. Counsel for c the appelants argued that in the absence of such a specific prayer, the High Court had no jurisdiction to pass a decree for such mesnc profits. We arc unable to :iccept this contention. Order 20, r. 12 of the Code of Civil Procedure provides that \"where a suit is for the recovery of possession of immovable property and for rent or mesne profits\" the Court may pass a decree for the possession of the property and directing an inquiry as to the rent or mcsne D profits for a period prior to the institution of the suit and as to the subsequent mesne profits. The question is whether the provisions of 0.20, r. 12 apply to the present suit. We find that the plaintiffs distinctly plcadcJ in paragraph 9 of the plaint that they were entitled to call upon the defendants to account fbr mesne profits sir.cc the death of Chinnayal in respect of the suit properties. For the purposes of jurisdiction and court-fees. they E valued their claim for possession and mesne profits for three years prior to the date of the suit and paid court-fee thereon.\n\nIn the prayer portion of the plaint, they claimed recovery of possession, an acc0unt of mesnc profits for three years prior to the date of the suit, costs and such other relief as may seem fit and proper to the Court in the circumstances of the case. On a reading of the plaint, we arc satisfied that the suit was for recovery of possession F of immovable property and for mesne profits. The provisions of\n\n0.20, r. 12 were, therefore, attracted to the suit and the Court had power to pass a decree in the suit for both past and future mcsne profits.\n\nOrder 20. r. 12 enables the Court to pass a decree for hoth past and future mesnc profits but there are important distinctions G in the procedure for the enforcement of the two claims. With regard to past mesne profits. a plaintiff has an existing cause of\n\naction on the date of the institution of the suit. In view of 0.7, rr. I and 2 and 0.7. r. 7 of the Code of Civil Procedure ands. 7(1) of the Court Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesnc profits, value the H claim approximately and pay court fees thereon. With regard to future mesnc profits, the plaintiff has no cause of action on the\n\n• A\n\n• F\n\nGOPALAKRISHXA v.\n\nMEENAKSHI (Bachawat, J.) 133\n\ndate of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of 0.20, r. 12 apply. But in a suit to which the provisions of 0.20, r. 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the Court may grant this general relief, though it is not specifically asked for in the plaint, see Basavayya v. Guruvayya('). In Fakharuddin Mahomed Ahsan, v. Official Trustee of Bengal('), Sir R. P. Collier observed :\n\n\"The plaint has been already read in the first case and their Lordships are of opinion that it is at all events open to the construction that the plaintiff intended to claim wasilat up to the time of delivery of possession, although, for the purpose of valuation only, so much was valued as was then due; but be that as it may, they are of opinion that, under s. 196 of Act VIII of 1859, it was in the power of the Court, if it thought fit, to make a decree which should give the plaintiff wasilat up to the. date of obtaining possession ...\n\nSection 196 of Act VIII of 1859 empowered the Court in a suit for land or other property paying rent to pass a decree for mesne profits from the date of the suit until the date of delivery of possession to the decree-holder. The observations of the Privy Council suggest that in a suit to which s. 196 of Act VIII of 1859 applied, the Court had jurisdiction to pass a decree for mesne profits though there was no specific claim in the plaint for future mesne profits.\n\nThe Court has the like power to pass a decree directing an enquiry into future mesne profits in a suit to which the provisions of 0.20, r. 12 of the Code of Civil Procedure, 1908 apply.\n\nIn support of his contention that the Court has no jurisdiction to pass a decree for future mesne profits in the absence of a specific prayer for the same, counsel for the appellants relied upon the following passage in Mohd. Yamin and others v.\n\nVakil Ahmed and others(\").\n\n\"It was however pointed out by Shri S. P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor-General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mcsnc profits would be included within the expression 'awarding possession and occupation of the property aforesaid together with all the rights appertaining\n\n( 1 ) I.L.R. l!>tJ21\\IaJ. 173 (F.B) at 177. (')\n\n[1952] S.C.R. II33, II44.\n\n(')\n\n(8181) I.L.R. 8 Cal. 178 (P.C), IS9\n\n134 Sl:PIUCldE COURT REPORTS [l\\166) St:PP. • .: ....\n\nthereto'. We arc afraid that the claim for mcsne profits A cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne pro Ii ls though they had not been claimed in the plaint.\n\nThe provision in regard to the mesne profits will therefore have to be deleted from the decree.\" In our opinion, this passage does not support counsel's con\n\ntention. This Court made those observations in a case where the plaint claimed only declaration of title and recovery of possession of immovable properties and made no demand or claim for either past or future mesne profits or rent. It may be that in these circum stances, the suit was not one \"for the recovery of possession of im\n\nmovable property and far rent or mcsne profits\", and the Court c could not pass a decree for future mesne profits under 0.20, r. 12 of the Code of Civil Procedure. But where. as in this case, the suit is for the recovery of possession of immovable property and for past mcsne profits, the Court has ample power to pass a decree directing an enquiry as to future mesnc profits, though there is no specific prayer for the same in the plaint. In the aforesaid case, this\n\nCourt did not lay down a contrary proposition, and this was point D ed out by Subba Rao, C.J. in Atchamma v. Rami Reddy(').\n\nWe arc, therefore, satisfied that in this case the High Court had discretionary power to pass the decree for future mcsne profits. It is not contended that the High Court exercised its discretion im properly or erroneously. We see no reason to interfere with the decree passed by the High Court.\n\nIn the result, the appeal is dismissed with costs.\n\nAppeal dismissed.\n\n(') I.L.R. [1UJ7j !ndlir& J'r&Jo, h, 62,06.", "total_entities": 18, "entities": [{"text": "GOPALAKRISHNA PILLAI AlliD OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "GOPALAKRISHNA PILLAI AND OTHERS", "offset_not_found": false}}, {"text": "A. K. SARKAR C.J.", "label": "JUDGE", "start_char": 83, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "R. MliDHOLKAR ASD R. S. BACHAWAT, JJ", "label": "JUDGE", "start_char": 105, "end_char": 141, "source": "metadata", "metadata": {"canonical_name": "R.S. 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{"document_id": "1966_1_135_138_EN", "year": 1966, "text": "13&\n\nKUCHIYAN GOVINDA SW AMI\n\nKALLIANI AMMA LEKSHMI AMMA AND ORS.\n\nMarch 31, 1966\n\n[M. HIDAYATULLAH, J. R. MUDHOLKAR, R. S. BACHAWAT AND\n\nJ. M. SHELAT, JJ.J Ke•ala Land Reform' Act, 1963 (Ker. 1of1964), ss. 2(28), 2(26) -\"Kuzhikanam\" and \"Kudiyiruppu'-', meaning.\n\nBy a deed styled 'otti Kuzhikanam deed', the predecessor of the respondent sold a building standing on a property to the predecessor of the appellant and also transferred to him the right to possess and enjoy the property for 12 years in Kuzhikanam right with liberty to plant coconut trees thereon. The deed expressly reserved the right for the respondent to enjoy the fruit bearing trees then standing on the properties. and provided that after expiry of 12 yar~ the appellant would on demand demolish and take away the bmldmg and surrender possession of the land on receipt of a certain amount and he agreed compensation for the coconut trees planted by him. The respondent instituted a suit for redemption of the property, which was decreed. On appeals, the decree was affirmed by the District Court and High Court. In appeal to this Court the appellant claimed fixity of tenure and protection from eviction on the ground thd he was (i) a Kuzhikanamdar under s. 2(57)(d) and s. 2(28), or alternatively,\n\n(ii) the holder of a kudiyiruppu under s. 2(57) (hY and s. 2(26) of the Kerala Land Reforms Act.\n\nHELD: (i) The deed did not grant Kuzhikanam rights to the appellant.\n\n\"Kuzhikanam\" as defined in s. 2(28) means a transfer (1) of garden lands or of other lands or of both, (2) with the fruit bearing trees, if any standing thereon at the time of the transfer, (3) for the enjoyment of those trees and (4) for the purpose of planting such fruit bearing trees thereon. It does not include a uufructuary mortgage as defined in the Transfer of Property Act, 1882 but it was not the case of the respondent that the deed created such a usufructuary mortgage.\n\n(137 E-FJ A tranffi'cr of land without the fruit bearing trees then standing on it and not carrying Vvith it the right to enjoy those trees was not a kuzhikanam as defined ins. 2(28). The force of the words \"if any\" in the definition of \"kuzhikanam\" in s. 2(28) is that if there are any fruit bearing trees on the land at the time of the transfer, the trees also must be transferred for their enjoyment by the transferee.\n\n[137 H-138 BJ .\n\n(ii) The appellant was not the holder of Kudiyiruppu within th~ meaning of s. 2(26) cl the Act.\n\nThere was no material on the record to show that the building on the land was a residential building. Moreover, it did not appear that the land was necessary for the convenient enjoyment of the building. [138 DJ CIVIL APPELLATE JURISDICTION: Civil Appeal No. 225 of 1964.\n\nAppeal by special leave from the judgment and decree dated Ju1y 25. 1961 of the Kerala High Court in S.A No. 852 Of 1957.\n\nL/S5SCI-Jl\n\n13G l'1'RElt.E COLRT RFPOR1'H\n\nA. G. Pudi.uery, for the appellant.\n\nM. R. K. Pillai, for the respondents.\n\n[1966] 8!'.>P. ~.c n.\n\nThe Judgment of the Court was delivered by\n\nBachawat, J. In 1921, the plantiff executed in favour of the de- B fendant an otti kuzhikanam deed in respect of the suit property.\n\nBy this deed, the plaintiff sold to the defendant the building standing on the property for 350 fanams and also transferred to him for 350 fanams the right to possess and enjoy the property for 12 years in kuzhikanam right with liberty to plant coconut trees thereon, expressly reserving for the plaintiff the right to enjoy the fruitbearing trees then standing on the property. The deed provided C that after the expiry of 12 years the defendant would on demand demolish and take away the building and surrender possession of the land on receipt of 350 fanams and the agreed compensation for the coconut trees planted by him. The plaintiff instituted a suit for redemption of the property. During the pendency of the litigation, the plaintiff and the defendant died, and their legal representatives were substituted in their place. On May 31, 1951, the Principal D District Munsif. Quilon decreed the suit. On appeal. the District Court of Quilon aflirmed this decree. The present appellant, who is one of the legal representatives of the original defendant, filed a second appeal in 1 he High Court of Kerala. During the pendency of this appeal, the Kerala Agrarian Relations Act. 1960 (Act IV of 1961 I came into force. Before the High Court. the appellant claimed fixity of tenure and protection from eviction on the ground E that he was a ku1hikanamdar or alternatively, the holder of a kudiyiruppu. and, therefore. a tenant within the meaning of s. 2(50l (i)le) read with s. 2122) and s. 2(50)(illjl read with s. 2121) of Act IV of 1961. The High Court negatived this contention, and dismissed the appeal. The appellant now appeals to this Court by special leave. During the pendency of this appeal, Act IV of 1961 was repealed and the Kerala Land Reforms Act, 1963 <Act I of F\n\n1964) came into force. The appellant now claims fixity of tenure and protection from eviction on the ground that he is a kuzhikanamdar within the meaning of s. 2(57)(d) read with s. 2(28), or alternatively. the hnlder of a kudiyiruppu within the meaning of s. 2(57)(h) read with s. 2(26) of Act I of 1964. In the High Court, the appellant also claimed protection from eviction on the ground that he was a 'kudikidappukaran', but this contention was nega- G tived by the High Court and is no longer pressed.\n\nSection 13 of Act I of 1964 gives to every tenant fixity of tenure in respect of his holding. and forbids resumption of the holding except as provided in ss. 14 to 22. Section 2(571 defines 'tenant'. By section' 2(57){d) and (h), a tenant includes a kuzhika- H namdar and the holder of a kudiyiruppu. The appellant does not contend that he is a tenant as defined in the main part of s. 2(57).\n\n• •\n\n. ·-1-- \"\n\n...\n\nGOVINDA SWAMI v. KALLIANI AMMA (Bachawat, J.) 137\n\nHe, however, contends that he is a tenant as defined in s. 2(57)(d) and s. 2(57)(h).\n\nThe deed of 1921 was styled 'otti kuzhikanam deed'. In Malabar, the word \"otti\" in the context of the deed designates a possessory mortgage. According to Wilson's Glossary of Judicial and B Revenue Terms, \"kurikanam\" means \"compensation allowed for the value of trees planted, or other improvements made by the tenant or mortgagee on relinquishing possession; a lease or mortgage on such conditions.\" Under a kuzhikanam mortgage or lease in Malabar, the grantee normally acquires the right to hold the property for 12 years for the purpose of planting fruit-bearing trees thereon and to claim compensation for the value of the trees C planted on relinquishing possession. Had there been no special definition of the expression \"kuzhikanam\" in Act I of 1964, we would have been inclined to hold that the grantee under the deed of 1921 was a kuzhikanamdar. But s. 2(28) of Act I of 1964 provides that in this Act unless the context otherwise requires, \"kuzhikana'm\" means and includes a transfer of garden lands or of other lands or of both, with the fruit-bearing trees, if any, standing there- D on at the time of the transfer, for the enjoyment of those trees and for the purpose of planting such fruit-bearing trees thereon but shall not include a usufructuary mortgage a<s defined in the Transfer of Property Act, 1882.\" This definition of kuzhikanam is both inclusive and exhaustive. Unless the context requires otherwise, the expression \"kuzhikanam in the Act can have only the meaning given in s. 2(28). There is nothing in the context of s. 2(57) and E s. 13, which requires a different meaning for this expression.\n\n\"Kuzhikanam\" as defined in s. 2(28) means a transfer (!) of garden lands or of other lands or of both, (2) with the fruit-bearing trees, if any, standing thereon at the time of the transfer, (3) for the enjoyment of those trees and (4) for the purpose of planting such fruitbearing trees thereon. It does not include a usufructuary mortgage as defined in the Transfer of Property Act, 1882, but it is not the case of the plaintiff that the deed of 1921 created such a usufructuary mortgage. Now the deed of 1921, while effecting a transfer of land for the purpose of planting coconut trees thereon, expressly reserved for the grantor the right to enjoy the fruit-bearing trees then standing on the land and did not transfer those trees to the grantee. On behalf of the appellant, it was argued that the words \"with the fruit-bearing trees, if any, standing thereon at the time of the transfer, for the enjoyment of those trees\" are not essential parts of the definition of 'kuzhikanam' in s. 2(28), and that we should hold that a transfer of land for the purpose of planting fruit-bearing trees thereon is kuzhikanam, though there is no transfer of the fruit-bearing trees stalllding on the land at the time of the transfer and though the transfer is not for the en.ioyment of those H trees. We are unable to accept this contention. We think that a transfer of land without the fruit-bearing trees then standing on it and not carrying with it the right to enjoy those trees is not a L/S5SCI-ll(a)\n\n138 8UPRF..llE C'OcRT REP0RT'!\n\n(I 966] SUPP. R.C.H.\n\nkuzhikanam as defined in s. 2(28). The force of the words \"if any\" A in the definition is that if there are any fruit-bearing trees on the land at the time of the transfer. the trees also must be transferred for their enjoyment hy the transferee. The contention that the deed of 1921 granted kuzhikanam rights as defined in s. 2(28) of Act I of 1964 is rejected.\n\nThe appellant next contends that he is the holder of kudiyiruppu. Section 2(26) of Act I of 1964 which defines 'kudiyiruppu', reads:\n\n\"kudiyiruppu\" means a holding or part of a holding consisting of the site of any residential building. the site or sites of other buildings appurtenant thereto. such other lands as are necessary for the convenient enjoyment of such residential building and easements attached thereto, but does not include a kudikidappu.\"\n\nJ here is no material on the record to show that the building on the land is a residential building. Moreover, it does not appear that\n\nthe land is necessary for the convenient enjoyment of the building.\n\nThe contention that the appellant is the holder of kudiyiruppu is D rejected.\n\nThe appeal fails and is dismissed. There will be no order as to costs.\n\nA ppea/ dismissed.\n\n• I\n\n-'I--\n\nlo:", "total_entities": 41, "entities": [{"text": "AMI\n\nKALLIANI AMMA LEKSHMI AMMA AND ORS", "label": "RESPONDENT", "start_char": 25, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "KALLIANI AMMA LEKSHMI AMMA AND ORS", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J.", "label": "JUDGE", "start_char": 84, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 104, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 118, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "M. SHELAT, JJ", "label": "JUDGE", "start_char": 141, "end_char": 154, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT", "offset_not_found": false}}, {"text": "ss. 2(28), 2(26)", "label": "PROVISION", "start_char": 203, "end_char": 219, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(57)(d)", "label": "PROVISION", "start_char": 1228, "end_char": 1239, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(28)", "label": "PROVISION", "start_char": 1244, "end_char": 1252, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(57)", "label": "PROVISION", "start_char": 1312, "end_char": 1320, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(26)", "label": "PROVISION", "start_char": 1329, "end_char": 1337, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(28)", "label": "PROVISION", "start_char": 1468, "end_char": 1476, "source": "regex", "metadata": {"statute": null}}, {"text": "does not include a uufructuary mortgage as defined in the Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 1741, "end_char": 1829, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(28)", "label": "PROVISION", "start_char": 2178, "end_char": 2186, "source": "regex", "metadata": {"linked_statute_text": "It does not include a uufructuary mortgage as defined in the Transfer of Property Act, 1882", "statute": "It does not include a uufructuary mortgage as defined in the Transfer of Property Act, 1882"}}, {"text": "s. 2(26)", "label": "PROVISION", "start_char": 2440, "end_char": 2448, "source": "regex", "metadata": {"linked_statute_text": "It does not include a uufructuary mortgage as defined in the Transfer of Property Act, 1882", "statute": "It does not include a uufructuary mortgage as defined in the Transfer of Property Act, 1882"}}, {"text": "S5S", "label": "PROVISION", "start_char": 2860, "end_char": 2863, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(50l (i)", "label": "PROVISION", "start_char": 4629, "end_char": 4641, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2122", "label": "PROVISION", "start_char": 4655, "end_char": 4662, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(50)(illjl read with s. 2121)", "label": "PROVISION", "start_char": 4668, "end_char": 4701, "source": "regex", "metadata": {"statute": null}}, {"text": "Kerala Land Reforms Act, 1963", "label": "STATUTE", "start_char": 4919, "end_char": 4948, "source": "regex", "metadata": {}}, {"text": "s. 2(57)(d)", "label": "PROVISION", "start_char": 5119, "end_char": 5130, "source": "regex", "metadata": {"linked_statute_text": "the Kerala Land Reforms Act, 1963", "statute": "the Kerala Land Reforms Act, 1963"}}, {"text": "s. 2(28)", "label": "PROVISION", "start_char": 5141, "end_char": 5149, "source": "regex", "metadata": {"linked_statute_text": "the Kerala Land Reforms Act, 1963", "statute": "the Kerala Land Reforms Act, 1963"}}, {"text": "s. 2(57)(h)", "label": "PROVISION", "start_char": 5219, "end_char": 5230, "source": "regex", "metadata": {"linked_statute_text": "the Kerala Land Reforms Act, 1963", "statute": "the Kerala Land Reforms Act, 1963"}}, {"text": "s. 2(26)", "label": "PROVISION", "start_char": 5241, "end_char": 5249, "source": "regex", "metadata": {"linked_statute_text": "the Kerala Land Reforms Act, 1963", "statute": "the Kerala Land Reforms Act, 1963"}}, {"text": "Section 13", "label": "PROVISION", "start_char": 5470, "end_char": 5480, "source": "regex", "metadata": {"linked_statute_text": "the Kerala Land Reforms Act, 1963", "statute": "the Kerala Land Reforms Act, 1963"}}, {"text": "ss. 14 to 22", "label": "PROVISION", "start_char": 5624, "end_char": 5636, "source": "regex", "metadata": {"linked_statute_text": "the Kerala Land Reforms Act, 1963", "statute": "the Kerala Land Reforms Act, 1963"}}, {"text": "Section 2(571 defines 'tenant'. By section' 2(57)", "label": "PROVISION", "start_char": 5638, "end_char": 5687, "source": "regex", "metadata": {"linked_statute_text": "the Kerala Land Reforms Act, 1963", "statute": "the Kerala Land Reforms Act, 1963"}}, {"text": "s. 2(57)", "label": "PROVISION", "start_char": 5853, "end_char": 5861, "source": "regex", "metadata": {"linked_statute_text": "the Kerala Land Reforms Act, 1963", "statute": "the Kerala Land Reforms Act, 1963"}}, {"text": "s. 2(57)(d)", "label": "PROVISION", "start_char": 5992, "end_char": 6003, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(57)(h)", "label": "PROVISION", "start_char": 6008, "end_char": 6019, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(28)", "label": "PROVISION", "start_char": 6881, "end_char": 6889, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 7313, "end_char": 7343, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(28)", "label": "PROVISION", "start_char": 7522, "end_char": 7530, "source": "regex", "metadata": {"linked_statute_text": "the Transfer of Property Act, 1882", "statute": "the Transfer of Property Act, 1882"}}, {"text": "s. 2(57)", "label": "PROVISION", "start_char": 7567, "end_char": 7575, "source": "regex", "metadata": {"linked_statute_text": "the Transfer of Property Act, 1882", "statute": "the Transfer of Property Act, 1882"}}, {"text": "s. 13", "label": "PROVISION", "start_char": 7582, "end_char": 7587, "source": "regex", "metadata": {"linked_statute_text": "the Transfer of Property Act, 1882", "statute": "the Transfer of Property Act, 1882"}}, {"text": "s. 2(28)", "label": "PROVISION", "start_char": 7673, "end_char": 7681, "source": "regex", "metadata": {"linked_statute_text": "the Transfer of Property Act, 1882", "statute": "the Transfer of Property Act, 1882"}}, {"text": "does not include a usufructuary mortgage as defined in the Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 7946, "end_char": 8035, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(28)", "label": "PROVISION", "start_char": 8635, "end_char": 8643, "source": "regex", "metadata": {"linked_statute_text": "It does not include a usufructuary mortgage as defined in the Transfer of Property Act, 1882", "statute": "It does not include a usufructuary mortgage as defined in the Transfer of Property Act, 1882"}}, {"text": "S5S", "label": "PROVISION", "start_char": 9131, "end_char": 9134, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(28)", "label": "PROVISION", "start_char": 9223, "end_char": 9231, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(28)", "label": "PROVISION", "start_char": 9522, "end_char": 9530, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(26)", "label": "PROVISION", "start_char": 9628, "end_char": 9641, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_1_139_145_EN", "year": 1966, "text": "• A\n\nVAJESINGH SALAMBHAI NAIK & ORS .\n\nSTATE OF GUJARAT & ANR.\n\nApril I, 1966\n\n[K. SUBBA RAO AND V. RAMASWAMI, JJ.]\n\nBombay Merged Territories and Areas (Jagirs AboWion) Act, 1953, ss. 13, 17(1), 20-Decision of appeals under the Act by Tribunal- Whether must be on merits in every case-Regulation 21 made under the Bombay Revenue Tribunal Act, 1958-Limitation for application for restoration of appeals dismissed for non-prot.1ecution.\n\nThe appellants had applied for compensation to the J agir Abolition Officer under s. 13 of the Bombay Merged Territories and Areas (Jagir Abolition) Act, 1953 in respect of their proprietary jagirs.\n\nAgainst the orders of the said officer they preferred appeals to the Revenue Tribunal which were dismissed for non-prosecution.\n\nThe appellants thereupon filed applications for restoration of the appeals within 30 days of the receipt of the orders of dismissal of the appeals.\n\nThese applications were dismissed as time-barred, the Tribunal taking the view that time was to be calculated from the date of the urder. The appellants' applications under Art. 227 of the Constitution to the High Court failed and they came by way of special leave, to this Court. It was contended on behalf of the appellant that (i)' the Tribunal even while deciding ex-parte had to decide on merits and that (ii) the applications for restoration were filed within the time prescribed in Regulation 21 made under the Bombay Revenue Tribunal Act, 1958 which applied to the case.\n\nHELD: (i) In the context of s. 20 and iin view of the express language of s. 17(1) of the Jalgirs Abolition Act the Tribunal had no power to dismiss the appeals in question for non-prosecution, but it was obligatory on its part of decide the appeals on merits and to record is decision even though there was de(ault on the part of the appellant to appear in the appeal. [142 E-FJ\n\n(ii) The Tribunal also committed an error of law in dismissing as time-barred the applications for restoration of the appeals made by the appellants. In Regulation 21 made under Bombay Revenue Tribunal Act, 1958 the time prescribed for such applications is thirty days from the date of receipt of the Tribunal's order dismissing the appeal, and, the appellants had filed their applications within the said period. [145 A, BJ\n\nRegulation 21 lays down the procedure for dealing with applications for restorati?n _made under Regulation 20 and th\" latter Regulation mcludes w1thm its scope all appeals 'decided ex-parte' whether on merits or otherwise. It could not therefore be said that Regulation 21 did not apply to the case. [144 HJ\n\nCIVIL APPELLATE JURISDICTION: Appeals by special leave from the judgments and orders dated November 27, 1961 of the Gujarat High Court in Special Civil Applications Nos. 704 and 707 of 1961.\n\n140 Sl.PRF..ME COL'RT l'.\":PORT~ [1\\lt'G) 8l'PP. s.C.R•\n\nArun !liagi11/al S11rti, B. Datta and J. B. Dadachanji, for the appellants.\n\nA. K. Sen, M. S. K. Sastri and B. R. G. K. Achar, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J, These four consolidated appeals are brought, by special leave, against the order of the High Court of Gujarat dated November 27, 1961 summarily dismissing four Special Civil Applications Nos. 704 to 707 of 1961 which had been filed by the appellants under Art. C.27 of the Constitution of India for quashing the order of the Gujarat Revenue Tribunal dated July 18, 1961.\n\nThe appellants had applied for compensation to the Jagir Abolition Officer, Baroda under s. 13 of the Bombay Merged Territories & Areas (Jagirs Abolition\\ Act. 1953, hereinafter referred to as the 'Jagirs Abolition Act', in respect of their proprietary jagirs. Against the a\\\\ ard of compensation made by the Jagir Abolition Officer the <:ppcllants preferred appeals under s. 16 of\n\nthe Jagirs Abolition Ad. Although these appeals were filed before D the Revenue. Tribunal at Bombay. the appeals were transferred. on the bifurcation of Bombay State. to the Gujarat Revenue Tribunal at Ahmedabad. hereinafter called the Tribunal'. All these appeals were ultimately dismiscd by the Tribunal for non-prosecution on account of non-appear; ince of the advocate of the appellants.\n\nAgainst the dismissal of the appeals for non-prosecution the appellants liled applications for restoration before the Tribunal on May E 6, 1961. The appellants contended that since the orders passed dis missing the appeals were received by them on April 9 and April 20. 1961, the restitution applications tiled on May 6, 1961 were within 30 days of the receipt of the order of dismissal and hence the applications for restoration were made in time under Regulation 21 of the Bombay Re, enue Tribunal Regulations. The appellants also prayed that the applications for restoration should be allowed F\n\na~ they were prevented for sufficient cause from appearing at the hearing of the appeals. The Tribunal rejected the applications holding that they were barred under Art. 168 of the Limitation Act read with Regulation 55 and 0.41. rr. 17 and 19 of the Civil Procedure Code. The view taken by the Tribunal was that the applications for restoration shnuld have been made within 30 days from the date of the order of dismissal. As the orders of dismissal was G made on February I. 2 and 3, 1961 and the applications for restoration were made only on May 6. 1961. the Tribunal held that they were time-barred. Aggrieved by the order of dismissal of the restoration applications the appellants moved the High Court of Gujarat under Art. 2n of the Constitution of India but their applications were dismissed i11 /iminc.\n\nB The first question for consideration is whether the orders of the Tribunal dated February I, 2 and 3, 1961 are illegal and ultra\n\nv. s. NAIK v. GUJARAT (Ramaswaini, J.) 141\n\nA vires because the Tribunal dismissed the appeals for non-prosecution and there was no decision of the appeals on merits. It was contended that it was obligatory on the part of the Tribunal to decide the appeals on merits and record its decision in view of s. 17 of the Jagirs Abolition Act which states as follows: -\n\n\"17. (]) The Bombay Revenue Tribunal shall, after giving notice to the appellant and the State Government, decide the appeal and record its decision.\n\n(2) In deciding an appeal under this Act the Bombay Revenue Tribunal shall exercise all the powers which a court has and shall follow the same procedure which a Court follows in deciding appeals from the decree or order of an original Court under the Code of Civil Procedure, 1908.\"\n\nIn our opinion, the contention put forward by the appellants is well-founded and must be accepted as correct. Section 13 of the Jagirs Abolition Act provides that any jagirdar entitled to compensation under section 11 or 12 shall, on or before the. 31st day of July 1958 apply in writing to the Collector for determining the amount of compensation payable to him under the said section.\n\nSestion 13(2) states that on receipt of an application under sub-s. (!), the Collector shall, after making formal enquiry in the manner provided by the Code, make an award determining the amount of compensation. Section 14 of the Jagirs Abolition Act states as follows:\n\n\"14. ([) If any person other than a jagirdar is aggrieved by the provisions of this Act as abolishing, extinguishing or modifying any of his rights to, or interest in property and if compensation for such abolition, extinguishment or modification has not been provided for in the provisions of this Act, such person may apply to the Collector for compensation.\n\n(2) The application under sub-section (!) shall be made to the Collector in the prescribed form on or before the 31st day of July 1958. The Collector shall, after holding a formal inquiry in the manner provided by the Code, make an award determining the compensation in the manner and according to the method provided for in sub-section (I) of section 23 and section 24 of the Land Acquisition Act, 1894.\"\n\nSection 15 states that \"every award made under section 13 or 14 shall be in the form prescribed in section 26 of the Land Acquisition Act, 1894 and the provisions of the said Act shall, so far as may be, apply to the making of such award\". Section 16 provides\n\n142 Sl'PRnrs COURT lt>:POll'f8 [19Gj Sl'PP. s.c.R.\n\nfor an appeal against the Collector's award and is to the following effect:\n\n\"16. An appeal shall lie against an award of the Collector to\n\nA ..\n\nthe Bombay Revenue Tribunal constituted under the • Bombay Re, enue Tribunal Act, 1957 notwithstanding anything contained in the said Act.\" B Section 20 provides for the !inality of the award and of the decision of the Revenue Tri bum! and reads as follows:\n\n\"20. The award made by the Collector subject to an appeal to the Bombay Revenue Tribunal and the decision of the Bombay Revenue Tribunal on the appeal shall be final and conclusi\\ e and shall not be questioned in any suit or proceeding in any Court.\" C On a consideration of the language of s. 17(!) of the Jagirs Abolition Act and in the context of s. 20 of the Jagirs Abolition Act we are of the opinion that it is obligatory on the part of the Tribunal to decide an appeal 011 merits even though there is default in the appearance of the appellants and to record its decision regarding the merits of the appeal. If an appeal is dismissed for want of prose- D cution it cannot he said that the Tribunal has 'decided the appeal' and 'recorded its decision' within the meaning of s. 17 of the Jagirs Abolition Act. It cannot be supposed that the legislature intended by the word decide' in s. 17(!) to mean 'dispose of the appeal or to put an end to the appear. It is important to notice that s. 20 of the Jagirs Abolition Act makes a decision of the Tribunal in appeal as final and conclusive ; rnd not to be questioned in any E suit or proceeding in any Court. In the context of s. 20 and in view of the express language of s. 17( I) of the Jagirs Abolition Act we are of opinion tha1 the Tribunal has no power to dismiss an appeal for non-prosecution but it is obligatory on its part to decide the appeal on merits and to record its decision even though there is default on the part of the appellant to appear in the appeal.\n\nThe second question of law for consideration in this case is F whether. on a proper Cl'llStruction of Regulations 19. 20 and 21 of the Bomba} Revenue Tribunal Regulations. 1958. the Tribunal was right in taking the view that the applications for restoration made by the appellants were barred hy limitation.\n\nSection 14 of the Bombay Revenue Tribunal Act (Bombay Act No. XXXI of 1958) deals with the practice and procedure to G be followed by the Gujarat Revenue Tribunal. Section 14 states: _>.. \"14. (!) Subject to the provisions of this Act and to the previous approval of the State Government. the President may make regulations for regulating the practice and procedure of the tribunal. including the award of costs by 1he Tribunal, lhe levy of any B process fee, the right of audience before the Tribunal. the sittings of the members either singly, or in\n\n• A\n\nv. s. NAIK v. GUJARAT (Rarnaswanii, J.) 143\n\nbenches constituted by the President or such member as is authorised by him from amongst the members of the Tribunal, the disposal by the Tribunal, or a bench thereof, of any proceedings before it notwithstanding that in the course thereof there has been a change in the persons sitting as members of the Tribunal or bench; and generally for the effective exercise of its powers and discharge of its functions under this Act. Where any members sit singly or where any benches are constituted, such member or bench shall exercise and discharge all the powers and functions of the Tribunal.\n\n(2) The regulations made under this section shall be published in the Official Gazette.\" Regulation 19 deals with procedure to be followed by the Tribunal in case of non-appearance of parties. Regulation 19 is to the following effect:\n\n\"19. (l) If on the date fixed for hearing or any other subsequent clay to which the hearing may be adjourned, the appellant or applicant does not appear either in person o;- through his agent or lawyer when the appeal or application is called for hearing, the Tribunal may dismiss the appeal or c pplication or may decide it on merits, after hearing the respondent or his agent or lawyer, if present.\n\n(2) If on the date fixed for hearing or on any other subsequent day to which the hearing may be adjourned, the respondent or opponent, as the case may be, does not appear in person or through his agent or lawyer when the appeal or application is called for hearing, the Tribunal may decide the same on merits, after hearing the appellant or applicant or his agent or lawyer ..................... \".\n\nRegulation 20 provides for restoration of an appeal or application and reads as follows :\n\n\"20. If any of the parties was absent on the date of the hearing, either preliminary or final, and the appeal or application was heard and declared ex-parte, the party concerned may apply for restoration of the appeal or application, G as the case may be, and if the party satisfies the Tribunal that he had no notice of the date of the hearing or that he was prevented by sufficient cause from appearing when the appeal or application was called for hearing, the Tribunal may restore the appeal or application to its file, provided that where the other party had appeared in the H appeal or application such party shall be given notice and an opportunity of being heard before the order for restoration of the appeal or application is made.\"\n\n144 bLl'R£la: COURT RHURTS (19G6j SUPP.\n\nS.C. t,\n\nRegulation 21 is to the following effect:\n\n\"21. (!) An application for restoration of an appeal or application made under regulation 20 shall be filed within thirty days from the date of the receipt of the order or dismissal of the appeal or application and shall be accompanied by-\n\n(al a certified copy of the Tribunal's order;\n\n(b) the decision or order (either in original or a certified copy thereof! iu respect of which appeal or application sought to be restored is made;\n\n(c) if the decision or order referred to in clause (b)\n\nis itself made in appeal against any decision or c order. then also such latter decision or order either in original or a certified copy thereof; and\n\n(d) as many copies of the restoration application as there are respondents or opl??nents. .. ........\n\nRegulat; on 55 states that m any matter not provided for in the Regulations the Tribunal shall follow the procedure, as far as it is D applicable. laid down in the Code of Civil Procedure, 1908.\n\nFrom the scheme , if the Regulations it is apparent that under Regulation 19(1) it is open to the Tribunal to dismiss an appeal for non-prosecution in a case where the appellant does not appear either in person or through his agent or lawyer. It is also open to the Tribunal in such a case to hear the respondent to the appeal E and decide it on merit>. Regulation 19(21 contemplates a case\n\nwhere the respondent fails to appear and even so it is open to the Tribunal to hear the appellant and then decide the case on merits.\n\nRegulation 20 which provides for restoration of the appeal is a consequential regulation to Regulation 19. One of the conditions for invoking the provisi<ms of restoration under Regulation 20 is that \"the appeal or application was heard and decided ex-parte''.\n\nF On behalf uf the respondent it is contended by Mr.\n\nAsoke Sen that Regulation 20 only applies to cases contemplated by the latter part of Regulation 191 Ii and 19(2) and not to cases of dismissal for want of prosecution under the first part of Regulation J 9(1). We\n\narc unable to accept this submission as correct. In our opinion. the language of Regulation 20. l>n its true interpretation. applies not only to a case where the appeal has been decided on merits but G also tu a case where the appeal has been dismissed for want of prosecution under Regulation 191 Ii. The rc:tson is that in Regulation 19(1) and I 9(2i the legislative authority uses the words \"decide it on merits\" but in Regulation 20 the cxpcssion used is \"decided ex-parte\" and we see no reason, either in the language or context of Regulation 20. why it should not include in its scope and ambit H an application for restoration of an appeal dismissed for nonprosccution as also an application for restoration of appeal decided\n\nv. s. :l'AIK v. GUJARAT (Raniaswami, J.) 145\n\non merits under Regulation 19(1). If the view that we have taken as to the interpretation of Regulation 20 is correct, it follows that Regulation 21 applies to the present case and the period of limitation prescribed by that Regulation being 30 days from the date of receipt of the order of dismissal of the appeal, the applications of restoration made by the appellants in all the four cases were well within the period of limitation prescribed by Regulation 21. It follows. therefore, that the Tribunal committed an error of law in dismissing the applications of restoration m<ide by the appellants in all the four appeals.\n\nFor these reasons we allow these appeals, set aside the order C of the Gujarat High Court dismissing Special Civil Applications 704 to 707 of 1961 and hold that the order of the Gujarat Revenue Tribunal dismissing the restoration applications Nos. GRT.D. 10 to 13 of 1961 dated July 18, 1961 is defective in law and must be set aside. We also hold that the orders of the Gujarat Revenue Tribunal dismissing Appeals Nos. REV.A. 27. 28, 29 and 30 of 1960 are ultra vires and illegal and must be set aside and order that these D four appeals should go back to the Gujarat Revenue Tribunal for being reheard and dealt with in accordance with law. The parties will bear their own costs up to this stage.\n\nA ppea/s allowed •", "total_entities": 48, "entities": [{"text": "A\n\nVAJESINGH SALAMBHAI NAIK & ORS", "label": "PETITIONER", "start_char": 2, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "VAJESINGH SALAMBHAI NAIK & ORS", "offset_not_found": false}}, {"text": "STATE OF GUJARAT & ANR", "label": "RESPONDENT", "start_char": 39, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT & ANR", "offset_not_found": false}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 80, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 97, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "ss. 13, 17(1), 20", "label": "PROVISION", "start_char": 181, "end_char": 198, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Revenue Tribunal Act, 1958", "label": "STATUTE", "start_char": 315, "end_char": 348, "source": "regex", "metadata": {}}, {"text": "s. 13", "label": "PROVISION", "start_char": 519, "end_char": 524, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Revenue Tribunal Act, 1958", "statute": "the Bombay Revenue Tribunal Act, 1958"}}, {"text": "Art. 227", "label": "PROVISION", "start_char": 1088, "end_char": 1096, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Revenue Tribunal Act, 1958", "statute": "the Bombay Revenue Tribunal Act, 1958"}}, {"text": "Bombay Revenue Tribunal Act, 1958", "label": "STATUTE", "start_char": 1433, "end_char": 1466, "source": "regex", "metadata": {}}, {"text": "s. 20", "label": "PROVISION", "start_char": 1523, "end_char": 1528, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Revenue Tribunal Act, 1958", "statute": "the Bombay Revenue Tribunal Act, 1958"}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 1569, "end_char": 1577, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Revenue Tribunal Act, 1958", "statute": "the Bombay Revenue Tribunal Act, 1958"}}, {"text": "Bombay Revenue Tribunal Act, 1958", "label": "STATUTE", "start_char": 2054, "end_char": 2087, "source": "regex", "metadata": {}}, {"text": "S11", "label": "PROVISION", "start_char": 2877, "end_char": 2880, "source": "regex", "metadata": {"linked_statute_text": "Bombay Revenue Tribunal Act, 1958", "statute": "Bombay Revenue Tribunal Act, 1958"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 3340, "end_char": 3361, "source": "regex", "metadata": {}}, {"text": "s. 13", "label": "PROVISION", "start_char": 3528, "end_char": 3533, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Jagirs Abolition Act", "label": "STATUTE", "start_char": 3637, "end_char": 3657, "source": "regex", "metadata": {}}, {"text": "s. 16", "label": "PROVISION", "start_char": 3812, "end_char": 3817, "source": "regex", "metadata": {"linked_statute_text": "Jagirs Abolition Act", "statute": "Jagirs Abolition Act"}}, {"text": "Art. 168", "label": "PROVISION", "start_char": 4979, "end_char": 4987, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 4995, "end_char": 5009, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 2", "label": "PROVISION", "start_char": 5540, "end_char": 5546, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 5555, "end_char": 5576, "source": "regex", "metadata": {}}, {"text": "s. 17", "label": "PROVISION", "start_char": 6062, "end_char": 6067, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 6526, "end_char": 6555, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 13", "label": "PROVISION", "start_char": 6669, "end_char": 6679, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "section 11", "label": "PROVISION", "start_char": 6766, "end_char": 6776, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "Section 14", "label": "PROVISION", "start_char": 7159, "end_char": 7169, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure, 1908", "statute": "the Code of Civil Procedure, 1908"}}, {"text": "section 23", "label": "PROVISION", "start_char": 7924, "end_char": 7934, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 7939, "end_char": 7949, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 7957, "end_char": 7983, "source": "regex", "metadata": {}}, {"text": "Section 15", "label": "PROVISION", "start_char": 7987, "end_char": 7997, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "section 13", "label": "PROVISION", "start_char": 8034, "end_char": 8044, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "section 26", "label": "PROVISION", "start_char": 8086, "end_char": 8096, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 8104, "end_char": 8130, "source": "regex", "metadata": {}}, {"text": "Section 16", "label": "PROVISION", "start_char": 8227, "end_char": 8237, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "Tribunal Act, 1957", "label": "STATUTE", "start_char": 8514, "end_char": 8532, "source": "regex", "metadata": {}}, {"text": "Section 20", "label": "PROVISION", "start_char": 8588, "end_char": 8598, "source": "regex", "metadata": {"linked_statute_text": "Tribunal Act, 1957", "statute": "Tribunal Act, 1957"}}, {"text": "s. 17(!)", "label": "PROVISION", "start_char": 8996, "end_char": 9004, "source": "regex", "metadata": {"linked_statute_text": "Tribunal Act, 1957", "statute": "Tribunal Act, 1957"}}, {"text": "s. 20", "label": "PROVISION", "start_char": 9055, "end_char": 9060, "source": "regex", "metadata": {"linked_statute_text": "Tribunal Act, 1957", "statute": "Tribunal Act, 1957"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 9485, "end_char": 9490, "source": "regex", "metadata": {"linked_statute_text": "Tribunal Act, 1957", "statute": "Tribunal Act, 1957"}}, {"text": "s. 17(!)", "label": "PROVISION", "start_char": 9595, "end_char": 9603, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 20", "label": "PROVISION", "start_char": 9698, "end_char": 9703, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 20", "label": "PROVISION", "start_char": 9886, "end_char": 9891, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17( I)", "label": "PROVISION", "start_char": 9931, "end_char": 9940, "source": "regex", "metadata": {"statute": null}}, {"text": "Revenue Tribunal Regulations", "label": "STATUTE", "start_char": 10376, "end_char": 10404, "source": "regex", "metadata": {}}, {"text": "Section 14", "label": "PROVISION", "start_char": 10543, "end_char": 10553, "source": "regex", "metadata": {"linked_statute_text": "Revenue Tribunal Regulations", "statute": "Revenue Tribunal Regulations"}}, {"text": "Section 14", "label": "PROVISION", "start_char": 10707, "end_char": 10717, "source": "regex", "metadata": {"linked_statute_text": "Revenue Tribunal Regulations", "statute": "Revenue Tribunal Regulations"}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 14613, "end_char": 14642, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Asoke Sen that Regulation", "label": "STATUTE", "start_char": 15488, "end_char": 15513, "source": "regex", "metadata": {}}]}
{"document_id": "1966_1_146_153_EN", "year": 1966, "text": "PATEL RAMBRAI BACHARBHAI & ANR.\n\nPATEL DAHYABHAI BECHARBHAI & Al'iR.\n\nApril 4, 1966\n\n[K. SUBBA RAO A~D V. RA~ASWAMI, JJ.}\n\nBombay r1gricult,, rul Debtors Ilelief Act (28 of 194i), ss. 46 and 56-Scope of.\n\nThe father of the first respondent sold his lands to the second\n\nrespondent but continued to be in possession. The second respondent C sold them to the appellants who were put in possession in 1934. In August 1945, the first respondent filed a pe!lbion against the second respondent, before the Debt Adjustment Board, under ss. 17, 18 and 45 of the Bombay Agricultural Debtors Relief Act. 1939, within the time prescribed by s. 17, alleging that the transaction with the second respondent was a mortgage and that the debt was liable to be adjusted under the Act The first appellant was impleadcd as a party to the petition in December 1945, beyond the time specified in s. 17.\n\nD No appeal was filed <1gainst that order. and in 1947, the Board dispos<?d of the petition for adjustment of debt by directing the second respondent to render occounts. He appealed and, pending the appeal, the 1939 Art was rcpt>aled by the Bombay Agricultural Debtors Re- 1; ef Act of 1947. In 1949. the appellate Court set aside the Board's order and remanded the case to the C1v1l Judge, for deciding the na ture of the transaction. because. under the 1947 Act. the Board was dissolved an:i its jurisdict'on was vested in the Civil Judge. Jn 1950,\n\nthe first respondent's application to the Civil Judge for impleading E the second respondent also as u party to the petition for adjustment of the debt. was allowed. and thercaf1er, the matter was disposed of on merits.\n\nOn the questions: (i) Whether the orders impleading the appellants were without jurndiction. and (ii) whether the appellants had acquired title tc> the lands by adverse possession,\n\nHELD; fi) The orders were not without jurisdiction.\n\nUnder the• rcpcald Art. if a part,- was added beyond the period prescribed under s. 17 of the Act. if he was added as a necessary party to a petition filt>d in time. the said order might be improper but not without jurisdiction. [151 C-D]\n\nUnder s. 5G of the 1947 Act. origrnal and appcilate proceedings initiated under the repealed Act but pending at the time the 1947 Act came into force \\\\'ill have to be disoosed of in arcordanre with the substantive and procedural sections of the 1947 Act. Under s. 46 G of the 1947 Act. tle court is empo1,1, crcd. in a suitable case. to add parties under 0.1. r. Ill. Civil Procedur,• Code. and they mcv be added irrespective of th .. lime limit prescribed under the repealed Act or the time specified m ss. 4 and 24 of the 1947 Ad. [152 A-Cl '\n\nCase law referred to. . (i1l The appellants had not acquired any title bv adverse po; sess10n. as the pet1t:on fnr adjustment of debt was filed .., .. ; thin 12 years H from the dateof their occupation of the suit lands. [153 F]\n\nRAMB!llI v. DARYABHAI (Subba Rao, J.) 147\n\ni A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 386 of\n\n~ : ' 1964.\n\n:ii\n\nAppeal by special leave from the judgment and order dated January 10, 1962 of the Gujarat High Court in Civil Revision Application No. 158 of 1960.\n\n---C--.._\n\nS. V.\n\nGupte, Solicitor-General, S. H. Sheth .and\n\nM. V.\n\n+ D\n\nGoswami, for the appellants.\n\nG. L. Sanghi and A. G. Ratnaparkhi, for respondent No. I.\n\nThe Judgment of the Court was delivered by\n\nSobba Rao, J. This appeal by special leave is directed against the order of the Gujarat High Court in Civil Revision Application No. 158 of 1960 confirming that of the District Judge, Kaira, holding that the lst respondent herein was a debtor and directing the Civil Judge, Kapadvanj, to adjust the debt under the provisions of the Bombay Agricultural Debtors Relief Act.\n\nThe relevant facts may be briefly stated.\n\nThe father of the first respondent owned three pieces of land bearing Survey Nos. 93, 102/3 and 125I1 in village Chikhlod, Taluka Kapadwanj, District Kaira in the State of Gujarat. On June 9, 1933, he sold the same by an oral vardi to respondent No. 2 for a sum of Rs. 2,701/- but continued to be in possession thereof. On April 7, 1934, the 2nd respondent sold the said lands to the I st appellant by an oral vardi for Rs. 2,521 I - and the !st appellant got possession thereof on the said date. In a partition that was effected in the joint family of the I st appellant. survey No. 93 went to the share of the 2nd appellant and the remaining two lands fell to the share of the !st appellant. The appellants have been in possession of the said lands from April 7, 1934.\n\nOn August 3, 1945, the 1st respondent filed an application before the Debt Adjustment Board under s. 17. read withs. 18 ands. 45 of the Bombay Agricultural Debtors Relief Act, 1939. To that application only the 2nd respondent was made a party. His case was that his father had money dealings with the 2nd respondent and in consideration of past debts his father had sold the said lands to the 2nd respondent in 1933 by way of an oral sale with a condition of reconveyance of the said lands to the vendor and, therefore, the said debt was liable to be adjusted under the provisions of the said Act. The 2nd respondent denied that he had any money dealings with the father of the 1st respondent and stated that the lands were not in his possession.\n\nOn December 4. 1945, the respondent made an app]jcation before the Debt Adjustment Board for adding the appellants as respondents to the petition. It appears from the record that only the 1st appellant was made a party-respondent to\n\n14A 8t\"l'HE\\1F 00\\IRT REP<'RT:i ! 19tlfl1 SI\"PP.\n\n~ ,(' R\n\nthat application.\n\nOn April 29, 1947, the said Board held that the sales in favour of the 2nd respondent and the appellants were invalid and directed the 2nd respondent to render the accounts.\n\nAgainst that order. the 2nd respondent preferred an appeal to the District Judge at Na<liad.\n\nOn May 27. 1947, Bombay Agricultural Debtors Relief Act 28 of 1947. hereinafter called the new Act. came into force and under s. 56(2) thereof the Bombay Agricullllral Debtors Relid Act. 1939, hereinafter called the repealed Act was repealed.\n\nOn April 14. 1949 the learned District Judge. Kaira. set aside the order of the Board and remanded the case to the court of the Civil Judge (Junior Division) at Kapadwanj with a direction to decide afresh the question of the nature of the said transaction in accordance with law.\n\nIt was remanded to the said Civil Judge as under the new Act the Debt Adjustment Board was dissolved and its jurisdiction was vested on the Civil Judge.\n\nOn April 24. 1950. the 1st respondent made an application before the Civil Judge for adding the 2nd appellant as a partyrespondent and that petition was allowed on August 21, 1950. On September 29. 1953. the Civil Judge dismissed the petition as not maintainable; but on appeal the District Judge, Kaira, allowed the appeal and remanded the matter to the Civil Judge for disposal according to law. The appellants and the 2nd respondent preferred a revision to the High Court. hut that was summarily rejected.\n\nAfter the remand. the Civil Judge held that the transaction was not a mortgage and th.: appellants had acquired title lo the lands by adverse possession.\n\nAgainst that order the !st respondent pre ferrcd an appeal to the District Judge, who. by his order dated October 16. 1958. held that the mortgage subsisted and that the ap pellants had not acquired title to the said lands by adverse possession. In hat view. he remanded the case to the Civil Judge for adjustment of the debts. On revision the High Court of Gujarat accepted the finding of the learned District Judge and dismissed the revision. Hence the present appeal.\n\nThe learned Solicitor-General, appearing for the appdlanls. raised before us the following four points: 0) Under the repealed Act the Board would have jurisdiction to entertain an application\n\nfor adjustment of debts. if it was filed within 18 months from the date of the appointment of the Board under s. 4 of the said Act. i.e..\n\nG on or before October 31. 1945. and. as no such application was filed\n\neither against the 1st appellant or against the 2nd appellant before > that date. the order of the Board adding the Isl appellant on December 4. 1945, and the order of the Civil Judge adding the 2nd appellant on August 21. 1950 were without juriS<tiction a;1d. therefore. void; as the said orders were without jurisdiction. the appellants had acquired a vested interest in the properly and the new Act does H not affect the said right. (2) The appellant had acquired a right to the said lands by adverse possession. t3l The application to the\n\nBoard to investigate ihc nature of the transaction was not competent. And (4) The benefit under s. 55(6)(b) of the Transfer of Property Act is available only to a buyer under a valid transaction and not to a buyer under a transaction which is void at the very inception.\n\nAt the outset it may be mentioned that the 4th point was sought to be raised before the High Court for the first time and the High Court refused to go into that matter. We cannot, therefore, allow the appellants to raise that point before us.\n\nThe third point was also not raised before the High Court and we do nol see any justification for allowing the appellants to press the same before us.\n\nWe shall, therefore, confine our judgment to the first two points raised.\n\nTo appreciate the rival contentions of the parties it will be convenient to read at this stage the relevant provisions of both the repealed and new Acts.\n\nThe Bombay Agricultural Debtors Relief Act, 1939.\n\n&ction 17. (1) Within eighteen months from the date on which a Board is established under section 4, any debtor may make an application to the Board for the adjustment of his debts under this Act as hereinafter provided:\n\n(3) An application under this section shall be made to the Board established for any local area if the debtor or any of the debtors who is a party to the application ordinarily resides in such area, or to the Board established for the class of debtors, if the debtor or any of the debtors who is a party to the application belongs to the said class.\n\nSection 7.(1) Subject to the provisions of this Act and any rules, the Board shall have the same powers as are vested in civil courts under the Code of Civil Procedure,\n\n1908, when trying a suit and in particular in respect of the following matters: -\n\n(a) joining any necessary or proper parties.\n\nThe Bombay Agricultral Debtors Relief Act, 1947.\n\nSection 4. (!) Any debtor ordinarily residing in any local area for which a Board was established under section 4 of the repealed Act on or after the 1st February H 1947, or his creditor may make an application before the 1st August 1947 to the Court for the adjustment of his debts.\n\n&LPREME C01.'RT REPORTS [lr66J serP. s.c.~.\n\nSection 46. Save as otherwise expressly provided in this Act, the pro\\'isions of the Code of Civil Procedure.\n\n1908, shall apply to all proceedings under this Chapter.\n\n*Provided that the Court may in a proper case and on such terms as may appear to it to be just, exercise its powers to add or strike out parties under rule 10 of Order\n\nI of the said Code in any proceeding pending before it under section 4 or 24, notwithstanding the fact that such addition, or strikin~ out of parties is to be made after the date specified in scdion 4 or 24. as the case may be, has elapsed.\n\n(*This proviso wa.s added by Bombay Act 37 of 1950. s. 9).\n\nSection 56. (2) The Bombay Agricultural Debtors Relief Act. 1939, is repealed.\n\nAll Boards established under section 4 of the repealed Act shall be dissolved: Provided that-\n\n(a) all proceedings pending before any such Board at the date when this Act comes into force shall be continued and disposed of by the Court under this Act as if an application under section 4 had been made to the Court in respect therefor;\n\n(b) all awards made. confirmed or modified under the repealed Act shall be deemed to have been made, confirmed or modified under this Act as if this Act was in force at the date when the said awards were made, confirmed or modified, as the case may be;\n\n(c) all appeals pending before any Court under the repealed Act against the decision. order or award of such Board shall be continued and disposed of as if the said appeals were filed under the provisions of this Act; and\n\n(d) all appeals which could have been filed under the repealed Act against any decision. order or award of such Board but which could not be filed only by reason of the fact that the said Act was repealed by this Act shall when filed before a competent court be deemed to have been filed under the provisions of this Act and shall be disposed of accordingly.\n\nThe impact of the provisions of the new Act on those of the repealed Act in the context of the present enquiry may be stated thus: Under the repealed Act an application could be filed before the appropriate Board for the adjustment of a debt within the time prescribed under s. 17 thereof. Under s. 7 thereof the\n\nR(lJBHAI v. DAHYABHAI (Siibba Rao, J.) 151\n\nBoard had the power to join any necessary or proper parties. The said power was coterminus with that of a civil court under the Code of Civil Procedure.\n\nOrder I, r. 10, of the Code of Civil Procedure enables the court in a suitable case to strike out or add parties; and under sub-s. (5) thereof, subject to the provisions of s. 22 of the Indian Limitation Act, 1877, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.\n\nUnder the repealed Act therefore, if a party was added, the proceedings as against him should be deemed to have been taken only on the service of summons. If a party was added subsequent to the period prescribed under s. 17 of the repealed Act, it could be objected that the proceedings against the party so added was beyond the period prescribed under s. 17. But nonetheless if he was added as a necessary party to a petition filed in time, though the said order might be improper, it could not be said that the court acted without jurisdiction. If it was an illegal order, it could be set aside by an appropriate order in appeal.\n\nUnder s. 56(2) of the new Act the 1939 Act was repealed and all the Boards established under the repealed Act were dissolved. The three provisos to sub-s. (2) of s. 56 of the new Act prescribed for the continuity of the proceedings initiated under the repealed Act. Under the first proviso, all proceedings pending before any such Board shall be continued before the court as if an application under s. 4 of the said Act had been made to the court.\n\nThis proviso introduces a fiction; and under that fiction, if an application filed before the Board under s. 17 of the repealed Act was pending at the time the new Act came into force, it shall be continued as if it were an application filed under s. 4 of the new Act. Under the third proviso, which deals with pending appeals, appeals pending before any court under the repealed Act shall be continued and disposed of as if they were appeals under the new Act. This proviso also introduces a fiction, namely, the appeal should be deemed to be an appeal under the new Act. The expression \"under the Act\" means under the provisions of the Act.\n\nThis expression emphasizes the fact that pending appeals shall be deemed to be appeals under the (new) Act and, therefore, shall be disposed of by applying the provisions thereof. The fourth proviso deals with appeals to be filed against the orders under the repealed Act; under the G said proviso those appeals when presented after the new Act came into force shall be deemed to be appeals from the decision or orders or awards of courts under the new Act and shall be disposed of accordingly. In short, the old Act was repealed and the proceedings, original or appellate, are all deemed to be proceedings under the new Act and they should be disposed\n\nH of in accordance with the substantive and procedural sections of the new Act. If that be the interpretation of s. 56 (2) of the new Act, to such a proceeding s. 46 is immediately attracted. Under\n\nL/S5SCI-12 . .\n\nlli2 Scl'REME COURT RRl'IMTS (1006] RLl'l'. 8.C, R.\n\ns. 46 of the new Act. the court is empowered in a suitable case to add parties under Order I, rule I 0, of the Code of Civil Procedure, notwithstanding the fact that the addition of parties is made after the dates specified in s. 4 or 24, as the case may be, have expired.\n\nBy reason of the aforesaid fiction. a proceeding taken under the repealed Act is deemed to be a proceeding under the new Act and, therefore. a party may be added after the prescribed period.\n\nTo summarize: After the new Act was passed there are two types of proceedings, namely. (i) proceedings initiated under the repealed Act but pending at the time the new Act came into force; and (ii) proceedings taken under the new Act. Both the proceed\n\nings will have to be disposed of under the provisions of the new Act, that is to say, both the substantive and the procedural sections of the new Act would equally apply to both classes of proceedings.\n\nSome of the decisions cited at the Bar have a direct bearing on the question raised before us.\n\nA division Bench of the Born bay High Court in Vishwanath Mahadev Adhikari v. Krishnaji Ramchandra Bodas(') construed the scope of the three provisos to s. 56(2) of the new Act. It was contended before the said Bench that proviso 2 had no retrospective effect and the appeals which were pending should be disposed of according to the repealed Act and not according to the new Act. Chagla, C. J., adverting to that argument. speaking for the Court, observed thus:\n\n\"Further, in our opinion, the language used in proviso 2 is fairly clear and explicit and makes this proviso retros pective in its effect. What the Legislature says ; s that the appeals shall be continued and disposed of as if they were appeals under this Act, which clearly means that all the provisions of this Act shall apply to the appeals which are pending. The appeal Court is asked to treat the appeals as if the new Act was in force and not the old Act, and in disposing of those appeals the appeal Court has to consider the substantive Jaw as well as the procedural law brought into force by Act XXVlll (28) of I 947 .\" Another division Bench of that Court in Hiraman Ratan v. P11r shollam Deorao(') expressed the same view. Therein it held that the language of the provisos to s. 5612) of the new Act clearly gave retrospective effect to all the provisions of the new Act including the substantive provisions and not merely to the procedural provisions thereof. In Basarnnappa Shivappa v. Neelappa Adiveppa(').\n\nGajendragadkar. J .. construed s. 46 of the new Act and held that parties could be added in a proper case without considerations of delay.\n\n('I A.T, R. 1949 Boru. 390,1!11, (') A.T.R 1953 nom. 200, (') A.T.R. 1966 Dom, 201.\n\nA •\n\nF •\n\nThe views expressed in these decisimi.s accord with those expressed by us earlier.\n\nWith this legal position in mind, let us look at the facts of the present case. The application was filed by the 1st respondent against the 2nd respondent under s. 17 of the repealed Act before the prescribed time, i.e., October 31, 1945. The 1st appellant was added by the Board itself on December 4, 1945; and the 2nd appellant was added by the Civil Judge on August 21, 1950. As the appeal against the order of the Board was pending at the time the new Act came into force, under proviso (c) to s. 56(2) of the new Act that appeal had to be disposed of under the provisions of the\n\nnw Act and after remand the application had likewise to be disposed of under the provisions of the new Act.\n\nAt that time the civil Court had ample jurisdiction to add the appellants as parties irrespective of the time limit prescribed under the repealed Act.\n\nIf so, it cannot be said that the Civil Judge acted without jurisdiction in disposing of the petition as if it was filed under the new Act. There are, therefore, no merits in the first contention.\n\nThere are no merits in the second contention either. Some relevant facts may be recapitulated. The father of the 1st respondent sold the lands to the 2nd respondent on June 9, 1933. The 2nd respondent sold the same to the l st appellant on April 7, 1934, and he was put in possession on the same day. From June 9, 1933 to April 7, 1934 the father of the 1st respondent was in possession. The application for adjustment of the debt was made on August 3, 1945. From April 7, 1934 to August 3, 1945 the appellants were in possession of the disputed lands and the said period of occupation of the lands by the appellants was less than 12 years.\n\nBut it was contended that the 1st respondent was in possession of the lands as a tenant of the !st appellant between June 9, 1933 to April 7, 1934 and, therefore, the said period should be tacked on to the period of adverse possession by the appellants. But the High Court found, agreeing with the District Judge, that the appellants failed to prove that the !st respondent was in possession of the lands as a tenant during that period. 1f so, it follows that the appellants had not acquired any title to the suit property by adverse possession.\n\nIn the result, the appeal is dismissed with costs.\n\nAppeal dismissed.\n\nLjS5SCI--12(a)", "total_entities": 60, "entities": [{"text": "ANR.\n\nPATEL DAHYABHAI BECHARBHAI & Al", "label": "RESPONDENT", "start_char": 27, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "PATEL DAHYABHAI BECHARBHAI & ANR", "offset_not_found": false}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 86, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "K. 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1972, "end_char": 1977, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5G", "label": "PROVISION", "start_char": 2137, "end_char": 2142, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 46", "label": "PROVISION", "start_char": 2393, "end_char": 2398, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 4 and 24", "label": "PROVISION", "start_char": 2636, "end_char": 2648, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 4670, "end_char": 4675, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Agricultural Debtors Relief Act, 1939", "label": "STATUTE", "start_char": 4708, "end_char": 4752, "source": "regex", "metadata": {}}, {"text": "Bombay Agricultural Debtors Relief Act", "label": "STATUTE", "start_char": 5918, "end_char": 5956, "source": "regex", "metadata": {}}, {"text": "s. 56(2)", "label": "PROVISION", "start_char": 6027, "end_char": 6035, "source": "regex", "metadata": {"linked_statute_text": "Bombay Agricultural Debtors Relief Act", "statute": "Bombay Agricultural Debtors Relief Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 8020, "end_char": 8024, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 55(6)(b)", "label": "PROVISION", "start_char": 8761, "end_char": 8772, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 8780, "end_char": 8804, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bombay Agricultural Debtors Relief Act, 1939", "label": "STATUTE", "start_char": 9567, "end_char": 9611, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 9704, "end_char": 9713, "source": "regex", "metadata": {"linked_statute_text": "The Bombay Agricultural Debtors Relief Act, 1939", "statute": "The Bombay Agricultural Debtors Relief Act, 1939"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 10187, "end_char": 10196, "source": "regex", "metadata": {"linked_statute_text": "The Bombay Agricultural Debtors Relief Act, 1939", "statute": "The Bombay Agricultural Debtors Relief Act, 1939"}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 10331, "end_char": 10354, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bombay Agricultral Debtors Relief Act, 1947", "label": "STATUTE", "start_char": 10490, "end_char": 10533, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 10536, "end_char": 10545, "source": "regex", "metadata": {"linked_statute_text": "The Bombay Agricultral Debtors Relief Act, 1947", "statute": "The Bombay Agricultral Debtors Relief Act, 1947"}}, {"text": "section 4", "label": "PROVISION", "start_char": 10640, "end_char": 10649, "source": "regex", "metadata": {"linked_statute_text": "The Bombay Agricultral Debtors Relief Act, 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"Order\n\nI of the said Code", "statute": "Order\n\nI of the said Code"}}, {"text": "Section 56", "label": "PROVISION", "start_char": 11506, "end_char": 11516, "source": "regex", "metadata": {"linked_statute_text": "Order\n\nI of the said Code", "statute": "Order\n\nI of the said Code"}}, {"text": "section 4", "label": "PROVISION", "start_char": 11615, "end_char": 11624, "source": "regex", "metadata": {"linked_statute_text": "Order\n\nI of the said Code", "statute": "Order\n\nI of the said Code"}}, {"text": "section 4", "label": "PROVISION", "start_char": 11864, "end_char": 11873, "source": "regex", "metadata": {"linked_statute_text": "Board at the date when this Act comes into force shall be continued and disposed of by the Court under this Act", "statute": "Board at the date when this Act comes into force shall be continued and disposed of by the Court under this Act"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 13035, "end_char": 13040, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 13056, "end_char": 13060, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 13242, "end_char": 13269, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 13291, "end_char": 13318, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 22", "label": "PROVISION", "start_char": 13445, "end_char": 13450, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Limitation Act, 1877", "label": "STATUTE", "start_char": 13458, "end_char": 13485, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 17", "label": "PROVISION", "start_char": 13829, "end_char": 13834, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act, 1877", "statute": "the Indian Limitation Act, 1877"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 13964, "end_char": 13969, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act, 1877", "statute": "the Indian Limitation Act, 1877"}}, {"text": "s. 56(2)", "label": "PROVISION", "start_char": 14250, "end_char": 14258, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act, 1877", "statute": "the Indian Limitation Act, 1877"}}, {"text": "Act was repealed and all the Boards established under the repealed Act", "label": "STATUTE", "start_char": 14283, "end_char": 14353, "source": "regex", "metadata": {}}, {"text": "s. 56", "label": "PROVISION", "start_char": 14406, "end_char": 14411, "source": "regex", "metadata": {"linked_statute_text": "Act was repealed and all the Boards established under the repealed Act", "statute": "Act was repealed and all the Boards established under the repealed Act"}}, {"text": "s. 4", "label": "PROVISION", 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"source": "regex", "metadata": {}}, {"text": "s. 56", "label": "PROVISION", "start_char": 16105, "end_char": 16110, "source": "regex", "metadata": {"linked_statute_text": "Act and they should be disposed\n\nH of in accordance with the substantive and procedural sections of the new Act", "statute": "Act and they should be disposed\n\nH of in accordance with the substantive and procedural sections of the new Act"}}, {"text": "s. 46", "label": "PROVISION", "start_char": 16152, "end_char": 16157, "source": "regex", "metadata": {"linked_statute_text": "Act and they should be disposed\n\nH of in accordance with the substantive and procedural sections of the new Act", "statute": "Act and they should be disposed\n\nH of in accordance with the substantive and procedural sections of the new Act"}}, {"text": "S5S", "label": "PROVISION", "start_char": 16193, "end_char": 16196, "source": "regex", "metadata": {"linked_statute_text": "Act and they should be disposed\n\nH of in accordance with the substantive and procedural sections of the new Act", "statute": "Act and they should be disposed\n\nH of in accordance with the substantive and procedural sections of the new Act"}}, {"text": "s. 46", "label": "PROVISION", "start_char": 16260, "end_char": 16265, "source": "regex", "metadata": {"linked_statute_text": "Act and they should be disposed\n\nH of in accordance with the substantive and procedural sections of the new Act", "statute": "Act and they should be disposed\n\nH of in accordance with the substantive and procedural sections of the new Act"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 16367, "end_char": 16394, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 4", "label": "PROVISION", "start_char": 16487, "end_char": 16491, "source": "regex", "metadata": {"linked_statute_text": "Act and they should be disposed\n\nH of in accordance with the substantive and procedural sections of the new 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substantive Jaw as well as the procedural law brought into force by Act", "statute": "Court has to consider the substantive Jaw as well as the procedural law brought into force by Act"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 19244, "end_char": 19249, "source": "regex", "metadata": {"linked_statute_text": "Court has to consider the substantive Jaw as well as the procedural law brought into force by Act", "statute": "Court has to consider the substantive Jaw as well as the procedural law brought into force by Act"}}, {"text": "s. 56(2)", "label": "PROVISION", "start_char": 19581, "end_char": 19589, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_1_154_157_EN", "year": 1966, "text": "T.D.GOPALAN\n\nCOMMISSIONER OF HINDU RELIGIOUS & CHARITABLE\n\nENDOWMENTS, MADRAS\n\nApril 5, 1966\n\n(M. HIDAYATVLLA!I, J. R. MUDHOLKAR, R. S. BACHAWAT AND J. M. SttliLAT, JJ.]\n\nConstitution of India, Art. 133(1) (a) and (b)-Valu<>tion of vrover ty for purpose of appeal before Supreme Court-Suit for declaration C that property was TWt a temple within meaning of Madras Act 19 of 1951-Claim whether capable oJ valuation.\n\nThe appellant >; Ought a declaration that certain premises belonged to his family as private property and did not constitute a temple within the meaning of the Madras Hindu Religious and Charitable Endowments Act (19 of 1951). The District Court decreed the suit but the High Court found that the property in question was a temple.\n\nD The appellant then flied a petition for leave to appeal to this Court under Art. 133(1) (a) and (b) of the Constitution and submitted that the property was more than Rs. 20000 in value. The High Court dismissed the application on the ground, inter a!ia, that the subject matter of the dispute whether as a private or a public temple was incapable of valuation as it could have in either case no market value.\n\nThe appellant by special leave came to this Court.\n\nHELD: The High Court was not right in assuming that whether the property was a private or a public temple, it was incapable of valuation. The subject-matter of the dispute had to be ascertained with reference to the claim made by the plaintiff in his plaint and since according to the plaint the property was the private property of the appellant's family capable of alienation, the High Court ought to have valued the property accordingly, [157 A, B]\n\nCIVIL APPELLATE JURISDicnoN: Civil Appeal No. 230 of F 1964.\n\nAppeal by special leave from the judgment and order dated January I I. 1961 of the Madras High Court in S. C. Petition No. 165 of 1960.\n\nR. Ganapathy Iyer und R. Thiagarajan, for the appellant.\n\nA. V. Ra11i; G111, for the respondent. ).\n\nThe Judgment of the Court was delivered by\n\nShelat, J. This appeal by special leave is against the order of the High Court of Madras dated January 11, 1961 refusing the H certificate under Art. 1330 )(a) and (b) of the Constitution.\n\nGOPALAN V. COMMR. H.R.E. (S/telat, J.) 155\n\nThe authorities appointed under the Hindu Religious and Charitable Endowments Act, Madras Act II of 1927 having held that the premises No. 29 South Masi Street, Madurai, wherein the idol of Sri Srinivasaparumal and certain other idols were located constituted a temple within the meaning of the said Act, the appellant filed an application in the District Court for a declaration that the said premises were private property and for an order setting aside the said decision. The said application was by an order of the High Court converted into a suit.\n\nThe main question in the suit was whether the said premises could be said to be a temple as defined by Madras Act 19 of 19 51.\n\nThe District Judge, Madurai, decreed the suit in favour of the appellant holding that the aforesaid premises did not constitute a temple and set aside the decision of the said authorities. On appeal, the High Court reversed the said judgment and decree and found that the premises in question constituted a temple.\n\nThe appellant thereupon filed a petit'on for leave to appeal to this Court and submitted that the value of the subject-matter of dispute in the District Court as also in appeal in the High Court was more than Rs. 20,000 I and that the judgment of the High Court having reversed the judgment and decree of the Trial Court he was entitled to leave under Art. l33(l)(a) and (b).\n\nThe High Court dismissed that application on the following grounds: (a) that the subject-matter of the dispute, whether it was a private or a public temple could have no market value and therefore was incapable of valuation; (b) that cl. (b) of Art. 133(1) could not apply as the judgment and decree passed by it did not involve directly or indirectly a claim or question res pecting property of the value of Rs. 20,000/- or more and (c) that the appeal did not involve any substantial question of law.\n\nFor the time being we are concerned with grounds (a) and (b) and not with ground (c) as the contention raised by Mr. Ganapathy Iyer for the appellant was that the refusal to grant leave by the High Court under either of the clauses (a) and (b) of Art. 133(1) was not correct.\n\nThe point for consideration is whether the High Court was r; ght in holding that the property in question whether as a private or a public temple was incapable of valuation as it could have in either case no market value. It may be observed that the appellant claimed that the property belonged to the Thoguluva family and he was in management thereof for and on behalf of the family.\n\nThe suit in the first instance was filed by him in the form of an application. being O.P. No. 37 of 1950 under s. 84(2) of Madras Act II of 1927.\n\nUnder that Act only a fixed court fee was payable.\n\nThat being so. the appellant did not have to pay court fees as it would in the case of an ordinary suit on a valuation made by h; m therefor. The application was subsequently converted into a suit by an order of the High Court.\n\nHe was therefore entitled\n\nSUPRE>IE COURT REPORTS (JOG6j St:PP. S.C.R.\n\nto contend at the time of the leave application that the property A in dispute was of the value of not less than Rs. 20,000 I-.\n\nIt does not appear tu be in dispute that the site of the Manda pam and the structure standing thereon was originally the property of one Kuppaiyan and his undivided sons. The appellant's case was -that in execution of the decree in Suit No. 650 of 1882 B passed against the said Kuppaiyan the property was sold by public auction and purchased by Thoguluva Thirumalayyan, the appellant's ancestor. for a sum of Rs. 1,060/-. The original mandapam was thereafter improved upon and some additional structures e.g .• shops and other constructions were added, the expenses for such repairs and additions having been met by the descendants of the said Thoguluva Thirun, alayyan, and therefore the property be- longed to and was an alienable private property of the family. On the other hand, the case of the respondents in their written statvment was that the properly was a public temple for public religious worship and that the allegation of the plaintiff that it was a private property capable of alienation was \"false and misleading.\" The case of the appellant was accepted by the Trial Court but was rejected by the High Coun and the High Court held that the pro- D perty was a public temp'.c within the meaning of Madras Act 19 of 1951.\n\nThe dispute between the parties was thus centred round the question whether the property was the private alienable property of the said family or was a public temple as held by the High Court. There was evidence that the shops subsequently con- E structed as aforesaid were let out to tenants for a number of years and property taxes were levied thereon by the Madurai Municipality, presumably on their rateable value.\n\nWe may also mention here that in his application to this Court for directing an inquiry into the value of the propaty under 0. 45, r. I of the Code of Civil Procedure the appellant has stated that he has in his possession municipal receipts showing the property tax paid to the Madurai F Municipal; ly.\n\nAccording to the appellant, property tax for the half year ending September 30. 1950 was Rs. 94-0-6 and for !he half year ending March JI, 1961 it was Rs. IJ0.36nP. According to him the half yearly tax would be equivalent to one month's rent and on that basis the annual rental value would come to Rs. 1,126-6-0 in 1950 and to Rs. l.672.32nP in 1961.\n\nIf that be so, capitalising that value al twenty times the annual rental value, G the value of the property would come to more than Rs. 20.()()(J/-.\n\nThe refusal of the High Court to grant leave was based on the observation that whether the property is a private or a public temple it was incapable nf valuation. llut as observed earlier the appellant's case was that the subject-matter of dispute in the suit H was the private property of the said family and that it was alienable property and therefore capable of a valid transfer. That being\n\n4-- ..\n\nGOI'ALAN V. OOMl\\IR, H.R.E. (She/at, J.) 157\n\nthe dispute between the parties, the High Court was not right in assuming that whether the property was a private or a public temple, it was incapable of valuation.\n\nThe subject-matter of the dispute has to be ascertained with reference to the claim made by the plaintiff in his plaint and since according to the plaint, the property is the private property of the said family capable of alienation, the High Court ought to have valued the property accordingly though according to the respondents the property was inalienable and was a public temple. The High Court was thus wrong in proceeding on the aforesaid assumption.\n\nWe would therefore allow the appeal, set aside the order passed by the High Court and remand the case to the High Court to decide the application for leave in accordance with the observations made in this judgment. The High Court may either hold the inquiry itself or remit the case to the Trial Court to hold such inquiry and report to it.\n\nAccordingly, the appeal is allowed and the High Court's order is set aside.\n\nThe respondents will pay to the appellant the costs of this appeal.\n\nAppeal allowed.", "total_entities": 17, "entities": [{"text": "D.GOPALAN", "label": "PETITIONER", "start_char": 2, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "T.D.GOPALAN", "offset_not_found": false}}, {"text": "COMMISSIONER OF HINDU RELIGIOUS & CHARITABLE\n\nENDOWMENTS, MADRAS", "label": "RESPONDENT", "start_char": 13, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF HINDU RELIGIOUS & CHARITABLE ENDOWMENTS, MADRAS", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 116, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 130, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "R.S. 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{"document_id": "1966_1_158_163_EN", "year": 1966, "text": "CHIEF CONSERVATOR OF FORESTS AND ORS.\n\nRAITAN SINGH\n\nApril, 7, 1966\n\n[K. N. WANCIHJO, J.C. SHAH ANDS. M. SIKRI, JJ.] Central Provinces and Rerar Forest Contract Rules-Rule 15(1)- Scope of.\n\nUnder r. 15(!) of th\" Central Provinces and Berar Forest Contract Rules a forest contractc.r is responsible for any damage done in a reserved forest by h1mscll or his servants or agents and compensation for such damage is to be assessed by the Divisional Forest Officer. The respondent was, under \" contract, granted a r:ght to the forest produce. By cl. 9 of the Contract any doubt or dispute arising between the parties as to the performance or breach of any of the conditions of the contract had to be referred lo the Chief Conservator of Forests for decision. The D.vis10nai Forest Officer, acting under r. 15(1), held that the contractor committed a breach of the contract and assessed the compensation for damages.\n\nHELD: Rule 15(1) aoes not invest the Divisional Forest Officer \\Vith authority to dctcrniine \\\\hether the contractor, his servants or his agents have committed a breach of the contract. When a dispul<> arises between the contractor and the forest authorities relating to the performance or breo, ch of the oontract, there has to be, under the terms of cl. 91 a refcrencl' to the officer denominated in the contract.\n\nAfter liability is deterno, ne<l, there may have to be an assessment, by the Divisionel Forest Oflicer, of compensation payable by the contractor to the State_ ThL'l'C is no inconsistency bctv.ecn cl. 9 o( the Contract and r. 15 [161 i•'-11: 162 E-FJ.\n\n(C!vIL APPEi.LATE JuR1sv1cr10:-i: Civil Appeal No. 255 of 1964.I\n\nAppeal by special !cave from the judgment and order dated November 14, 1960 of the Madhya Pradesh High Court in Misc.\n\nPetition No. 273 of 19j9.\n\nB. Sen, R. P. Kapur and /. N. Shroff, for the appellants.\n\nS. I'. Sinha, and S. Shaukat ll11ssai11, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nShah, J. Under a contract dated October 14. 1956. the respondent was granted a right to the forest produce from Coupe No. 9. Lcndara in the Sainmura Borgain Reserved Forest in the\n\nKanker Forest Division of Bastar District of Madhya Pradesh, for G\n\nthe period October 14, 1956 to March 31, 1958. The Divisional\n\n, J....\n\nForest Officer held an enquiry in respect of certain breaches committed by the respondent of the terms of the contract, and by order dated January 30. 1958 directed the respondent in exercise of the authority under r. 15( 11 of the Forest Contract Rules framed by the Government of Centi .11 Provinces & Bcrar, to pay Rs. 8,500 as H compensation assessed by him for Jamage done in the reserved\n\n; !\n\nI !!\n\n. ~\n\nforest and Rs. 500 as penalty under r. 30(1) of the Forest Contract Rules. An appeal against the order to the Conservator of Forests, and a revision petition to the Chief Conservator of Forests, Madhya Pradesh, were unsuccessful. The respondent then moved the High Court of Madhya Pradesh by a petition under Art. 226 of the Constitution for a writ quashing the order dated January 30,\n\n1958 directing payment of compensation and penalty and restraining enforcement of the order. The High Court granted the petition and restrained the State and the forest authorities from recovering Rs. 9,000, ordered on January 30, 1958, from the respondent.\n\nIn this appeal, the appellants contended in the first instance that the High Court was in error in holding that by r. 15 of the C Forest Contract Rules the Divisional Forest Officer was not authorized to direct the contractor to PilY compensation for damage done by him or his agents or servants, because the coupe was not in \"a reserved forest\". Such a case, it was said, was never pleaded by the contractor in his petition, and the High Court in granting relief to the respondent made out a case which the appellants had no opportunity to meet. In support of their case tha.t the coupe is a D part of the reserved forest, the appellants have annexed to their petition for special leave a \"true copy\" of a notification issued under s. 20 of the Indian Forest Act, 1927, as applied to the Central Provinces, declaring that the State forests of the Bastar District in Tahsil Kanker Sainmura-Borgaon specified in the Schedule shall be reserved forests.\n\nWe agree with the appellants that the High Court has without any plea or evidence assumed that compensation under r. 15(1) could not be directed to be paid by the contractor for damage done in the coupe, for which he was given a contract, because the coupe was not included in a. reserved forest. The plea which appealed to the High Court was not raised in the petition, nor in the objections to the Divisional Forest Officer in reply to the notice to show cause, nor in the memorandum of appeal before the Conservator of Forests, nor in the petition invoking the revisional jurisdiction of the Chief Conservator of Forests. The High Court assumed that because the forest authorities charged the contractor with \"illegal fellings in the coupe\" granted to him, the \"fellings could not be in a reserved forest''. For this assumption there is no warrant. The High Court was therefore in error in setting up the ground that the impugned order was not authorised by the terms of r. 15(1) .\n\nBut the appeal filed by the appellants must still fail on the grounds to be presently set out.\n\nThe following are the relevant terms of the contract: H \"I. The Governor hereby agrees to sell to the forest contractor, and the forest contractor agrees to purchase the forest produce described in the First Schedule hereunder\n\n160 SUPREllE COURT REPORTS\n\n[1966] SL'PP. B.C.R.\n\nSchedule after stated.\"\n\nsituated in the area speciJied in the said A on the conditions herein-\n\nThe First Schedule describes the area of the forest and sets out the torest produce sold under the contract.\n\n''6. The forest contractor shall be subject to the Forest B Contract Rules as amended from time to time \\a copy of which has been turnished to the torest contractor, the receipt of which the torcst contractor hereby acknowledges) and th~\n\nRuic; shall t>e oecmcd to oc part ol this contract m so far as they are appiicablc thereto:\n\nProvided that the said Rub shall be deemed to be modic tied to the extent and in the manner .laid down in the Second Schedule hereunder.\"\n\n\"7. The forest contractor hereby bimls himself to perfom1 all acts and uutres requHed, and lo abstam by himsell and his servants or agents trom performing any act forbidden by the\n\nIndian Forest Act, 1927, by the Forest Contract Rules and by tins contract. \"\n\n\"9. Jn the event of any doubt or dispute arising between the parties as to the interpretation of any of the conditions of this contract or as to the performance or breach thereof, the matter shall be retcrred to the Chief Conservator of Forests, Madhya Pnidesh, :'iagpur, whose decision shall be final and bindmg on the parties hereto.\"\n\nily cl. o of the contract, the Forest Contract Rules framed by the 10<:al Government are made part of the contract. The material ..:tauses of the Rules read as follows:\n\n\"2. All contracts whereby Government sells forest produces to a purchaser shaU be subject to the following rules, in so far as they arc applicable, and these rules, 1n so far as they arc applicable. shall be deemed to be binding on every forest con11actor 1101 only as ruks made under the Forest Act, but also as conditions of his forest contract:\n\nProvi, kd that the forest olliccr executing a forest contract shaU have power to vary these rules by express provision in such contract, and where these rules arc in conflict with such G an express provision, such express provision shall prevail:\n\nProvided further \" \"15(1) A forest contractor shall be responsible for any damage that may be done in a reserved forest by himself or his servants and aents. The compensation for such damage II shall be assessed by the Divisional forest Ot!icer, whose decision shall be deemed to be that of an arbitrator and shall be\n\n,, ,,\n\nCONSERVATOR OF l<'ORESTS v. RATTAN SINGH (Shah, J.) 161\n\nfinal and binding on the parties, except to the extent that it. shall be subject to an appeal to the Conservator of Forests.\n\nExplanation.-\n\n(2) Any sum assessed as damages under this rwe shall be recoverable as arrears of land revenue ................. .\n\n\"30(1) Where the forest contractor commits a breach of any of the conditions of his contract but it is not proposed to terminate his contract on account thereof, the whole penalty provided for in rule 28 shall not be recovered from him, but the Divisional Forest Officer shall have power to recover a portion thereof, not exceeding five hundred rupees, in accordance with the provisions of section 85 of the Act.\n\n(2) An order of the Divisional Forest Officer under this rule shall be subject to appeal to the Conservator of Forests if the amount levied exceeds two hundred rupees, but shall otherwise be final.\n\n(3) The payment of a sum assessed under this rule shall absolve the forest contractor from all further liabilities under his contract in respect of such brea.ch, except his liability under rule 15 for damage done in a reserved forest.\"\n\nOn behalf of the respondent it was urged before the High Court, as also before this Court, that where \" dispute arose between the Divisional Forest Officer and the contractor, whether the contractor, his servants or agents had caused damage in a E reserved forest, the question could be deciued in the manner appointed in cl. 9 of the contract alone, i.e., by arbitration of the officer denominated, and not by the Divisional Forest Officer. In dealing with the validity of the order imposing penalty upon the contractor the High Court upheld that argument. Rule 15 in the first instance declares that the forest contractor shall be responsible for any damage done either by himself, or his servants or agents: F it then proceeds to state that compensation shaH be assessed by the Divisional Forest Officer whose decision shall be deemed to be that of an arbitrator, subject to an apprnl to the Conservator of Forests. The rule uoes not confer upon the Divisional Forest Officer authority to determine. when a dispute is raised, whether damage has been caused in a reserved forest by the contractor, his agents or his servants. The rule only declares that for damage that may G be done. by the contractor, his servants or agents, in the forest, the contractor shall be liable: the rule also invites the Divisional Forest Officer with authority to determine the amount of compensation payable by the contractor, but not to determine whether .the contractor, his servants or his agents have committed breach of the contract. Clause 9 of the contract confers authority upon the Chief H Conservator of Forests to adjudicate upon disputes, inter a/ia. as to the performance or breach of the contractor. By. cl. I read with the Schedule to the contract \"the contractor had to fell or uproot\n\n162 8Ul'REHE OOURT ~REPORTS i ; (1966] SUPP, S.C.R.\n\ntrees marked with a gcru band or to fell trees on coupes and section lines which bear a marking hammer impression on the stump buttends and all Karru over 9\" at B.H. whether marked or not\".\n\nIt was the case of the Divisional Forest Officer that the conlractor had, contrary to the terms of the contract, cut trees not marked with the gem band. Plainly, the Divisional Forest Ollicer claimed !hat the contractor had committed a breach of the terms of the contract, and when the contractor denied the breach. a dispute arose between the parties as to the performance or breach of the terms of the contract. and it had to be referred to the Chief Conservator of Forcs!s. It is conceded, and in our judgment counsel is right in so wnceding. that the expression \"shall be referred to\" means \"shall be referred to the Officer denominated\" as an arbitrator to decide 1hc dispute.\n\nIt was argued hcwever that by virluc of cl. 6 of the contract, the Forest Contract Rules were made part of the contract, and the Divisional Forest Oflicer was invested with authority not only to determine the amount of compensation which may be payable by the contractor for damage done in a reserved forest, but also to determine whclher the contractor or his agents or servanls had been responsible for causing the damage. This, for reasons already stated, we arc unable to accept.\n\nThere is no inconsistency between cl. 9 of the contract and\n\nr. 15. It is unnecessary, therefore, lo consider whether in case of inconsiotency, the terms of the contract expressly setting out a ccr- E lain covenant may supersede the terms of the rule. Under r. 15 the liability for damage done in a reserved forest is declared against the contractor. He is also declared liable to pay compensation as may be asseS>ed by the Divisional Forest Officer. But the Divisional Forest Ollker is not invested with authority to determine whelhcr the damage was done hy the contractor, his agents or servants. That is a matter which must be determined in a refer- F ence under cl. 9 of the contract.\n\nIt was urged by 1hc appellants that it could not have been inlcnded by the rule-making authority. who had also prescribed the form as part •)f the rules in which lhe contract was required to be executed. to set up a complicated and clumsy procedure for G determination of a dispute about the breach of contract. If the\n\n,.+ ..\n\nlanguage of the rules were ambiguous. this may be a relevant con-\n\n1J. , ideration. When a dispute arises bc1ween the contractor and the forest authori1ics rdating to the performance or breach of the contract. there has. under the terms of cl. 9. lo be a reference to the Officer denominated in the contract. After liabilily is detcrmin- H ed. there may have to be an assessment by the Divisional Forest Officer of compensation payable by the contractor to the State.\n\nThat would necessitate another inquiry. The procedure is apparently clumsy and likely to be dilatory. But we are una.ble to ignore the plain terms of the contract and the rules, and to hold that in respect of the determination of responsibility for damage done in a reserved forest, there need be no reference under cl. 9 of the terms of the contract.\n\nIt was then urged that in any event a decision was in fact given by the Chief Conservator of Forests in this case, and that decision complied with the requirements of cl. 9 of the contract.\n\nBut as already stated, the Divisional Forest Officer passed an order holding the respondent .Hable to pay compensation for damage done in a reserved forest and assessing the compensation at Rs. 8,500 and penalty at Rs. 500. That order was confirmed in appeal by the Conservator of Forests, and in exercise of his revisional jurisdiction the Chief Conservator of Forests upheld the order of the Conservator of Forests. The Chief Conservator of Forests did not even purport to act as an arbitrator: he recorded no evidence, and expressly held that the Divisional Forest Officer was not obliged to refer the case for arbitration under cl. 9 of the contract. The trial was not of a proceeding in arbitration, but of a proceeding in exercise of supervisory or revisional jurisdiction. If in truth the dispute had to be referred for adjudication to the Chief Conservator of Forests, his decision that he found no reason to interfere with the \"findings of the Divisional Forest Officer\" who was one of the parties to the dispute, cannot conceivably be regarded as an award between two contesting parties. It must therefore be held that the order passed by the Divisional Forest Officer imposing liability for compensation for damage done by i1legal fellings cannot be sustained.\n\nThe second part of the order imposing penalty under r. 30(1) also suffers from the same infirmity. It is true that under the rule! the Divisional Forest Officer had power to impose penalty in a sum not exceeding Rs. 500. But exercise of that power is conditioned by the existence of a breach by the forest contractor of any of the terms of the contract. Where a. dispute arises whether there has been a breach of any of the terms of the contract, it is, for reasons already stated, to be determined by the Chief Conservator of Forests. That has admittedly not been done. The order imposing penalty under r. 30(1) must also be set aside.\n\nThe appeal therefore fails and is dismissed with costs.\n\nAppeal dismissed.", "total_entities": 26, "entities": [{"text": "CHIEF CONSERVATOR OF FORESTS AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "CHIEF CONSERVATOR OF FORESTS AND ORS", "offset_not_found": false}}, {"text": "RAITAN SINGH", "label": "RESPONDENT", "start_char": 39, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "RATTAN SINGH", "offset_not_found": false}}, {"text": "C. SHAH ANDS. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 88, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "S.M. 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{"document_id": "1966_1_15_21_EN", "year": 1966, "text": "., D\n\n• G\n\nINDIAN IRON & STEEL CO. LTD.\n\nBISWANATH SONAR\n\nMarch 22, 1966\n\n[K. N. WANCHOO, M. HIDAYATULLAH AND J. C. SHAH, JJ.]\n\nBengal Non-Agricultural Tenancy Act, s. 9(l)(iii)-Benefit under section whether available in case of monthly tenancy-'Term' in section whether means agreed term or period of occupation.\n\nThe appellant company gave on lease a piece of land to the respondent in 1938. On June 28, 1950 the company gave notice to the respondent terminating the tenancy. The period mentioned in the notice, which was received by the respondent on June 29, 1950 was six months ending with the expiry of December 1950. Later the company filed a suit for the eviction of the respondent. The latter claimed benefit of s. 9(1) (iii) of the Bengal Non-Agricultural Tenancy Act.\n\nThe trial court decreed the suit and the first appellate Court upheld the decree, but the High Court set it aside and dismissed the suit.\n\nBy special leave, the company appealed to this Court contending that since the respondent's tenancy was from month to month s. 9\n\n(1) (iii) did not apply, It was urged: (i) the phrase \"for a term of more than one year but less than twelve years\" in the first part of the section contemplated tenancies in which the agreed duration under a contract was more than: one year but less than 12 years; (ii) the phrase \"six months' notice expiring with the end of a year of the tenancy\" in the latter part of the section meant that the notice in writing must expire with the end of the year of the tenancy when the tenancy was from year to year and with the end of the term when it was more than one year's duration.\n\nHELD: (i) The Act uses the word \"term\" both in the sense of a period of occupation and of a perfod agreed upon in a contract. The context must determine the sense in which it is to be understood. In the opening words of s. 9(1) (iii) it means that the land must be held, that is, occupied, for more than one year. It does not signify that there should be an agreed term of more than one year. [18 C-D; 19C; 20E]\n\n(ii) The words \"end of a year of tenancy\" in the latter part of s. 9(1) (iii) are no doubt indicative of a tenancy from year to year but they are not such as to be inapplicable to a tenancy from month to month. What the section conterflplates is occupation for more than one year and it says that a tenant who has held the land for more than a year, dbeit, on a tenancy from month to month, shall only be evicted on the anniversary od' the day on which his tenancy commences.\n\n[20 F-H]. ·\n\n(iii) The tenancy having commenced as held by the High Court on December 1, 1938 the notice given by the company in the present case fell short of the statutory six months and was therefore invalid. [21 E-G].\n\nC!vrL APPELLATE JuRrsmcnoN: Civil Appeal No. 1090 of 1963.\n\nAppeal by special leave from the judgment and decree dated June 2, 1961 of the Calcutta High Court in Appeal from Appellate Decree No. 786 of 1956.\n\nM. C. Setalvad and D. N. Mukherjee, for the appellant.\n\nA. K. Sen and P. K. Chatterjee, for the respondent.\n\nSUPREME COURT REPORTS (1966]\n\nSUPP. S.C.R.\n\nThe Judgment of the Court was delivered by A\n\nHidayatullab, J. This appeal by special leave against the judgment and order of the High Court of Calcutta, December 5, 1961, arises from a suit between landlord and tenant. The Indian Iron & Steel Co. Ltd. (appellant) is the landlord and Biswanath Sonar (respondent) is the tenant, and the tenancy is in respect of a B piece of land with a rent of Rs. 4 /- per month. According to the Company the tenancy commenced in December 1938 and according to the tenant in the beginning of 1935. The two courts of fact have found in favour of the Company on this point and the High Court has very properly accepted this concurrent finding but has held that tenancy began on the 1st of December, 1938, but more of that later.\n\nThe suit was commenced in the Court of the Munsif at Asansol by C the Company after serving a notice dated June 28, 1950 terminating the alleged monthly tenancy of the respondent with the expiry of December, 1950. The notice was served on June 29, 1950. The Company asked for the relief of khas possession by evicting the tenant and reserved the relief of compensation for wrongful occupation after January 1, 1951, for a separate suit. The Company offered to pay such reasonable compensation for structures on the D land as the court might determine. The respondent claimed benefit of s. 9(i)(iii) of the Bengal Non-Agricultural Tenancy Act under which, he submitted, his tenancy could not be determined except by service of six months' notice in writing expiring with the year of tenancy. He contended that the notice served on the 29th of June terminating the tenancy at the end of December, 1950, was not in accordance with the provisions of the Act as the tenancy commenc- E ed in the beginning of 1935, and, therefore, the suit was not maintainable. The learned Munsif held the notice to be proper and decreed the suit. On appeal the Additional District Judge, Asansol confirmed the decree passed by the Munsif. On second appeal a learned single Judge in the High Court reversed the decision of the two courts below and ocdered the dismissal of the suit. He followed a decision of a special Bench of his Court reported in the Indian Iron F and Steel Co. Ltd. v. Baker Ali(') which had approved of two unreported decisions of the same Court reported in Sudhindra !Vath Roy v. Haran Chandra Mistry (S.A. No. 879of1950 dated 25-1-1955) and Narayan Chandra Sen v. Sripati Charan Kumar (S.A. No. 425 of 1952 dated 9-8-1955). The learned single Judge re.fused leave to file an appeal under the Letters Patent but the appellant was granted special leave by this Court to appeal against the judgment of the G learned single Judge.\n\nIn this appeal two questions arise, namely, (i) whether the provisions of s. 9(l)(iii) of the Non-Agricultural Tenancy Act apply to the present tenancy, and (ii) whether the notice served upon the respondent complied with the terms of the Act. In so far as the H\n\n(') A.I.R. 198t Cal. 51~.\n\nIRON & STEEL co. v. B. SONAR (llidayatuUah, J.) 17\n\n-f A first question is concerned no further facts are necessary. This ques tion should have given no difficulty but for the fact that the langu .. ; age of the enactment is far from clear. Section 90)(iii!lJ reads as --< follows:-\n\n\"9. Incidents of non-agricultural tenancies held for less than\n\nB twelve years.\n\n(1) Notwithstanding anything contained in any other law for the time being in force or in any contract, if any non-agricultural land has been held for a term of more than one year but less than twelve yearsc\n\n(a) under a lease in writing for a term of more than one year but less than twelve years to which the provisions of clause (5) of section 7 do not apply, or\n\n(b) without a lease in writing, or\n\n(c) under a lease in writing but no term is specifi\n\ned in such lease, D then the tenant holding such non-agricultural land shall be liable to ejectment on one or more of the following grounds and not otherwise, namely: - (i)\n\n(ii)\n\n(iii) on the ground that the tenancy has been terminated by the landlord by six months' notice in writing expiring with the end of a year of the tenancy served on the tenant in the prescribed manner in clause (b) : Provided that a tenant shall not be liable to eject ment on the ground specified in clause (iii) except on .\n\n> F payment of such reasonable compensation as may be agreed upon between the landlord and the tenant or if they do not agree, as may be determined by the Court\n\n,; f on the application of the landlord or such tenant.\n\n\" . <·\\'..\n\nG Difficulties arise in connection with two expressions in this section .\n\nFirstly, what is meant by the phrase \"for a term of more than one year but less than twelve years\" in the opening part, and, secondly, what is meant by the phrase \"six months' notice in writing expiring with the end of the year of the tenancy\". The appellant contends that the first phrase contemplates tenancies in which the agreed H duration under a contract is more than one year but less than 12 years and the second phrase means that the notice in writing must expire with the end of the year of the tenancy when the tenancy is\n\n18 SUPRElE (,'Ot:H1 REPORTS [1966)\n\n8\\; PP.\n\nS.C.R.\n\nfrom year to year and with the end of the term when it is more than one year's duration. The respondent contends that the two phrases respectively describe the duration for which non-agricultural land must actually be held and that the notice of six months must end on the anniversory of the commencement of the tenancy.\n\nThe appellant's contention, shortly stated, is that a monthly tenancy cannot get the benefit of s. 9(l)(iii) however long the occupation of the land. Both sides agree that this is non-agricultural land and that the tenancy is from month to month. It has also been found that it is a monthly tenancy. If the provisions of s. 9(l)(iii) apply also to a monthly tenant who has been in possession of land for more than a year, then the respondent will be protected from eviction, otherwise not. This depends on what is meant by the two phrases we have referred to earlier.\n\nThe construction of the first phrase is rendered difficult because the Act does not use the words strictly in the same_ sense throughout. Sometimes the word \"term\" is used to indicate a period of time without any reference to a contract determining it and sometimes to a period settled. agreed or determined by a contract. In\n\ns. 9(l)(iii) the word \"term\" is used and the question arises whether D it indicates a period of occupation or a pericd agreed upon in a contract. To determine the right meJning we shall first analyse the provisions of the Act generally and then consider what is the true meaning of the two expressions in s. 9 on which there has been a difference of opinion between the High Court and the two courts below.\n\nThe Act was passed to make comprehensive provisions relat- E\n\ning to the law of landlord and tenant in respect of non-agricultural tenancies in West Bengal and is a part of protection given in modern times by law to tenancies of various kinds of which the Rent Control Acts and Acts relating to agricultural tenancies represent some other aspects. After defining the terms such as 'land', 'non-agricultural land' and 'non-agricultural tenants' (to which definitions F pointed reference here is unnecessary), the Act classifies non-agricultural tenants into tenants and under-tenants, and then it makes separate provisions for their protection. The Third Chapter (ss. 6 to 15) provides for tenants a11d the Fourtb Chapter for under-tenants. The remaining Chapters providing for the manner of transfer of non-agricultural tenancies', preparatioh of records of rights, settlement, rents, etc. do not presently concern us. We shall, there- G fore, confine our attention to the cha pier on tenants. Section 6 lays down the manner of use of non-agricultural lands. It states generally that the tenant may use land in any manner not inconsistent with the purpose of the tenancy but so as not to impair its value.\n\nThe section goes on to state that the tenants to whom ss. 7 and 8 apply may erect any structure including a pucca structure, dig any H tank, plant and enjoy the flowers and fruits and fell and utilise or dispose of timber of any tree on such land, but the tenants to whom\n\n!RON & STEEL co. v. Jl, SOO!AR (liidayat!!Ua./i, J.) 19\n\ns. 9 applies may only erect structures other than pucca structures and may not dig tank, or fell, utilise or dispose of, trees not planted by them. Sections 7, 8 and 9 lay down the incidents of two different kinds of tenancies: (a) those held for a term of not less than 12 years and (b) those held for a term of less than 12 years but more than one year and the question which we have stated earlier is whether by the word \"term\" is meant the duration of the lease agreed upon or merely the period of occupation of the non-agricultural land.\n\nA close study of the Act shows that the word \"term\" is used in both senses and the context must determine in which sense it is to be understood. We need not reproduce here all the sections or c clauses in which the word \"term\" is used in one sense or the other because sub-sections (3) and (4) of s. 7 between them illustrate adequately this two-fold meaning. We may reproduce them here:\n\n\"7. Incidents of certain tenancies.\n\nNotwithstanding anything contained in any other law for the time being in force or in any contract- D (]) (2)\n\n(3) If any non-agricultural land has been held for a term of not less than twelve years under a lease in writing but no term is specified in such lease, or E\n\n(4) if any non-agricultural land held under a lease in writing for a period specified therein continues to be held with the express or implied consent of the landlord after the expiration of the time limited by such lease and the total period for which such land is so held is not less than twelve years, or F :(5)\n\nthen-\n\n(i) the tenant holding the non-agricultural land comprised in such tenancy shall not be ejected by his landlord from such land except on the ground that he has used such land in a manner which renders it unfit for use for the purposes of tenancy,\n\n(ii) the interest of the tenant in the non-agriculural land comprised in such tenancy shall, m the case where such tenant dies intestate !n repect o~ such interest, be transmitted by mhentance m the same manner as his other immovable property:\n\nSUPR~; ME COURT REPORTA\n\n(1966) BUPP, s.o.B,\n\nA bare perusal of these enactments is sufficient to show that A the word \"term\" used for the first time in (3) indicates that the period of occupation must not be less than 12 years. It cannot mean an agreed period because the latter part says that this applies where \"no term\" is specified in the lease and in this part the word \"term\" must obviously mean an agreed period. (4) shows that if B land is held beyond the period specified in the lease in writing and if the total period then becomes not less than 12 years, the protcction is again obtained. The word \"term\" thus may indicate a period specified in a lease or a period of occupation according as the context requires. This diversity of meaning is also illustrated by ss. 7(2), 8(1) and 8(3).\n\nWe now come to s. 9 which we have already quoted. It begins by excluding any other law or ccntract of lease from considerac\n\ntion and speaks in the opening part of land held for a term of more than one year but not less than twelve years thereby distinguishing between tenancies on the basis of the length of occupation. As the marginal note says. the section deals with tenancies held for less than twelve years. Clauses (a), (b) and (c) also estab- D lish the above meaning because (a) applies to leases in writing for a term of more than one year but less than twelve years, (b) refers to cases in which the occupation is without a lease in writing and\n\n(c) refers to cases in which there is a lease in writing but no term is specified. In those cases in which there is no written lease or in which no term is specified in the lease in writing, the opening portion must obviously mean that the land must be held, that is, B occupied for more than one year. The difference between ss. 7 and 8 on the one hand and s. 9 on the other lies in the kind of protection afforded. A tenant who has held the land under lease for more --- than 12 years cannot be ejected at all unless he has used such land in a manner which renders it unfit for use for the purpose of the tenancy. and his interest becomes heritable, transferable and devisable .like any other immovble property. A tenant who has held F land in occupation for less than 12 years but more than one year can only be ejected by a notice of six months expiring with the end of a year of the tenancy. It is argued that the words \"end of a year of tenancy\" are inappropriate where the tenancy is from month to month because there is no year of tenancy. Those words\n\nno doubt are indicative of a tenancy from year to year but they are not such as to be altogether inapplicable to a tenancy from G month to month. What the section contemplates is occupation for more than one year and it says that a tenant who has held the land F for more than a year, albeit, on a tenancy from month to month,\n\nshall only be evicted on the anniversary of the day on which his tenancy commences. Where the tenancy is from month to month \"year\" means a period of twelve months and the tenant may only H be required to quit at the expiry of the whole year, that is to say, on the anniversary of the commencement of the lease.\n\nIRON & STEEL CO. V. B. SONAR (Hidayf!tullah, J.) 21\n\nIt is argued that this would have the effect of converting the tenancy from month to month into a tenancy from year to year.\n\nThis is J:>erhaps true. In the matter of certain rights of the tena1:1ts, particularly in the matter of termination of their tenancy by notice, it appears that this legislation intends to bring even a .m?nthly tenant, who has occupied land for more than a year, withm the protection of six months' notice before he is evicted. A different protection is given to a tenant who occupies land for 12 years and in that case he cannot be evicted even by notice unless he uses the land in a manner which renders it unfit for the purposes of the tenancy or his other property goes to Government and his interest in the land is extinguished.\n\nSection 9(1)(iii) was interpreted in much the same way in the three decisions of the High Court of Calcutta above referred to and in our judgment those cases took the right view of the matter. The Company itself served a notice in June expiring with the end of the year alleging that the tenancy had commenced in December 1938 indicating quite plainly that it also considered that a notice of 15 days expiring with the end of the month of the tenancy would not be sufficient. In its view also, the notice to be a valid notice had to be of six months expiring with the end of the year of tenancy. Therefore, the notice was despatched on the 28th of June, 1950 and was served on the following day. It asked the tenant to quit at the end of December, 1950. The High Court held that the tenancy must be deemed to have commenced on December I, 1938 and the notice fell short of six months. In fact, the notice would fall short of the necessary period unless the tenancy had commenced on a date between the 29th and 31st December,\n\n1938. There is no proof when the tenancy really commenced and the Company has not cared to give evidence on this part of the case. Even if we reject the finding of the High Court that the tenancy commenced on the !st of December, we are not in a position to say that it commenced on any p>rticular date. We are, however relieved of the trouble to make the effort because the account books of the Company show that the tenant was on the land even in November and had paid rent. In view of this and in view of the construction we have placed on s. 9(1)(iii) it is quite plain that the notice must fall short of the statutory six months. It was, therefore,. quite neffoctive and the High Court was right in holding that 1t was mvahd although our reasons are different.\n\nThe appeal has thus no force. If fails and will be dismissed with costs.\n\nAppeal dismissed.", "total_entities": 31, "entities": [{"text": "G\n\nINDIAN IRON & STEEL CO. LTD", "label": "PETITIONER", "start_char": 8, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "INDIAN IRON & STEEL CO. LTD", "offset_not_found": false}}, {"text": "BISWANATH SONAR", "label": "RESPONDENT", "start_char": 41, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "BISWANATH SONAR", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 75, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "K.N. 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{"document_id": "1966_1_164_173_EN", "year": 1966, "text": "VITHAL DAS A\n\nRUPCHAND & ORS.\n\nB April 7, 1966\n\n(K. SUB!IA RAO A~D V. RAMASWAMl. JJ.J\n\nTrusts Act 1882. ss. 2.1. 90 and 95-Appellant in possession oj partnership property after dissolution-Collecting rental income-:-Whcther on partition interest pauable by him under s. 23 read teit.h s.<. 90 and 95 either as co-01DnP.r derit:ing advantage in derogation t C Tights of other partners or on lireaeh of tru.<t or beca>c<e of dday in payment of shares of income of other partners.\n\nInterest Act, 1839, s. I-Scope of.\n\nThe plaint:!Ts instituted a suit for partition of immovable property constituting two blocks and for rendition of account•. They claimecl that the property was purchased with the capital of the partnership firm in which the plaintiffs and the defendant were partners D and that by two documents dated July 2, !937 and July 16.1937, the properties continued to remain in the ownership of the partnership firm, though the firm was dissolved in 1937. The defendant contested the suit on various grounds and also alleged that he had invested Rs. 10,000/- for constructing a building on the land in one of the blocks The trial Court granted the plaintiffs a decree for most of the reliefs sought. The High Court, in appeal. held that the plaintiffs were E entitled to claim half >hare in the properties and that the defendant was liable to account for the income from the date of dissolution i.e.\n\nJuly 2. 1937 in the case of one block ancl from 1939 Lri th• case of the other block and furthermore that the plaintiffs were liable to pay haI.f th<• amount spent by the defendant in constructing the building on one of the blocks. Upon a remand of the case to the trial Court a Commissioner v..as appointed to examinr the accounts of rent rcali zed bv the defendant and on the basis of his report. the trial court r iirantcd the plointiffs a decree for the amount payable to them as their half share, together with interest upto April 1957 and after deducting the plaintiffs' shart> of the expenditure incurred by the defendant on the building. In further appeals to the High Court by both the parties the decision of the trial court was substantially confirmed.\n\nIn the appeal to this Court b;· the defendant, it was contended. inter a!ia. on his behalf that the trial court and the High Court had erroneously decided that the defendant was liable to pav interest for G the period prior to the institution of. the suit on the half share of the ,..;, rental ; ncome on the ground that the relationship between the parties was in the nature of a trust under Section 90 of the Trusts Act, 1882. ~\n\nOn the other hand the contentions for the respondents were that interest nrior to the date of institution of the suit could be paid to H em under the. Interest Act. 1839: that the defendant was in posseS'- sion of the entire pronert1es as co-owner after the dissolution of\n\nthe partnership by the document dated July 16, 1937 and that a! he\n\n---: ..---- -_,.,\n\n) I / •\n\nVITIIAL DAS\"· RUPCHAND. (Ramaswami, J.) 165\n\nA.\\ was realizing rents of the .properties, he was in ihe position of a\n\n constructive trustee under s. 95 of the Trusts Act and was liable therefore to pay interest on the plaintiffs' share of rent under s. 23 read with s. 95 of the Act; and that he was in any event liable to pay interest under s. 23(b) of the Trusts Act because there was unreasonable delay in paying the trust money to the beneficiary,\n\nHELD: Interest wao \"only payable to the plaintiffs at the rate of 6% per annum from the date of the final decree on the amount found due to the plaintiffs.\n\nIt is well-established that interest may be awarded for the period prior to the date of_ the institution of the suit if there is an agreement for the payment of interest at fixed rate or if interest is payable by the usage of trade having the force of Jaw, or under the provisions of any substantive law as for instance under s. 80 of Negotiable Instruments Act or s. 23 of the Trusts Act. It was admitted in the present case that the two agreements between the parties dated July 2, 1937 and July 16, 1937 did not provide for payment of interest 1n the rental realised by the defendant on the joint properties. Nor was interest payable under any provision of law governiiig the case.\n\nUnder the Interest Act, 1839, the court may allow interest if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument but it was conceded that was not the position in the present case. The provision in s. 1 of the Interest\" Act that \"interest shall be payable in all cases in which it is now pay- able by Jaw,\" applied only. to cases in which the Court of Equity exercised jurisdiction to allow interest. [168 B-D].\n\nBengal Nagpur Railway c'o:Ltd. v. Ruttanji Ramji 65 I.A. CG.\n\nThawardas PharumaL v. Union of India. [1955] 2 S.C.R. 48. Union of India v. Rallia Ram, A.I.R.1963 S.C. 168!1 and Union of India v. Watkins Mayor & Co. A.LR. 1966 S. C. 275, referred to.\n\n.There wasno force in the contention that s. 90 of the Trusts Act applied to this case. A ct>-owner in possession of all the joint properties does not become a trustee by the mere fact of his collection of the full amount of rent from the tenants. If the co-owner .is to be clothed \"with the status of a trustee, it must be shown that he has gained some advanage in derogation of the other co-o\\vners interested in the property and that he gained such n G<!vanlage by availing himself of his position as co-owner. In the present case,, there was no allegation or finding by the trial court that the defendant had gained any such advantage. [170 E] Even assum!ng that the .defendant was in the position of a constructive trustee, he would be liable to pay interest under s. 23 only if he committed a breach of trust and in the present case there was no question of any such breach on his part. Furthermore, he was not liable to pay interest under s. 23(b) as that provision contemplates cases where there is an obligation on the part of the trustee to pay the trust money to the beneficiary at fixed intervals or on demand. [170 F].\n\nBlogg v. Johnson, [1867] 2 Ch. A 225, Silkstone and Haigh Moor _ Coal Co. v. Edey, [1900] 1 Ch. 167; Mal!and v. Gray 63 E.R. 744 and Guildrey v. Stevens 46, L.T. 761, referred to.\n\n OVIL APPELLATE JURISDICTION: Civil Appeals Nos. 926 and 927 of 1965.\n\nAppeals from the judgment and decree dated November 25, 1962 of the Madhva Pradesh High Court (Indore Bench) at Indore, in First Appeals Nos. 19 and 23 of 1957 respectively.\n\nBUPR~:ME COURT REPORTS\n\n(1966] SUPP. S.C.R.\n\nS. V. Gupte, Solicitor-Genert1l, Rameslnvar Nmh, S.\n\nA Andley, P. L. Vohra and Mahinder Narain, for the appellant.\n\nS. P. Sinha, Ga11pat Rai. £. C. Agarwala and P. C. Agarwala. for the respondent.\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. These appeals are brought by certificate on behalf of the defendant from the judgment of the High Court of Madhya Pradesh. Indore Bench, dated November 20, 1962 in First Appeals Nos. 19 and 23 of 1957.\n\nThe plaintiffs, Rup Chand and Hukam Chand instituted Civil Suit No. 8 of S. 1999 in the Court of District Judge, Ujjain, against the defendant Vithal Das and three others, for partition of houses and for rendition of accounts. Two of the defendants, Bheronlal and lndermal died in the course of the suit and the suit was continued against Vithal Das. The plaintiffs alleged that the immovable property constituting Blocks Nos. 206 and 207 in Freeganj, Ujjain was purchased with the capital of the partnership firm in which the plaintiffs and the defendant were, at one time, partners and by two documents dated July 2, 1937 and July 16, 1937, the properties continued to remain in the ownership of the partnership firm. though the firm had been dissolved in the year 1937. The plaintiffs claimed that the properties were managed by the defendant on behalf of the plaintiffs and the defendant realised rents from the tenants on their behalf and plaintiffs were therefore entitled to receive half the amount realised as rent and the defendant was liable to render accounts thereof. The plaintiffs also claimed partition of the joint properties, or in the alternative, the sale of the property by auction and after deducting the cost of auction. half of the sale proceeds. The defendant contested the suit on the ground that at the time of the execution of the document dated July 2. 1937 there were only three blocks in partnership which were at that time open land. The defendant claimed that Block No. 206 and the building constructed thereon was not a partnership property. It was further alleged that the defendant had invested Rs. 10,000 in the three blocks of land which were held in partnership for constructing a building. The trial court accepted the plaintiffs' case and granted a decree for partition of the blocks and for an account of income realised in respect of the property situated on block No. 207. As regards block No. 206 and the property standing thereon the trial court directed the defendant either to remove the construction nr accept his share of money spent by the defendant over it and created a charge over the property in respect of the amount so held payable. Both the parties preferred appeals in the High Court of Madhya Pradesh against the judgment of the trial court which partially allowed the appeals and remanded the case to the trial Court. The High Court held that the plaintiffs were entitled to claim half share in both the properties built on blocks Nos. 206 and 207 and the defendant was liable to account\n\nVITBAL DAS:v. RUPCHAND (Ramaswami,_J.) 167\n\nA for the income of the properties on block No. 207 from the date of dissolution i.e., from July 2, 1937 and of block No. 206 from the year 1939. The High Court also held that the plaintiffs were liable to pay half the costs spent by the defendant in constructing t!ie building on block No. 206. After the order of remand the tnal Court appointed a Commissioner for examining the accounts of B rent realised by the defendant. After considering the report of the Commissioner, the trial Court determined the total amount of rent of both the blocks Nos. 206 and 207 at Rs. 41,829/3/7 and the half share of the plaintiffs was determined at Rs. 20,914/4/9. The trial Court also awarded interest to the plaintiffs on the half share of the income to the extent of Rs. 6,67617 / 3 calculated upto April 11, 1957. The total amount thus due to the plaintiffs was determine ed at Rs. 27,591/ 1 /-. Out of this amount the trial court allowed a sum of Rs. 9,75517 /3 on account of the half costs of construction and interest thereon and expenses incurred for house-tax, watertax, legal expenses and repairs. The net amount thus awarded to the plaintiffs was Rs. 17,6701919. As regards the partition of blocks Nos. 206 and 207, the trial court held that in view of the method of construction of the blocks it was not possible to make D partition in equal shares and therefore the trial court directed that the two blocks should be auctioned in separate lots and the parties should be at liberty to bid at the auction and the parties would have equal rights to the amount of the auction. Aggrieved by the judgment of the trial court both the parties preferred appeals to the High Court of Madhya Pradesh, namely, First Appeals Nos. 19 and 23 of 1957. The defendant's appeal was registered as Civil E First Appeal No. 19 of 1957 and the plaintiffs' appeal was registered as Civil First Appeal No. 23 of 1957. Both the appeals were heard and disposed of by a common judgment by the High Court which modified the trial court's finding as to the income of blocks 206 and 207 to the extent of Rs. 803 / 5 / 3 by reducing the income of the two blocks by that figure. The total income was thus reduced from Rs. 41,829/3/7 to Rs. 41,015/14/4 with the corresponding F reduction in the amount of interest. The High Court affirmed the finding of the trial court that the defendant was liable to pay interest on the half share of the rental income on the ground that the relationship between the parties was in the nature of a trust under s. 90 of the Trusts Act (Act II of 1882). The plaintiffs' appeal No. 23 of 1957 was allowed to the extent of Rs. 4,942/9/- and\n\nafter adjustment, the plaintiffs' claim was decreed for Rs. 22,103/-.\n\nThe first question for consideration in these appeals is whether the High Court was right in granting interest to the plaintiffs on their share of rental income to the extent of Rs. 6,676/7 /3 for the period prior to the institution of the suit. It was argued by the Solicitor-General on behalf of the appellant that the High Court was in error in holding that the relationship between the parties was governed by s. 90 of the Trusts Act and the plaintiffs were therefore entitled to interest on their share of rent under the provi\n\nL/S5SCI-13\n\n&U?RE~E COURT REPORTS\n\n[1966) SUPP. 8.C.R.\n\nsions of s. 23 of that Act. In our opinion, the contention put forward by the SolicitorGeneral is wellfounded and must be accepted as correct.\n\nIt is well-established that interest may be awarded for the period prior to the dale of the institution of the suit if there is an agreement for the payment of interest at fixed rate or if interest is payable by the usage of trade having the force of law, or under the provisions of any substantive law as for instance s. 80 of Negotiable Instruments Act or s. 23 of the Trusts Act. It is admitted in the present case that the two agreements between the parties dated July 2, 1937 and July 16, 1937 did not provide for payment of interest on the rent~! realised by the defendant on the joint properties. Nor is interest payable by virtue of any provision of the law governing rhe case. U!!der the Interest Act, 1839, the Court may allow interest lo the plai;11iff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument. But it is conceded that the position in the present case is different. It was suggested by Mr. S. P. Sinha on behalf of the respondents that interest ma; be awarded under the I ntercst Act which contains a provision tJiat \"interest shall be payable in all cases in which it is now payab:~ by law''. Hut this provision only applies to cases in which the Court of Equity exercises jurisdiction to allow interest.\n\nThe legal position has been explained by the Judicial Committee in Bengal Na1•r>ur Rly. Co. Ltd. v. Ruttanji Ramji(') at p. 72 as follows:\n\n\"As observed by Lord Tomlin in Maine and New Brunswick Ekclrical Power Co. v. Hart, 0929) A.C. 631. alp. 640; (AIR 1939 PC 185 at p. 188), 'In order to invoke a rule of equity it is necessary in the first instance to establish the existen,:e of a state of circumstances which attracts the equitable jurisdiction, as, for example, the non-performance of a contract of which equity can give specific performance'.\" The decision of the Judicial Committee in Bengal Nagpur Rly. Co.\n\nLtd. v. Rullanji Ramji('I was relied upon by this Court in Tlzawardas Pherumal v. Union of India(') in rejecting a claim for interest.\n\nIn that case. a contractor entered into a contract with the Dominion of India for the supply of bricks. A clause in the contract required all disputes arising out of or relating to the contract to be referred to arbitration. The dispute having arisen. the matter was referred lo arbitration and the arbitrator gave an award in the contractor's farnur. The Union of India which has succeeded to the rights and obligations of the Dominion, contested the award on various grounds one of which was the liability to pay interest on the amount awarded. It was held by this Court that the interest awarded to the contractor could not, in law, be awarded and the arbitrator is not a Court within the meaning of the Interest Act, 1839 and. in any event. interest could only be awarded if there was\n\n(') f..5 I.A. 66.\n\n(') [1955) 2 S.C.R. 48.\n\nF ,\n\n' F ~;\n\nVITIIAL DAS v. RUPOHAND (Ramaswami, J.) 169\n\na debt or a sum certain payable at a certain time or otherwise by virtue of some written contract and there must have been a demand in writing stating that interest will be demanded from the date of the demand. The same view has been expressed by this Court in two later cases-Union of India v. Rallia Ram(') and Union of India v. Watkins Mayor and Co.(').\n\nIt was, however, pointed out for the respondents that the defendant was in possession of the entire properties as co-owne after the dissolution of the partnership by the document dated July 16, 1937. It was argued that the defendant was realising rents of all the properties and he was in the position of a constructive trustee under s. 95 of the Trust Act and was liable therefore to pay interest on the plaintUfs' share of rent under s. 23 read with s. 95 of the Act. We do not consider there is any justification for this argument. Section 90 of the Act states:\n\n\"Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rii:hts of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to payment by such persons of their due shares of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage.\" Section 95 provides as follows:\n\n\"The person holding property in accordance with any of the preceding sections of this Chapter must, so far as may be, perform the same duties and is subject, so far as may be, to the same liabilities and disabilities, as if he were a trustee of the property for the person for whose benefit he holds it:\n\nProvided tfl!'t (a) where he rightfully cultivates the property or employs it in trade or business, he is entitled to reasonable remuneration for his trouble, skill wnd loss of time in such cultivation or employment; and (b) where he holds the property by virtue of a contract with a person for whose benefit he holds it, or with any one through whom such person claims, he may, without the permission of the Court, buy or become lessee or mortgagee of the properly or any part thereof.\" Secfrlll 23 reads as follows:\n\n\"Where the trustee commits a breach of trust, he is liable to make good the loss which the trust property or the benefi ciary has thereby sustained, unless the beneficiary has by\n\n(1) A.l.H. I!lti~ S.C. 1!330, L/S5SCI-l :J(o)\n\n('J A.I.n. !D66 s.c. 275.\n\n170 SUPRfilIE COURT REPORTS\n\n(1966] SUPP, S.C.R,\n\nfraud induced the trustee to commit the breach;-or the beneficiary, being competent to contract,· has himself, without coercion or undue influence having been brought to bear on him, concurred in the breach, or subsequently acquiesced therein, with full knowledge of the facts of the case and of his rights as against the trustee.\n\n- . A trustee committing a breach of trust is not liable to pay interest. except in the following cases: -\n\n(a) where he has actually received interest;\n\n(b) where the breach consists in unreasonable delay in paying trust money to the beneficiary;\n\n(c) where the trustee ought to have received interest, but.\n\nC has not done so;\n\n(d) where he may be fairly presumed - to have received\n\n\\ interest. ·\n\nHe is liable, in case (a), to account for the interest actually received, and, in cases (b), (c) and (d) to account for simple interest at the rate of six per cent. per annum, unless the Court otherwise directs. . • • . .. • . • ,.\n\nWe do not agree with the contention of the respondents that s. 90 of the Trusts Act applies to this case. A co-owner in possession of all the joint properties does not become a trustee by the mere fact of his collection of the full amount of rent from the tenants. If the co-owner is to be clothed with the status of a trustee it must be shown that he has gained some advantage in derogation of the other co-owners interested in the property and that he gained .such an advantage by availing himself of his position as co-owner.\n\nIn the present case, there is no allegation made by the plaintiffs that . the defendant has gained any advantage in derogation of the rights of the plaintiffs, nor is there any finding of the lower courts that -the defendant gained any advantage by availing himself of his\n\nposition as co-owner. We shall. however. assume in favour of the respondents that the defendant is in the position of a constructive trustee in view of the provisions of s: 90 of the Trusts Act. Even upon that assumption we are of opinion that the defendant is not liable to pay interest to the plaintiffs for their share of the rent of _\n\nthe properties. The reason is that the trustee is liable to pay interest G only if he commits a breach of trust under s. 23 of the Trusts Act.\n\nThere is also the restriction contained in s. 23 of the Trusts Act. namely, that a trustee committing a breach of trust is not liable to pay interest except in the cases mentioned in that section. It was argued by Mr. S. P. Sinha for the respondents that the defendant was liable to pay interest under s. 23(b) of the Trusts Act because there was unreasonable delay in paying the trust money to the beneficiary. We are unable to accpt this argument n• correct. In\n\n. ..J\n\nVITHAL DAS v. RUPCHAND (Ra . .nswami, J.) 171\n\nour opinion, s. 23(b) contemplates oases where there is an obligation on the part of the trustee to pay the trust money to the beneficiary at fixed intervals or on demand. In our opinion, there is no question of breach of trust on the part of the defendant in the present case and the provisions of s. 23(b) of the Trusts Act are not attracted. The view that we have expressed is borne out by several authorities. In Blogg v. Johnson('), Lord Chelmsford, L.C. stated that \"the Court will not charge an executor who has been guilty of delay in accounting, with interest on arrears of income unpaid by him''. In that, case, X was entitled to a life income from the estate of her husband, and died in 1861. A bill was filed by her executor, in 1862, against the executor of her husband's will, who had been his partner in business, for an account of income due to her estate; in 1863 accounts were directed. In 1866 a certificate was made, finding that a large sum was due from the husband's executor. It was held by Lord Chelmsford, L.C. that he was not chargeable with interest before the date of the certificate. Again, in Silkstone and Haigh Moor Coal Co. v. Edey('), it was held by the Chancery Court that upon the setting aside of a sale by a trustee of trust property to himself, and the reconveyance of the property to the beneficiaries, it is not the practice of the Court to charge the trustee with interest on the rents and profits received by him since the date of the sale. Interest was, however, charged on arrears in some cases as in Malland v.\n\nGray(\") and Guildrey v. Stevens('), but these cases fall within the range of another principle of equity that where a1n executor or a trustee unnecessarily detains money in his hand which he ought either to have invested or to have paid over to the person entitled to it, he will have to pay interest for it. As Lord Chelmsford, L.C. observed in Blogg v. Johnson(') at p. 228:\n\n\"Where money is thus improperly retained, it appears to me to be immaterirul how the sum has arisen, whether from a legacy, or a distributive share, or a residue, or the arrears of income. In the latter case, the claim for interest is not made on account of the arrears, but for the improper keeping back or a sum of money, from whatever source derived, which the executor or trustee ought to have paid over.\" We have already given reasons for holding that the provisions of s. 23(b) of the Trusts Act do not apply to the present case and the plaintiffs are not entitled to claim any interest on arrears of rent and the High Court has fallen into an error in granting such interest.\n\nThe next contention raised on behalf of the appellant is that the Commissioner examined the accounts and submitted his report from July 2, 1937 to December 31, 1954 and the High Court was not justified in granting a decree to the plaintiffs for the subsequent\n\n(1) 1867 2 Ch.A. 225,\n\n( 8)\n\n6~ E.R. 744. (') [1900] ! Oh. 167,\n\n(') 46 L.T. 761,\n\n1•9\n\n~ SL'PR~:llR COL'l\\T REPORTS [1966] BUPP. s.c.R.\n\nperiod from January I, 1955 to April l I. 1957 on the basis of the A figures found from the Commissioner's report. It was argued that the High Court had no basis for assuming that the same rental income was recc1•1ed by the defendant for the period from January\n\nI. 1955 to April 11. 1957 as for the prior period. In our opinion. there is great force in this argument and we should, in the normal '-:>- course, rconnd the cse to the High Court for a finding as to the B accounts of the subse4uent period. Mr. Sinha, however, pointed out that the litigation commenced in 1942 and has already been protracted ton Ion~. W do not, therefore. wish to remand the case to the H'gh Court for further inquiry. Having examined the evidence on the record of this case, we consider that, in the circumstances. a sum of Rs. 2.400:- (instead of Rs. 3,100/-) for the period from January I. 1955 to April 11. 1957 should be granted lo the plain- C tiffs as their share of profits.\n\nWe direct that the interest may be ranted to the plaintiffs at the rate of 6 per cent p.a. from November 20. 1962 which is the date of the final decree on the amount found due to the plaintiffs.\n\nTwo other points were raised by the Solicitor-General in the course of argument. It was pointed out, in the first place. that First Appeal No. 23 of 1957 filed by the plaintiffs in the High Court was barred by limitation and the High Court should have dismissed the appeal on that ground. It was argued that the trial court's judgment was delivered on April 11. J 957 and the appeal to the High Court was filed on July 22, 1957. A certified copy of the judgment was delivered to the plaintiffs on May 4, 1957 but the endorsement on the certified copy with regard to the date was fraudulently made. An application was made by the defendant to the High Court on November 20. 1961 drawing the attention of the High Court with regard to the endorsement on the certified copy of the judgment. There is. however, no reference in the judgment of the High Court on the question of limitation and it should, therefore. be taken that the point was not pressed on behalf of the defendant at the time of the hearing of the appeal by the High Court. It is, therefore. not possible for us to entertain the argument of the appellant al the present stage. in the absence of any finding of the High Court. The other objection put forward by the Solicitor-General is that the High Court has not taken into account vacancies in the computation of the rental income due to the plaintiffs. It was said that the High Court was wrong in holding that the defendant was liable as a trustee for the rents he ought to have realised even though there was no letting of the building. The Solicitor-General may be right in his argument that the defendant cannot be held liable as a constructive trustee for the rent he has not realised from the tenants and for the premises which were not let out to tenants and which had been lying vacant. but the ground upon which the High Court has made the defendant liable is different. The High.' Court bas taken the view that the defendant has\n\nVITHAL DAS v. RUPCITAND (Ramaswami, J.) '173\n\nnot kept proper accounts of the income of the rents realised from the shops. In the absence of proper accounts it is not possible to accept the case of the defendant regarding the vacancies. In our opinion, the finding of the High Court on this point is not vitiated by any error of law and the argument of the Solicitor-General must be rejected on this aspect of the case.\n\nFor the reasons already expressed, we hold that these appeals should be partly allowed with proportionate costs and the decree of the High Court dated November 20, 1962 should be modified to the extent indicated in this judgment.\n\nAppals allowed in part.", "total_entities": 47, "entities": [{"text": "VITHAL DAS", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "VITHAL DAS", "offset_not_found": false}}, {"text": "A\n\nRUPCHAND & ORS", "label": "RESPONDENT", "start_char": 11, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "RUPCHAND & ORS", "offset_not_found": false}}, {"text": "K. SUB!IA RAO", "label": "JUDGE", "start_char": 49, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "K. 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{"document_id": "1966_1_174_179_EN", "year": 1966, "text": "COMMISSIONER OF WEALm TAX WEST BENGAL\n\nIMPERIAL TOBACCO CO. OF INDIA LID.\n\nApril 15, 1966\n\n[K. N. WANCHOO, J. c. SHAii AND s. M. Soon. JJ.J\n\nWealth Tax Act (37 of 1957), ss. 17(b) and 27-Divergence of views in High Courts as to meaning of \"lnjormation\" in s. 34(1)(b) Income Tax Act which is in pari rnateria 1vith s. 17(b)-Duty of Tribunal to make re/<!rence to High Court.\n\nOrders of reassosmnent under s. 16(3) read with s. 17(b) of the 0 Wealth Tax Act were passed by the Wealth Tax Officer in respect of two assessment years. and by those orders, amounts which had been formerly allowed as deduction were included in the total\n\nwealth of the respondent. The orders were set aside by the Tribu- nal on the ground that the reassessment was based on a mere change of opinion on the part of the Officer, because, there was no \"information\" in his possession, as required by s. 17(b), which could lead him to believe that chargeable wealth of the respondent had escaped as- D sessment. The appellant's applications to the Tribunal and the High Court, for a reference to the High Court, were dismissed.\n\nIn appeal to this Court, HELD: The Tribunal should be directed to make n reference either to the High Court under s. 27 (I) or to this Court under s. 27\n\n(3A) of the Wealth Tax Act. [179 G].\n\nThere is a divergence cxf opinion among the High Courts as to the E meaning of the word \"information\" in s. 34(1)' (b) of the Income-tax Act, and some High Courts have taken the view that a change of opinion by the Income-tax Officer, in certain circumstances. will justify the issue of notice under s. 34 (l)(b) of the l'ncome-tax :Act. Since that section is in pari materia withs. 17(b) of the Wealth Tax Act, a question of law did arise as to the interpretation of the word \"information\" in s. 17(b) of the Wealth Tax Act and it should have been referred by the Tribunal to the High Court. [179 El F , C!v!L APPELLATE JURrsmcnos: Civil Appeals Nos. 1062 and 1063 of 1966.\n\nAppeals by special leave from the judgment and order dated February 15. 1965 of the Calcutta High Court in matters Nos. 231 and 232 of J 964.\n\nR. M. l/azarnavis, K. D. Karklranis, R. H. Dlrebar and R. N.\n\nG Sachthey, for the appellant.\n\nA. K. Sen, T. A. Ramachandran, 'J. B. Dadachanji, 0. C.\n\nMathur and Ravinder Narain, for the respondent.\n\nThe judgment of the Court was delivered by\n\nWancboo, J. These two appeals by special leave arise out of B two applications by the appellant to the Income-tax Appellate\n\nI \"\"'\n\nw. TAX COMMR. v. IMPERIAL TOBACCO (Wanchoo, J.) 175\n\nA Tribunal for reference to the High Court of a question of law, which was formulated as follows: -\n\n\"Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the reassessment proceedings under s. 17(b) of the Wealth Tax Act were not validly initiated and in setting aside the same.\" The facts which led to the applications for reference are briefly these. The respondent submitted wealth-tax returns for the years 1957-58 and 1958-59. For the year 1957-58 the respondent claimed that an amount of Rs. 51 lakhs and odd being provision for taxation and another amount of Rs. 37 lakhs and odd being provision for contingencies, being ascertained liability, should be allowed as deduction from the total wealth. For the year 1958-59, the respondent claimed Rs. 31 lakhs and odd being provision for contingencies as ascertained liability as deduction from the total wealth.\n\nAssessment for the year 1957-58 was completed on December 30, 1957 and the Wealth-tax Officer accepted the contention of the respondent and allowed the claim for deduction. Subsequently the Commissioner of Wealth-tax by his order dated December 29, 1958 passed under s. 25(2) of the Wealth Tax Act, No. XXXVII of 1957, (hereinafter referred to as the Act) disallowed the deduction of Rs. 51 lakhs and odd being the provision for taxation for the assessment year 1957-58. The order of the Wealth-tax Officer allowing deduction for contingencies for the assessment year 1957-58 however stood. The assessment for the year 1958-59 was completed on December 9, 1958 and deduction was allowed for contingencies only. It may be added that we are not concerned in the present appeals so far as deduction for provision for taxation is concerned. On March 22, 1960, the Wealth-tax Officer completed the assessment of the respondent for the year 1959-60 and disallowed the claim for deduction of the provision for contingencies.\n\nOn June 2, 1960, the Wealth-tax Officer issued two notices under s. l 7(b) of the Act for reassessment of net wealth for the years 1957-58 and 1958-59. On September 24, 1961 orders of reassessment under s. 16(3) read withs. 17(b) of the Act were passed in respect of the assessment years 1957-58 and 1958-59 and by these orders the amounts which had been formerly allowed as deduction with respect to contingencies were included in the total wealth of the respondent. The respondent then went in appeal against the two reassessment orders and the Appellate Assistant Commissioner sustained the decision of the Wealth-tax Officer with respect to the reassessments in question. The case of the respondent was that the Wealth-tax Officer had no information on the basis of which he could proceed to reassess the net wealth of the respondent and in this connection reliance was placed on the words \"in consequence of any information in his possession\" appearing in s. l 7(b) of the Act.\n\n176 ~L\"PREllE CO\\:RT REPORTS\n\n[1966] SL\"PP. S.C.R.\n\nThe re5pondent then went in appeal to the Appellate Tribunal and his contention there was that the issue of notices under s.\n\nI 7(b) of the Act was invalid as it was based on a mere change of opinion on the part of the Wealth-tax Officer, as at that time there was no informat; on in the possession of the Wealth-tax Officer which could lead him to believe that the net wealth chargeable to tax hd escaped assessment. It was contended that such information must be information which came into possession of the\n\nWealth-tax Olticer subsequent to the making of the orig; nal assessment and that the information must lead him to believe that income chargeable to tax had escaped assessment.\n\nThe Tribunal accepted this contention of the respondent.\n\nIt may be pointed out that the assessment made by the Wealth-tax Officer for the year\n\n1959-60 was taken in appeal to the Appellate Assistant Commissioner by the respondent and the respondent's appeal was dismissed in November 1960. The Tribunal pointed out that if the Wealth-tax Officer had waited till after the decision of the Appellate Assistant Commissioner about the assessment for the year\n\nI 959-60 and then issued notices there would have been sufficient information for the purpose of s. I 7tb) with the Wealth-tax Officer to authorise him to issue notice thereunder; but as the Wealth-tax Officer issued the notices in June 1960 before that appeal was decided, it was only a case of change of opinon by the Wealth-tax Officer which did not justify issue of notices under s. I 7(b).\n\nThe Tribunal also pointed out that the departmental representative was specifically asked what the information was upon which the Wealth-tax Otfaer came to the conclusion that taxable wealth had escaped assessment. The departmental representative was unable to point to any specific information which came into the possession of the Wealth-tax Officer and which could lead him to issue the notices in question.\n\nThe Tribunal therefore held that the reassessment proceedings under s. I 7(b) for the years 1957-58 and 1958-59 were not validly initiated and set them aside. Thereupon the appellant applied to the Tribunal for making references under s. 27(1) of the Act. The Tribunal rejected the applications.\n\nThe appellant then applied to the High Court under s. 27(3) of the Act for direction to the Tribunal to state a case.\n\nThe High Court however rejected the applications summarily.\n\nThereupon the appellant applied to thi> Court for special leave which was granted; and that is how the matter has come before us.\n\nThe main contention that ha, been urged on behalf of the appellant before us is that there is divergence of opinion among the High Courts on the question as to what constitutes \"information\" for the purpose of s. 34(1)(b) of the Indian Income-tax Act.\n\nNo. II of 1922, (hereinafter referred to as the Income-tax Act).\n\nH That section is in pari materia with s. I 7(b) of the Act and therefore a question of law did arise which should have been referred to the\n\n• A\n\n- c\n\nw. TAX COM1lR. v. IMPERIAL TOBACCO (Wanclwo, J.) 177\n\nHigh Court for its decision on the question raised by the appellant. Reliance in this connection is placed on the deci5ion of this Court in Maharajkumar Kamai Singh '\" Commissioner of Income- /ax Bihar(') where this Court held that \"the word 'information' in section 34(1)(b) included information as to the true and correct state of the law, and so would cover information as to relevant judicial decisions\". A further question was raised in that case, namely, \"whether it would be open to the Income-tax Officer to take action under s. 34(1) on the ground that he thinks that his orii:inal decision in making the order of assessment was wrong without any fresh information from an external source or whether the successor of the Income-tax Officer can act under s. 34 on the ground that the order of assessment passed by his predecessor was erroneous\". That question was not decided by this Court in that case, though this Court pointed out that in construing the scope and effect of s. 34, the High Courts had expressed divergent views on the point. It is urged on behalf of the appellant that the precise question left undecided by this Court in Maharajkumar Kamalsingh's case(') arises in the present case, and as there are divergent views taken by the High Courts on that question, a question of law did arise on the order of the Appellate Tribunal and therefore the Tribunal should have made a reference.\n\nIn Commissioner of Income-tax Bombay v. Sir Mohomed Yusuf Ismail(') it was held by the Bo:nbay High Court as far back as 19-43 that under s. 34 a mere change of opinion on the same facts or on a question of law or the mere discovery of a mistake of law is not sufficient information within the meaning of s. 34 and that in order to take action under s. 34 there must be some information as a fact which leads the Income-tax Officer to discover that income has escaped or has been under-assessed.\n\nThe same view was taken in a later case by the Nagpur High Court in IncomMax A ppllate Tribunal Bombay v. B. P. Byramji\n\n& Co.(') where it was again emphasised that a mere change of opinion by the Income-tax Officer is no ground for taking action under s. 3-4.\n\nFurther in Bhimraj Pannalal v. Commissioner of Incometax Bihar(') it was held by the Patna High Court that \"an order of assessment made after investigation by a particular officer should not at his sweet will and pleasure be allowed to be revised merely because he changed his opinion and that there must exist something either suppressed by the assessee or a fact or a point of law which was inadvertently or otherwise omitted to be considered by the Income-tax Officer, before he can proceed to act under s. 34; and a mere change of opinion on the same facts and law is not covered by tl!at section.\" -----c--------- -·--------- (') [1959] Supp. I 8.C.R. 10, (19b9) ~5 LT.I\\. I.\n\n('! (19\"\\ 12 I.T.R. 8. uu~~ ~~·~-\n\n178 SUPREllE COURT REPORTS\n\n(1966] SUPP. 8.0.R.\n\nThe appellant on the other hand relies on some recent decisions which show that there is some divergence of opinion in the High Courts on this question.\n\nIn Salem Provident F1111d Society Limited v. Commissioner of Income-tax Madras(') the Madras High Court held that \"information for the purpose of section 34 need not be wholly extraneous to the record of the original assessment. A mistake apparent on the face of the order of assessment would itself constitute 'information'; whether someone else gave that information to the Income-tax Officer or whether he informed himself was immaterial.\"\n\nIn Commissioner of Income-tax v. Rathinasabhapathy M11da- 1iar(') the Madras High Court again held that \"the discovery of the Income-tax Officer after he had made the assessments that he had committed an error in not including the minor's income in the father's assessment was 'information' obtained after the assessment, and even though all the facts were in the original records. the case was covered by section 34(1)(b) of the Income-tax Act and the reassessment was not invalid, and this was not a case of mere change of opinion on the same facts but a case of getting information that income had escaped assessment.\"\n\nJn Canara Industrial and Banking Syndicate Limited v. Commissioner of Income-tax, Mysore,(') the Mysore High Court held that \"if income had escaped assessment owing to the failure of the Income-tax Officer to understand the true implication of a notification. and the Income-tax Officer later on finds that on a correct interpretation of the notification the income was liable to be assessed. he can take proceedings under section 34 for assessment of such income; the word 'information' in section 34 is wide enough to apply to such a case.\"\n\nThe last case to which reference is made is Asghar Ali Mohammad Ali v. Commissioner of Income-tax(') wherein the Allahabad High Court held that \"the word 'information' used in the provision covers all kinds of information received from any person whatsoever or in any manner whatsoever; all that is required is that the Tncomo-tax Officer should learn something i.e. he should know something which he did not know previously.\" It was further held that \"if there is information leading to the belief that income has escaped assessment, the mere fact that this information has resulted in a change of opinion will not make section 34 inapplicable. A change of opinion is not sufficient for initiating proceedings under s. 34, only when such change of opinion is the result of a different method of reasoning. and not based on 'information'\".\n\n(') (19BI) 42 I.T.I\\ . .'>17.\n\n(') (19M) 61 LT.R. 479.\n\n(') (1964) 51 I.T.R. 204. (') (loo.I) 62 I.T.R, 962.\n\nA •\n\nB r\n\n~ )\n\n,- '\n\nJ.._'\n\ni '\n\nw. '.!'AX COMMR. v. IM:Pll!\\IAL TOBACCO (Wanchoo, J.) 179\n\nIt does appear that some High Courts at any rate are taking the view that a change of opinion by the Income-tax Officer in certain circumstances will be sufficient for the purpose of s. 34(1)\n\n(b) and will justify the issue of a notice thereunder. It may be added that after the decision of this Court in Maharajkumar Kamal Singh's case(') it is now settled that \"information in s. 34(J)(b) included information as to the true and correct state of law, and so would cover information as to relevant judicial decisions\" and that such information for the purpose of s. 34(l)(b) of the Income-tax Act need not be confined only to cases where the Income-tax Officer discovers as a fact that income has escaped assessment. To that extent the decision of the Bombay High Court in Sir Mohamed Yusuf Ismail(') has been over-ruled. That is why the Appellate Tribunal stated in its decision that if the notices in the present case had been issued after the decision of the Appellate Assistant Commissioner in the appeal from: the assessment for the year 1959-60, there would have been information in possession of t1ie Wealth-tax Officer to justify him in issuing notices under s. 17(b) of the Act. But in the present case the Wealth-tax Officer issued notices before that decision was known to him and the question is whether in the circumstances, in view of the later decisions of the High Courts to which we have referred, a question of law arose or not. The language of s. 17(b) of the Act is in pari materia with the language of s. 3'4(l)(b) of the Income-tax Act and therefore the decisions under s. 34([)(b) of the latter Act would be relevant in construing the scope and effect of s. l 7(b) of the Act. There does appear to be divergence of opinion among the High Courts as to the meaning of the word \"information\" in section 34(l)(b) of the Income-tax Act, and in view of that divergence we are of opinion that a question of law did arise in the present case as to the interpretation of the word \"information\" ins. 17(b) of the Act and should have been referred by the Tribunal.\n\nWe therefore allow the appeals, set aside the order of the High Court and direct the Tribunal to state a case referring the question of law arising in these cases in the form suggested by the appellant. The Tribunal will be free to decide whether to refer the matter to the High Court under s. 27(1) or to this Court under s. 27 (3A) of the Act. Costs of this Court will abide the result of the reference.\n\nAppeals allowed.\n\n(') [1059] Supp. I S.C.R. 10.\n\n\" Q-1-t. 12 I.T.R. 8.", "total_entities": 55, "entities": [{"text": "COMMISSIONER OF WEALm TAX WEST BENGAL", "label": "PETITIONER", "start_char": 0, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF WEALTH TAX WEST BENGAL", "offset_not_found": false}}, {"text": "IMPERIAL TOBACCO CO. OF INDIA LID", "label": "RESPONDENT", "start_char": 39, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "IMPERIAL TOBACCO CO. OF INDIA LID", "offset_not_found": false}}, {"text": "K. N. WANCHOO, J.", "label": "JUDGE", "start_char": 92, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "K.N. 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{"document_id": "1966_1_188_197_EN", "year": 1966, "text": "RAM PRASAD DAGDURAM\n\nVUAY KUMAR MOTILAL MIRAKHANWALA & OfIS.\n\nApril 18, 1966\n\nA. K. SARKAR C. J., J. R. MuuHOLKAR AND R. S. BACHAWAT, JJ.J\n\nCode of Civil Procedure (Act 5 of 1908), 0. 1, r. 10(1) and (2}- Scope of.\n\nIndian Limitation Act (9 of 1908), s. 22 and Art. 132-Addition of partieuit when deemed to be filed-Suit for foreclosure-Period of limitation-Indian Act extended to Part B State-Period o! limitation abridged by Indian Act-Law of limitation applicable.\n\nThe appellant executed a mortga, qe in 1934 in favour of the proprietrix of a firm in the State of Hyderabad. The mortgage amount became due in 1943. The first respondent, who was the daughter's son of the mortgagee, claiming to be her adopted son. filed a suit for foreclosure of the mortgage, m 1954, after the death of the mortgagee. The trial Court dismissed the suit on the ground that the adoption was not established. The first respondent appealed to the High Court and, pending the appeal, applied for adding his natural mother as a co-plaintiff and her two sisters as defendants as they were not willing to join as plaintiffs, and sought consequential amendments in the plaint. The High Court granted the application under 0. !, r. 10(1), Civil Procedure Code, on 4th November, 1958 and thereafter, disp05ed of the appeal by passing a preliminary decree for foreclosure in favour of the added parties. The High Court did not go into the question of adoption but dismissed the first respondent's suit.\n\nHELD: (Per Sarkar, C.J.) : The order adding parties cannot be supported under either sub-r.(l) of sub-r. (2) of 0. 1, r. 10. Sub-r. (1) provided for addition of plaintiffs and could not therefore justify the addition of defendants. In the case of addition of parties under sub-r. (2), the provisions of s. 22 of the Limitation Act admittedly apply and under it in the present case, a suit by the added porties, on the date they were added, would have been barred. It would have been futile, therefore, to make an order under sub-r. (2). (190 G-H: 191\n\nD-EJ Ravji v. Mahadev's case (l.L.R. 22 Born. 672) doubted. There is no reason to think that s. 22 of the Limitation Act does not apply to\n\n0. 1, r. 10, sub-r. (1 ). (191 G] A person suing as the proprietor of a firm does not sue in a representative capacity. He sues in his personal capacity. [192 E-F]\n\nPer Mudholkar and Bachawat JJ: The High Court had power to G\n\nJoin the co-plaintiff under 0. 1, r. 10(1) and to join her sisters as defen- dants under 0. 1, r. (2). and to allow onsequential amendments of the plaint under 0. VI, r. 17, but, as regards the added partles, by reason of s. 22(1) of the Indian Limitation Act, 1908. the suit must be regarded as instituted on the date on which they were added and was therefore barred by limitation. [197 CJ\n\nIn 1951, the Hyderabad Limitation Act was repealed and the H Indian Limitation Act was extended to the State. The Indian Act ab tidged the period of limitation for the enforcement of the mortgage,\n\n\"! ,,\n\n' I'\"\n\nItAl PRASAD t', VIJAY KU~IAR (8arkar, 0. J.)\n\n- - .-. ....,;,-~-r----·\n\nA 'but did not impair or take away any vested right. Therefore, on the date of the institution of the suit, the Jaw of limitation applkable\n\nws the Indian Act. [194 E-F] \\ -\n\nThe respondent, as theoriginal plaintiff, sued in his own right. and on his own behalf. There; fore, the parties added must be regarded as a new plaintiff and new defendant respectively. Section 22 of the Limitation Act in express terms applies \\vhenever a new plaintiff or a new defendant is substituted under 0. 1, r .. 10(1) or (2). The effect of the section is that the suit must be deemed to have been instituted by the new plaintiff when he was made a party. [196 E-G]\n\nRavji v. Mahadev~-(1897) I.L.R. 22 Bom. 672, disapproved.\n\nSince the suit in the instant ase was for foreclosure only it was governed by Art. 132 of the Limitation Act and must be regarded as .\n\nC instituted in November 1958, beyond 12 years from the date when the mortgage money was due. [195 CJ\n\nVasudeva Mudaliar v. K. S. Shriniwas Pillai IL.R. 34 I.A. 186, applied-\n\nOVJL APPELLATE JURISDICTION: Civil Appeal No. 1046 of\n\n1963. ' -\n\n., D Appeal from the judgment and decree dated November 17,\n\n1959 of the Bombay High Court in First Appeal No. 484 of 1957 from Original Decree.\n\nS. T. Desai, and J. B. Dadachanji, for the appellant.\n\nSarjoo Prasad, B. P. Singh and Naunit Lal, for. respondents Nos. 1 and 2.\n\nGanpat Rai, for respondent No. 4.\n\nSARKAR, C. J. delivered a separate Opinion. The Judgment of MuDHOLKAR and BACHAWAT JJ. was delivered by BACHAWAT, J.\n\nSarkar C.J. This appeal arises 'out of a suit filed by the respondent Vijay Kumar against the appellant on February 9, 1954 to enforce a mortgage. The plaint stated that the appellant executed the mortgage on December 13, 1934 in favour of Tarabai, . the proprietor of the firm of Narayandas Chunilal, and that the amount secured on it became due on December 13, 1943. Vijay Kumar claimed that he was adopted by Tarabai on July 16, 1948 as a son to her deceased husband Motilal Hirakhanwala and became entitled to enforce the mortgage as her sole heir on her death on April 23, 1952. After setting out the particulars of the mortgage, Vi jay Kumar. asked for a decree for foreclosure.\n\nIn his written statement the appellant admitted the mortgage but denied that Vijay Kumar had been adopted by Tarabai and stated t:bat she had died leaving as her heirs three daughters, Rajkumari, Premkumari and Mahabalkumari, the mother of Vijay Kumar Besides denying Vijay Kumar's right to enforce the mortgage, the appellant took various other defences to the action to which it is unnecessary for the purpose. of this appeal to refer.\n\nSUPREME COURT REPORTS\n\n(1966] SUPP. 8.C.B.\n\nThe learned District Judge who heard the suit, held that the I adoption of Vijay Kumar had not been established and on that ground alone he dismissed it, having rejected he other defences raised by the appellant. Vijay Kumar appealed against that judgment to the High Court of Hyderabad but that appeal was, on a subsequent reorganisation of States, transferred to the High Court of Bombay. Thereafter on November 3, . 1958, Vijay . B Kumar made an application in the appeal for an order adding his mother Mahabalkumari as a co-plaintiff with him as she was willing to be so added, and her sisters Rajkumari and Premkumari \"who were not available for joining in the suit as plaintiffs\", as\n\ndefendants. He also sought permission to add a new paragraph to the plaint, in which after reiterating his right to enforce the mortgage as the adopted son of Motilal and Tarabai, he stated.\n\nC \"In case, however, the plaintiff's adoption is held not to be proved or not to be valid, the estate of Motilal and Tarabai Hirakhanwala and of Mis Narayandas Chunilal will vest in Tarabai's three daughters, viz.; Rajkumari,' Premkumari and Mahabalkumari\".\n\nThe prayers in the plaint were also sought to be amended by asking that the decree sought might be passed in favour of Vijaykumar and Mahabalkumari. . . . n\n\nThe appellant opposed this application but it was allowed by the High Court. The records of the appeal were, thereafter, reconstituted by adding Mahabalkumari as an appellant and Rajkumari and Premkumari as respondents and amending the plaint\n\na~ sought. Premkumari filed a written statement denying the adoption of Vijay Kumar and his right to enforce the mortgage.\n\nJI Rajkumari never appeared in the proceedings arising out of the suit. The appeal was thereafter heard by the High Court and allowed. The High Court refused to go into the question of adoption and passed a preliminary mortgage decree for foreclosure in\n\nfavour of Mahabalkumari, Rajkumari and Prcmkumari and furr ther directed that the suit as brought by Vijay Kumar would stand dismissed. . The present appeal has been brought by the original 11 defendant against this judgment of the High Court under a certificate granted by it.\n\nI think that Mr. S. T. Desai for the appellant was right when he said that the order adding parties could not be supported. The High Court purported to make the order under sub-r. (I) of 0. 1, r. (10) of the Code of Civil Procedure. We were not called upon G • by counsel to consider any other provision. That sub-rule, however, cannot justify the order, for it only permits addition of a plaintiff and does not provide for the addition of a defendant while the order directs addition of both a plaintiff and two defendants. Was it then properly made in so far as it added a plaintiff?\n\nI do not think so. The addition of Mahabalkumari as a plaintiff H -,, r could not be made under the sub-rule unless it was necessary for the determination of the real matter in dispute. Now, adding her\n\nn.A.:r.I Plti\\SAD I'. Vf.T.\\Y KUMAR (8a.rko-r, (} .. /.) lDl\n\nas a plaintiff would have availed nothing unless Rajkumari ; ind Premkumari were also added as defendants, and that could not be done under the sub-rule.\n\nNo decree could have been passed in her favour alone if the case of adoption failed, for she would then be entitled to the mortgagee's right along with her sisters.\n\nThe addition of Mahabalkumari as plaintiff only would have been futile: it would not have helped in the decision of any matter in dispute.\n\nNow, sub-r. (2) of 0. I, r. (10) permits the addition of both plaintiffs and defendants in certain circumstances.\n\nThe order however was not sought to be justified under that provision and there was good reason for it.\n\nIt was conceded-and in my opinion rightly-that in view of s. 22 of the Limitation Act, the suit as regards the parties added under this sub-rule had to be deemed to have been instituted when they were added.\n\nThis was also the view expressed by the High Court.\n\nNow it is not in dispute that a suit filed ot1 the date when the three >.isters were added. to enforce the mortgage would have been barred.\n\nWe may add that there is authority for the view that even the addition of defendants alone may attract the bar of limitation: see Ramdoyal v.\n\nJ1111me11joy('). Guravayya v. Datra1raya('). I think that the addition of Rajkumari and Prcmkumari as defendants was of the kind considered in these cases. Therefore, it would have been futile to add any of the parties under this sub-rule.\n\nIn view of the bar of limitation, such addition would not have resulted in any decree being passed and. therefore. the addition should not have been ordered.\n\nI am, however, not to be understood as holding that apart from the difficulty created by s. 22 the order could have been properly passed under the sub-rule. I have the gravest doubts if it could. It is unnecessary to discuss the matter further.\n\nThe High Court. relying on Ravji v. Mahadev,(') expressed the view that when a party is added under sub-r. (I l of 0. I, r. (I 0), s. 22 of the Limitation Act does not app; y and no bar of limitation arises.\n\nNo other reason was given by the High Court or suggested by counsel in this Court to avoid the bar of limitation imposed by s. 22. If the bar operated, no addition of parties could, of oourse, be made.\n\nAs I am of opinion that the order could not be justified by the terms of that sub-rule, it is not really, necessary for me to consider this question of limitation.\n\nI wish however to observe that, as at present advised, I am not <it all sure that s. 22 does not apply to an addition of parties under sub-r. (I) of r. (I Ol of 0. I. There is no principle to support such a view.\n\nNor do l think that Ravji's case(') clcorly expresses it.\n\nAll that is held-and that too in the judgment of one of the learned Judges only-was that when in a suit by a benamidar the real owner is\n\n(1) (1887) f.L.R. 14 f\\11. 'if1J.\n\n(2) (!' 04) LL.R. :!R Ho; . ._ IT. :21 118!-tS) I.I .R. :2~ TI1v11. li72.\n\nSVPHEME COURT REPORTS [ 1966] SUPP. s.LR.\n\nadded, it was really the original suit that was continued. Obvious- A ly, the learned Judge thought that he was dealing with a case where there was no real addition of parties.\n\nIt would seem that that is not the case where an order under the sub-rule is made.\n\nThat would be a case like that of a correction of a misdescription of a party for which a resort to the sub-rule would not be ncces F sary: Purslmtam Vmedbhai & Co. v. Manila/ & Sons.('). Then again Rarji's case(') does not seem to have been approved in later Bombay cases: see e.g. Krishnaji, v.\n\nHanmaraddi('). Further Ravji's easel'! would not support the order in hand if my reading of it is correct. The present is not a case of a continuation of the wiginal suit.\n\nHerc parties were :1dded to press their own rights which are in conflict with and antagonistic to those which were being pressed in the suit as originally framed.\n\nI do not consider it necessary to pursue this matter further on the present occasion.\n\nIt was then said that in the present case there was no substantial addition of parties as the original suit was in the capacity\n\nof a proprietor of the firm of Narayandas Chunilal and all that was done was to add persons who might be the real proprietors.\n\nThis was said in order to get out of the bar of limitation by show- D ing that it was the original suit that was continued in spite of the addition of parties. There seems to be authority for the view that when a suit is filed in a representative capacity, if it turns out to be doubtful w17cther that capacity existed or had continued, the proper representative or the owner, as the case may be, might be added even after the date when the suit would be barred.\n\nI will assume that these cases lay down the law correctly. hut they E do not, in my view. afford any assistance in the present case.\n\nFirst, a suit by a person claiming to be the sole owner of the properties of a business carried on in a firm name, as Vijay Kumar's suit was, is not a suit in a representative capacity; he represents no one but himself.\n\nA firm is not a legal entity which could or had to be represented by any one else.\n\nAs is well known, a firm F means only the partner' taken together.\n\nThere is no such thin!! as the capacity of a prorrietor of a firm; the capacity of a proprietor of a firm is only the proprietor's individual capacity.\n\nSecondly, no authority has been brought to our notice which shows that if parties are added with a claim which is antagonistic to the claim of the original plaintiff in the suit, as has happened here. that would still be a case where the original suit should be deemed to have been continued.\n\nIt may be that if the suit had initially been filed in the fom1 in which it stood after the amendment, it would have been a good suit. as to which however I do not say anything on the preent occasion. If it were so. that would have been under the other\n\n( 1) f IQ61 l 1 S.C.R. 9H2.\n\n(1J (IR!IB) I.I .. R. 2~ B .. 111. 1\\12. (') ( 1934) I.L.R. 58 Born. 630.\n\n>- -·\n\nF -·\n\n- ;(\n\nRAM PRASAD v. VIJAY KUMAR (Bachawat, J.) 19:3\n\nprovisions of the Code permitting joinder of parties and erhaps also of causes of action when instituting a suit, none of which was or could be pressed for our consideration. These provisions are \"merely permissive and relate to what the plaintiff might do if he is so minded\": Sri Mahant Prayaga Doss v. The Board of Commissioners for Hindu Religious Endowments, Madras.(') That is not the case where addition of parties is sought under 0. l, r. (10), sub-rr. (]) and (2); such additions can only be made under the provisions of these sub-rules only.\n\nFor these reasons, I think that the order adding parties is insupportable. If that order goes, as it should, the decree which it; in favour of the added parties cannot stand, for they are then strangers to the suit.\n\nAs there is no decree in favour of Vijay Kumar and as in fact the suit considered as brought by him has been dismissed by both the courts below-by the High Court with the tacit approval-and there is no appeal by him, this appeal must be allowed.\n\nIn this view of the matter, I do not feel called upon to deal with the other grounds advanced by Mr. Desai.\n\nI would allow the appeal and set aside the judgment of the High Court and restore that of the trial Court. The appellant will not get the costs in any of the courts below or this Court.\n\nBachawat, J. On December 13, 1934 the appellant executed a mortgage in favour of one Tarabai, widow of Motilal Hirakhanwala. Tarabai had three daughters, Mahabalkumari, Rajkumari and Premkumari.\n\nOn July 16, 1948, Tarabai is said to have adopted Vijay Kumar as a son to her deceased husband.\n\nVijay Kumar is the natural son of Mahabalkumari.\n\nOn April 23. 1952, Tarabai died.\n\nOn February 10, 1954, Vijya Kumar claiming to be the adopted son and heir of Tarabai, instituted a suit for foreclosure of the mortgage executed in her favour.\n\nThe appellant contested the suit.\n\nOn December 30, 1955, the District Judge, Aurangabad dismissed the suit, holding that Vijay Kumar was not the adopted son and heir of Tarabai. Vijay Knmar preferred an appeal to the former High Court of Hyderabad. After the reorganisation of States, the appeal was transferred to the Bombay High Court. On an applicatior> made by Vijay Kumar on November 3, 1958, the High Court on November 4, 1958 made ah order for addition of Mahabalkumari as plaintiff and Rajkumari and Premkumari as defendants to the suit and for consequential amendments of the plaint. After the addition of the parties, the appeal came up for final disposal before the Higb Court. At the hearing of the appeal, the respondents submitted that the question whether Vijay Kumar was the adopted son of Tarabai should not be decided in this litigation and a decree should be passed in favour of the added parties on the footing that they were the heirs of Tarabai. The High Court accepted this submission, set aside the finding of the trial Court on the question of the adoption of\n\n(1) 1927 I.T .. R. 50 ?tin.cl. 41.\n\n[JB6tij St:Pl'. S.l\".I<.\n\nV1jay Kumar. dismissed the suit as brought by him and directed the trial Court to pas' the usual preliminary decree in favour or Mahabalkumari, Rajkumari and Premkumari.\n\nThe High Court held that the mortgage money tdl due on February 9, 1943 anu\n\nthe suit being inqituted within 12 years from this date, was not barred by limitation. lhe appellant now appeals to this Court on a cer11ticate granted by the High Court. The main question in this appeal is whether the claim of Mahabalkumari, Rajkumari and Premkumari to enfurcc the mortgage is barred by limitation.\n\nI he mortgage deed dated December 13, 1934 provided that the mortgage money wuuld be payable m annual instalment> within a period of nine Fasli years, and in the event of non-pay ment of live instalments, the mortgagee would be entitled to recover tbe entire mortgage money. The appellant did not pay any of the instalments.\n\nThe High Court rightly held that the deed gave the mortgagee an option to enforce the mortgage in the event ol non-payment of live instalments.\n\nIt was open to the mortgagee !lot to exercise this option. As the mortgagee did not exercise the option, the mortgage money fell due on the expiry of nine years. that is to say, on February 9. 1943. and limitation commenced to run from this date.\n\nOn December 13. 1934 when the mortgage was executed and on February 9. 1943 when the mortgage money fell due, the Hyderabad Limitation Act was in force.\n\nBy art. 133 of the Hyderabad Limitation Act, the pcrio:.J of limitation for a suit by a mortgagee for foreclosure was thirty years from the date when the money secured by the mortgage became due.\n\nBut as from April 1. 1951. the Hyderabad Limitation Ac.t was repealed and the indian Limitation Act. 1908 was extended to the State o[ Hyderabad by the PartB States\n\n(laws) Act (Act III of 19511 Prima facie. the Indian Limitation Act. 1908 which was in force on the date of the institution of the suit was the law of limitation applicable to the suit.\n\nOn behalf of the respondents, it was argued that by reason of the proviso to s. 6 of the Part-B States\n\n(laws) Act, 1951. art. 113 of the Hyderabad Limitation Act con tinued to apply to the suit.\n\nThere is no substance in this contention.\n\nThe respondents had no vested right in the law of procedure for enforcement of the mortgage.\n\nThey did not acquire under art. 133 of the Hyderabad Limitation Act any right or privilege as contemplated by the proviso to s. 6 o[ the Part-B States <Lawsl Act. 1951.\n\nNo doubt. art. 132 of the Indian Limitation Act. 1908 abridged the period of limitation for the enforcement of the mortgage.\n\nBut this abridgment did not impair or take away any vested right.\n\nSection 30 of the Indian Limitation Act. 1908 inserted by the Part-B States (Laws) Act, 1951 made suitable provi sion safeguarding vested rights in cases where the period prescribed was shorter than that prescribed by the corresponding law previ ously in force in the Part-B State.\n\n_;...\n\n'I.\n\nRA>I ¥ltASAJJ /', \\'l.L\\Y K; .\\[.\\]( (Bachawat, J.) 195\n\nIt was argued on behalf of the respondents that art. 14 7 of the indian Limitation Act applied to the suit.\n\nWe are unable to accept this contention.\n\nIn Vasudewi Mudaliar v. K. S. Shriniwas Pillai,(') the Privy Council held that Art. 147 applied only to an English mortgage as defined in the Transfer of Property Act before its amendment in 1929, as, in respect of such a mortgage only, the mortgagee could sue for \"foreclosure or sale.\" That decision has never been questioned and we see no ground for differing from it. The deed dated December 13, 1934 created an anomalous mortgage and conferred a right of foreclosure only upon the mortgagee. 1he mortgagee had no right to sue for sale in the alternative. The present suit was for foreclosure only, and was governed by art. 132 and not art. 147. The suit would be b\"rrcd by limitation if it were instituted on November 4, 1958 when Mahabalkumari, Rajkumari and Premkumari were added as purties to the suit.\n\nThe question is whether the suit should be regarded as having been instituted on November 4. 1958 having regard to s. 22(1) of the Indian Limitation Act, 1908. Section 22 (I) reads:\n\n\"Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall. as regards him, be deemed to have been instituted when he was so made a party.\"\n\nAdmittedly, the name of the original plaintiff is not a misclescription of the names of Tarabai's daughters. This is also not a case where a wrong defendant has been sued as representing the estate of a deceased person and subsequently the real representative is added as a defendant.\n\nNor is this a case where a wrong plaintiff has sued in a representative capacity and the person whom he intended to represent was subsequently added as a plaintiff.\n\nThis is a case where the original plaintiff sued in his own right and on his own behalf. No doubt, Vijay Kumar claimed the right to enforce the mortgage as the legal representative of Tarabai.\n\nBut he made this claim on his own behalf and not as representing the daughters of Tarabai. Mahabalk11mari must be regarded as a new plaintiff and Rajkumari and Premkumari must be regarded as new defendents and by reason of s. 22( I) the suit must as regards them be deemed to have been instituted when they were made parties.\n\nIn Moyappa Chetty v. Supramanian Cherry('), the Privy Council had occasion to consider the similar provisions of s. 22 of the Straits Settlements Ordinance No. 6 of 1896, which read:\n\n\"When. after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall as\n\n11) L.H\n\n~4- T.A. 181\\. (~\\ \\l!Hfi) L.R . . i3 IA. 113.121.\n\n196 [1966) St; PP. 9.<'.\"·\n\nregards him be deemed to have been instituted when he was so made a party ... \"\n\nConstruing this section. Lord Parker of Waddington observed:\n\n\"Their Lordships are of opinion that s. 22 contemplates cases in which a suit is defective by reason of the person or one of the persons in whom the right of suit is vested not being before the Court.\n\nSection 133 of the Civil Procedure Code provides against the defence of a suit on this ground and enables the proper party to be added or substituted. If A is the right person to sue, it would be clearly wrong to allow him, for the sake of avoiding the Limitation Ordinance. to take advantage of a suit improperly instituted by B.\"\n\nSimilarly, in this case the daughters of Tarabai cannot, for the purpose of avoiding the Limit<.tion Act, take advantage of the suit improperly instituted by Vijay Kumar.\n\nIn Subodi11i Devi v. Cwnur Ga11oda Kalli Roy Bahadur('), the Calcutta High Court held that there was a difference between substituting a new person as plaintiff under s. 27 of the Code of Civil Procedure. 1882 and the addition of a new person as defendant under s. 32 of the Code and that the change of parties as plaintiffs did not affect the question of limitation. This decision was followed by Parsons. J. in Rav; i v. Malwded'). But the learned Judges deciding those cases did ll<lt refer to s. 22 of the Indian Limitation Act. 1877 and they a:ipear to have completely overlooked that section. Section 22 mat es no distinction between sub-r. ()) and sub-r. (2) of 0. I. r. 10. The section in express terms applies whenever a new plaintiff or a new defendant is substituted after the fastitution of a suit.\n\nThe Court has power to add a new plaintiff at any stage of the suit, and in the absence of a statutory provision like s. 22 the suit would be regarded as having been commenced by the new plaintiff at the time when it was first instituted.\n\nBut the policy of s. 22 is to prevent this result, and tb effect of the section is that\n\nthe suit must be regarded as having been instituted by the new plaintiff when he is made a party. see Ramsebuk v. Ramlall Koondoo('l. The rigour of this law has been mitigated by the proviso to s. 21<1) of the Indian Limitation Act, 1963. which en- 0 ables the Court on being satisfied that the omission to include a new plaintiff or a new defendant was due to a mistake made in good faith, to direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.\n\nUnfortunately, the proviso to s. 21<1) of the Indian Limitation Act, 1963 has no application to this case, and we have no H ---- -- ----- -·----~ ( 1\\ (l~R7) l.L.R. 14 Cnl. 400.\n\n(1 ) 1IRQ7) I.L.R. (') (HISI) LL.H. fi CnL RJ; i, 823---824.\n\nRAM PRASAD r. \\'JJAY Kt;;!AR (Bachawal, J.) 197\n\n; uwer to direct that the suit should be deemed to have instituted , m a date earlier than November 4, 1958.\n\nIt follows that as regards Mahabalkumari, Rajkumari and Premkumari the suit must be regarded as instituted on November 4, J 958. As far as they are concerned, the suit is barred by limi- R talion and no decree can be passed in their favour.\n\nThe decree passed by the High Court in their favour cannot be sustained and must be set aside.\n\nWe think that the High Court had power to join Mahabalkumari as a party plaintiff under 0. I, r. 10 of the Code of Civil Procedure and to join Rajkumari and Premkumari as defendants under 0. I, r. 10(2) and to allow consequential amendments of the plaint under 0. 6, r. 17. But having regard to the bar of limitation, the added parties are not entitled to obtain any relief.\n\nSo far as Vijay Kumar is concerned, the suit as brought by him was dismissed by the High Court. There is no appeal by him.\n\nOn his behalf, it was not contended that we should exercise in his favour our powers under 0. 41, r. 33' of the Code of Civil Procedure, or that we should set aside the decree of dismissal of the suit against him and remand the case to the High Court for decision of the question whether he is the adopted son and heir of Tarabai. Even if such prayer were made, on the facts of this case we would not be inclined to exercise our powers under 0. 41, r. 33 and to set aside the decree of the High Court as to the dismissal of the suit against him.\n\nIn the result, the appeal is allowed, the decree passed by the High Court in favour of respondents Nos. 2, 3 and 4, Mahabalkumari, Rajkumari and Premkumari, is set aside and the decree of the trial Court dismissing the suit is restored. The suit is dismissed.\n\nWe direct that the parties will pay and bear their own costs in this Court and in the Courts below .\n\nAppeal allowed.", "total_entities": 73, "entities": [{"text": "RAM PRASAD DAGDURAM", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "RAM PRASAD DAGDURAM", "offset_not_found": false}}, {"text": "VUAY KUMAR MOTILAL MIRAKHANWALA & OfIS", "label": "RESPONDENT", "start_char": 21, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "VIJAY KUMAR MOTILAL MIRAKHANWALA & ORS", "offset_not_found": false}}, {"text": "A. K. SARKAR", "label": "JUDGE", "start_char": 78, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "R. S. BACHAWAT, JJ", "label": "JUDGE", "start_char": 118, "end_char": 136, "source": "metadata", "metadata": {"canonical_name": "R.S. 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"metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 1796, "end_char": 1810, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 22", "label": "PROVISION", "start_char": 2125, "end_char": 2130, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 2138, "end_char": 2152, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 22(1)", "label": "PROVISION", "start_char": 2621, "end_char": 2629, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 2637, "end_char": 2664, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 2815, "end_char": 2829, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 2860, "end_char": 2874, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 22", "label": "PROVISION", "start_char": 3438, "end_char": 3448, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act, 1908", "statute": "the Indian Limitation Act, 1908"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 3456, "end_char": 3470, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 132", "label": "PROVISION", "start_char": 3864, "end_char": 3872, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 3880, "end_char": 3894, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, 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"metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 22", "label": "PROVISION", "start_char": 11022, "end_char": 11027, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22", "label": "PROVISION", "start_char": 11348, "end_char": 11353, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 41", "label": "PROVISION", "start_char": 17877, "end_char": 17883, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 19321, "end_char": 19335, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "art. 133", "label": "PROVISION", "start_char": 19354, "end_char": 19362, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 19380, "end_char": 19394, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 19633, "end_char": 19647, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 19767, "end_char": 19781, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 6", "label": "PROVISION", "start_char": 19978, "end_char": 19982, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 113", "label": "PROVISION", "start_char": 20023, "end_char": 20031, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 20049, "end_char": 20063, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "art. 133", "label": "PROVISION", "start_char": 20262, "end_char": 20270, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 20288, "end_char": 20302, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 6", "label": "PROVISION", "start_char": 20360, "end_char": 20364, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 132", "label": "PROVISION", "start_char": 20415, "end_char": 20423, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 20438, "end_char": 20452, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 30", "label": "PROVISION", "start_char": 20598, "end_char": 20608, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 20623, "end_char": 20637, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "art. 14", "label": "PROVISION", "start_char": 20998, "end_char": 21005, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": 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Transfer of Property Act"}}, {"text": "s. 22(1)", "label": "PROVISION", "start_char": 22028, "end_char": 22036, "source": "regex", "metadata": {"linked_statute_text": "English mortgage as defined in the Transfer of Property Act", "statute": "English mortgage as defined in the Transfer of Property Act"}}, {"text": "Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 22044, "end_char": 22071, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 22", "label": "PROVISION", "start_char": 22073, "end_char": 22083, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act, 1908", "statute": "the Indian Limitation Act, 1908"}}, {"text": "s. 22( I)", "label": "PROVISION", "start_char": 23157, "end_char": 23166, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22", "label": "PROVISION", "start_char": 23374, "end_char": 23379, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 22", "label": "PROVISION", 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{"document_id": "1966_1_198_208_EN", "year": 1966, "text": "MADRAS V. RADIO & ELEOT!\\ICALS LTD. (Shah, J,) 199\n\nIt is contemplated in sec. 7 and the Rules that the certificate of registration may only be issued after an objective satisfaction by the notified authority that the spec1fi0d goods are l!kely to be needed ior the purpose of business of the registered dealer, and that satsfaction is open to challenge in an appropnate proceedmg before the High Court and even before this Court. Correctness or propriety of satisfaction of the notified authority in issuing the certificate in Form 'B' that the goods are likely to be required for the purpose of the business would not however be again open to challenge before another taxing authority in proceedings for assessment of tax.\n\n[206 G-207 BJ.\n\nIndian Copper Corporation Ltd, v. Commissioner of Commercial Taxes, Bihar & Others 16 S.T.C. 25~ and J.K. Cottoro Spinning & Weaving Co. Ltd. v. The Sales Tax Officer, Kanpur & Another 16 S.T.C. 563, referred 1to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 334, 335 and 338 of 1965.\n\nAppeals by Special Leave from the judgment and orders dated January I, 1963, November 7, 1962 and November 4, 1963 of the Madras High Court in Tax Case No. 170 of 1961 Civil Revision Petition No. 105 of 1961 and Tax Case No. 153 of 1963 res- D pectively.\n\nBishan Narain and A. V. Rang am, for the appellants (in C.As. Nos. 334 and 335 of 1965).\n\nA. V. Rangam, for the appellant (in C.A. No. 338/1965).\n\nK. R. Chaudhuri, for the respondent (in C. A. No 334/1965).\n\nN. D. Karkhanis, O.C. Mathur, J.B. Dadachanji and Ravinder Narain. for the respondents (in C.As. Nos. 335 and 338/1965).\n\nThe Judgment of the Court was delivered by Shah. J. This is a group of appeals filed by the State of Madras against orders passed by the High Court of Judicature at Madras which raises the following common question as to appli cability of concessional rate of sales tax to transactions of inter- State sale and taxable under the Central Sales Tax Act, 1956:\n\n\"When a purchasing dealer in one State furnishes in Form 'C' prescribed under the Central Sales Tax (Registration & Turnover) Rules, 1957, to the selling dealer in another\n\nState a declaration, certifying that the goods ordered, purchased or supplied are covered by the certificate Clf registration obtained by the purchasing dealer in Form 'B' prescribed under r. 5(1) of the Central Sales Tax (Registration & Turnover) Rules, 1957, and that the goods are intended for resale, or for use in manufacture of goods for sale, or for nse in the execution of contracts, or for packing of goods for resale, and that declaration is produced by the selling dealer, is it open to the Sales Tax authority under the Central Sales Tax Act to deny to the selling dealer the benefit of concessional rates under s. 8(1) of the Central Sales Tax Act, 19S6.\n\nJ, IS5SCI-15\n\nSUPREME OOURT REPORTS\n\n(1966] SL'PP. B.O.R,\n\non the view that the certificate in Form 'C' mentions more purposes than one for which the goods arc intended to be used, or that the goods are incapable of being used for the purpose for whic~ they are declared to be purchased, or that the goods are applied for some other purpose not mentioned in the certificate in Form 'C'?'' We may briefly set out the facts which give rise to two out of the appeals: Civil Appeals Nos. 334 & 335 of 1965.\n\nCivil Appeal No. 334 of 1965. MI s Radio & Electricals Ltd., respondents in this appeal-<:arry on business in the State of Madras in electrical equipment and are registered as dealers under the Central Sales Tax Act. The Bombay State Electricity Board, Saurashtra Division, which is engaged in the production of electric energy purchased transformers and other goods of the total value of Rs. 1,42,020/- from Mis. Radio & Electricals Ltd. and the latter claimed in proceeding for assessment for Central sales-tax for the year 1957-58 that they were liable to pay tax at the rate of I per cent on the turnover under s. 8(1) of the Central Sales Tax Act.\n\nThe Deputy Commercial Tax Officer rejected the claim on the ground that the Bombay State Electricity Board was not a dealer engaged in selling goods and merely because they held a registration certificate, the goods sold to the Board could not be admitted to the concessional rate of tax under s. 8(1) of the Act. The Appellate Assistant Commissioner of Commercial Taxes confirmed the order on the ground that transformers and other goods purchased by the Electricity Board for use in the production of electrical energy were not intended to be used in the manufacture of goods for sale within the meaning of s. 8(3) (b) of the Central Sales Tax Act, because electricity was not at the material time \"goods\" within the meaning of the Act. The order passed by the Appellate A<iSistant Commissioner was confirmed by the Sales Tax Appellate Tribunal, Madras. The High Court, follawing an earlier judgment in Deputy Commissioner of Commercial Taxes, Madras Division, v.\n\nManohar Brothers(') modified the order holding that if the selling dealer within the State produces a certificate in Form 'C' setting out one or more of the purposes in s. 8(3)(b) of the Act, and if the Sales Tax authorities on behalf of the State do not deny that th.; purchasing dealer is a registered dealer, the selling dealer will not be denied the concessional rate of tax under the Act, even if it transpires that the purchasing dealer has utilised the goods for purposes other than those mentioned in the certificate of registration. The High Court then held that out of the certificates in Form 'C' produced by the selling dealer, certificates in respect of a turnover of Rs. 42,080 /. set out the purpose as \"manufacture of electrical energy\" and since this was not one 0f the purposes mentioned in s. 8(3)(b) of the Act as it stood at the relevant time, the Sales Tax authority was right in denying the benefit of the rate under s. 8(1) to the assessee. but with regard to a turnover of - ·-- Ill 13 8.T.O. 686.\n\nMADRAS v. RADIO & ELECTRICALS LTD. (Shah, J.) 201\n\nRs. 47,340 / - the Sales Tax authority was bound to accept the\n\ncertificates in Form 'C' produced by the assessee even though the. certificates contained all the purposes mentioned in the prescribed form, and no purpose was struck out.\n\nThe facts which give rise to Civil Appeal No. 335 are these; Mis Stanes Motors (South India) Ltd.-respondents in this appeal -are dealers in automobiles, tractors and spare parts. For the year 1957-58 they claimed benefit of concessional rates under s. 8(1) on a turnover of Rs. 1,38.572/12/- resulting from sale of tractors supplied to certain \"tea factories\" in the State of Kerala. The purchasing dealers who were four \"tea factories\" registered as dealers under the Act delivered to the respondents certificates in Form 'C' declaring that the tractors purchased by them were in tended for use in the manufacture of tea for sale. In the view of the Tax Officer benefit of the concessional rate could not be claimed in respect of those sales, since the tractors were not for resale and the tractors \"were not directly relatable to the manufacturing process\". In appeal, the order passed by the Tax Officer was confirmed by the Appellate Assistant Commissioner. He held that the tractors which were used for transporting tea leaves from the plantations to the factories cannot be said to be used in the manufacture of goods for sale. In appeal to the Sales Tax Appellate Tribunal, it was held that the respondents were entitled to the concessional rate in respect of sales to two out of the four factories, which held certificates of registration in Form 'B' specifying \"machinery\" as one of the items under s. 8(3)(b). The High Lourt of Madras confirmed the order passed by the Tribunal in exercise of its revisional jurisdiction.\n\nCounsel for the State of Madras contends that the Commercial Tax Officer is invested with authority under the Act to scrutinise the transactions in respect of which the claim to concessional rate of tax is made, and he is competent to ascertain not only whether the certificate in Form 'C' is genuine, but whether the certificate is valid in law, whether the purchasing dea'er holds a valid certificate of registration in Form 'B', whether the goods specified in the purchasing dealer's certificate can be used for the purpose mentioned in the certificate in Form 'C', and whether the goods were applied for the purpose for which they were purchased. Counsel also submitted that a certificate in Form 'C' which specifies more purposes than one for which the goods are intended to be used by the purchasing dealer is invalid.\n\nWe may in the first instance set out the relevant provisions of the Act and the Rules. The Central Sales Tax Act 7 4 of 1956 was enacted by the Parliament to formulate principles for determining when a sale or purchase of gocds takes place in the course of inter- H State trade or commerce or outside a State or in the course of import into or export from India. By Ch. II principles for determining when a sale or purchase of goods takes place in the course of L/85SCI-15(al\n\n20;!\n\nSUPRJ<:~IE COL'RT REPORTS fl966] Sl'PP. s.c.R.\n\ninter-State trade or commerce or outside a State or in the course of impon or export are enacted. Chapter III deals with inter-Stllte sales tax. By s. 6 liability is imposed upon every dealer to pay tax under the Act on all s.1les effected by him in the course of inter- State trade or commerce during any year. Section 7 provides for registration of dealers. Section 8. as originally enacted, provided:\n\n\"(!) Every dealer who. in the course of inter-State trade or commerce sells to a registered dealer goods of the descrip\n\ntion referred to in sub-section (3) shall be liable to pay tax under this Act, which shall be one per cent of his turnover:\n\nProvided that, if under, the sales tax law of the appropriate State, the sale or purchase of any goods by a dealer is exempt from tax generally and not in specified cases or in specified circumsttnces or is subject to tax (by whatever name called) at a rate or rates which is or are lower than the rate specified in sub-section (I), the tax payable under this Act on the turnover in relation to the sale of such goods in the course of inter-State trade or commerce shall be nil or shall be calculated at the lower rate. as the case may be.\n\n(2)\n\n(3) The goods referred to in sub-section W- -\n\n(a) in the case of declared goods. are goods of the class or classes specified in the certificate of registration of the registere<I dealer purchasing the goods as berng intended for resale by him; and\n\n(b) in any other case, are good> of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resle by him or for use by him in the manufacture of goods for sale or for\n\nuse by him in the execution of any contract; and in either case include the containers or other materials used for the F packing of goods of the class or classes of goods so specified.\n\nExplanation-\n\n(4) The provisions of sub-section (I) shall not apply to any sale in the course of inter-State trade or commerce unlCS6 the dealer selling the goods t:urnishes to the prescribed authority in the prescribed manner a declaration duly filled and G signed by the registered dealer to whom the goods are sold, containing the prescribed particulars on a prescribed form obtained from the prescribed authority.\n\n(5)\n\n(With effect from October I, 1958, by Act 31 of 1958, s. 8 was ex- R tensively amended, but we are. in these appeals. not concerned v.ith the statute as amendedl.\n\nMADRAS 'V. RADIO & ELECTRICALo LTD, (8hah, J.) 203\n\nA Section 10 provides for penalties, The section at the material time provided:-\n\n\" If any person-\n\n(a) fails to get himself registered as required by section 7; or\n\n(bl being a registered dealer. falsely represents when purchasing any class of goods that goods of such class are covered by his certificate of registration; or\n\n(c) not being a registered dealer, falsely represents when purchasing goods in the course of inter-State trade or commerce that he is a registered dealer; or\n\n(d) after purchasing any goods for any of the purposes specified in clause (b) of su!J..section (3) of section 8 fails, without reasonable excuse. to make use of the goods for any such purpose;\n\n(e) has in his possession any form prescribed for the purpose of sub-section (4) of section 8 which has not been obtained by him or by his principal or by his agent in accordance with the provisions of this Act or any rules made thereunder; he shall be punishable with simple imprisonment.\n\nSection 14 deals with declared goods in respect of which by s. 8(1) read with s, 8(3)(a) the concessional rate of tax applies when the . goods are purchased as being intended for resale. Reading s. 8(1) with s, 8(3)(b), it is clear that the Legislature intended to grant the benefit of concessional rates of tax under the Act to registered dealers, provided that the goods sold were of the class or classes specified in the certificate of registration of the purchasing dealer and the goods were intended to be used for re-sale by him or for use in the manufacture of goods for sale, or for use in the execution of contracts, or for packing of goods for resale,\n\nIn exercise of the power under s. 13 the Central Government made rules called \"The Central Sales Tax (Registration & Turnover) Rules, 1957\". Rules 3 to 8 provide for registration and issue of certificate of registration. Rule 5(1) provides that when the notified authority is satisfied, after making such enquiry as it thinks necessary, that the particulars contained in the application are correct and complete, it shall register the dealer and grant him a certificate of registration in Form 'B' and also a copy of such certificate for every place of business within the State other than the principal place of business mentioned therein, The material part of Form 'B' is as follows : This is to certify that . , ,. , ... ,. . ,. . ,. ,. . ,. . ,. , ,. .. ,. ..... whose principal place of busins .within the State of . ,. ,. . ,. ,. ,. ,. , ,, ..... .. ,. ,. .... ,. ................ ,, .. ts situated at ..... ,. \",.,,.,. .,. .. ,. ......... .\n\nBUPREMB COURT REPORTS\n\n(1966) BUPP. s.o.R.\n\nhas been registered as a dealer under section 7(1) /7(2) of the Central Sales Tax Act, 1956.\n\nThe business is: wholly mainly partly partly partly\n\nThe class(es) of goods specified for the purpose of subsection (!) of section 8 of the said Act is I are as follows and the sales of these goods in the course of inter-State trade to the dealer shall be taxable at the rate specified in that subsection subject to the provisions of sub-section (4) of the said section:-\n\n(a) For resale, (b) For use in manufacture,\n\n(c) For use in the execution of contracts.\n\nThe dealer's year for the purpose of accounts runs from ........................ day of ........................ to the ........... . day of .............................. \".\n\nRules 9 & 10 deal with cancellation of registration, and Rules 11 & 12 deal with determination of turnover. By r. 12 the declaration referred to in sub-s. (3) of s. 8 of the Act has to be in Form 'C' consisting of three sections-a counterfoil, a duplicate and the original. -The duplicate section of the Form (which in terms is identical with the original section) is as follows:\n\n\"Form 'C'-Form of Declaration (See rule 12). (to be used at the time of making purchases from out of State\n\nsellers).\n\nName of issuing State .. . .. .. .. .. . . .. . . . . . . . . . .. .. . . . . . .. .. .. . . . .. . . . .\n\nF Issued to holder of Registration Certificate No ............ _ ..... .\n\nSerial No. . ............................... .\n\nTo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Seller) ...............\n\nCertified that the goods ••ordered for in our purchase order No .......... dt .. _ ......... _ •Purchased from you as per bill/cash memo stated below.\n\nSupplied under your cha Ian No. _ .... _ ......... dated _ .......... . are for .. resale\n\n••use in manufacture of goods for sale/use in the execution of contracts/packing of goods for resale.\n\n~' I; >- fr\n\nt I!\n\nMADRAS v. RADIO & ELECTRICALS LTD. (Shah, J.) 205\n\nA and are covered by my J our registration certificate No ......... . dated ............... issued under the Central Sales Tax Act, 19!56.\n\n(Name of the purchasing dealer in full).\n\n··/··························· (Signature and status of the person signing the declaration). *Particulars of Bill I Cash Memo . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated ..................... iNo. . . . . . . . . . . . .. . . . . . . . . . . . Amount ........... . **Strike out whichever is not applicable. (Note-To be retained by the selling dealer)\".\n\nThe Scheme of the Rules read with the Act is that the purchasing dealer as well as the selling dealer must register themselves under the Central Sales Tax Act. If declared goods are specified in the certificate of registration of the purchasing dealer and if it be certified that the goods are intended for resale by him, the sale is subject to concessional rate of tax under s. 8(1). In respect of sales of other classes of goods specified in the certificate of registration of the purchasing dealer, if the goods are purchased either for resale by him, or for use in manufacture of goods for sale, or for use in the execution of contracts, the concessional rate of tax is available, provided the selling dealer obtains from the purchasing dealer the declaration in the prescribed form duly filled in and signed by the latter containing the particulars that the goods are ordered, purchased or supplied under a certain specific order, bill or cash memo or chalan, for all or any of the purposes mentioned and that the goods are covered by the registration certificate of the purchaser described therein and issued under the Act. If the certificate is defective in that it does not set out all the details, or that it contains false particulars about the order, bill, cash memo or chalan, or about the number and date of the registration certificate and specifications of goods covered by the certificate of the purchasing dealer, the transaction will not be admitted to concessional rates.\n\nNow in certain certificates in Form 'C' furnished by the purchasing dealer in this group of appeals all the alternatives in the printed form were retained, and in others one or more but not all the alternatives were retained. Counsel for the State of Madras urged that a certificate in Form 'C' is defective unless it specifie~ only one purpose for which the goods purchased a.re intended to be used. But that contention is not borne out by tb.e Act and the Rules. Goods may be sold to a purchasing dealer under a. single order, bill, cash memo or chalan, one part to be usea for resale, another to be used in the execution of contracts, and the rest in manufacture of goods for sale, but it is not enacted that separate certificates should be issued each relating to the quantity intended to be used for a specified purpose. A purchasing dealer may again be carrying on business as a, manufacturer, as a building, installation or repair contractor, and as a dealer in goods, and if he purchases goods specified in his certificate, but without making up hi5\n\nSUPRBM~ COURT REPORTS [ 1966] St:PP. S.C, R.\n\nmin~ about .the precise purpose for which the goods will be used, provided 1t ts one .of the purposes, he will still be complying with the statutory requirements 1f he declared in Form 'C' that the goods arc purchased for more than one purpose. The Act and the Rules do not impose an obligation upon the purchasing dealer to declare that goods purchased by him are intended to be used for one purpose only. even though under his certificate of registration he is entitled to purchase goods of the classes mentioned ins. 8(3)(bl for more purposes than one. When the purchasing dealer furnishes a certificate in Form 'C' without striking out any of the four alter natives, it is a representation that the goods purchased are intended to be used for all or any of the purposes, and the certificate complies with the requirements of the Act and the Rules. The Sales Tax authority is, of course, competent to scrutinise the certificate to find out whether the certificate is genuine. He may also, in appropriate cases, when he has reasonable grounds to believe that the goods purchased arc not covered by the registration certificate of the purchasing dealer. make an enquiry about the contents of the certificate of registration of the purchasing dealer. But it is not for the Tax Officer to bold an enquiry whether the goods specified in the certificate of registration of the purchaser can be used by him for any of the purposes mentioned by him in Form 'C', or that the goods purchased have in fact not been used for the purpose declared in the certificate.\n\nThe authority issuing the certificate under r. 5(1). as expressly stated in the rule, has, before issuing a registration certificate, to be satisfied after making such enquiry as it thinks necessary that the particulars contained in the application are correct and com plete. The enquiry would obviously be made in the light of the nature of the business and goods which are likely to be needed either for re-sale, or for use in the manufacture of goods for sale, or for use in the execution of contracts. Satisfaction which is con templated by r. 5 is objective, and may be arrived at upon a quasi. judicial enquiry. This Court has in several cases had occasion to consider the legality of orders of the notified authority refusing to grant certificates of registration in Form 'B' in respect of cer tain classes of goods which it was claimed by the tax-payer were nccessarv for the purpose of his business and were thcrefoce re quested to be specified in the certiftcate of registration: e.g. Indian Copper Corporation Ltd. v. Commissioner of Commercial Taxe.1.\n\nBihar & Others(') and J. K. Cotton Spinning & Weaving Co. Ltd ..\n\nv. The Sales Tax Officer. Kanpur & Another('). On the plain words used in s. 7 and the Rules, it is contemplated that the certificate of registration mav only be issued after an objective satisfaction by the notified authority that the specified goods are likelv to be needed for the purpose of the business of the registered dealer, and that satisfaction is open to challenge in an appropriate proceeding before the High Court and even before this Court. Correctness or\n\n(11 R.T.C. 259. ('I [19661 ll. 8 0.R. <lOO; IO S.T.C. r.n1.\n\nB , . -\n\nF •\n\nMADRAS V. RAO!O & ~LBCTRIUAL' LTJJ. (8/ia/i, J.) 2lli\n\npropriety of satisfaction of the notified authority in issuing the certificate in Form 'B' that the goods are likely to be required for the purpose of the business would not however be again open to challenge before another taxing authority in proceedings for assessment of tax. If therefore gocds are specified in the certificate of registration in Form 'B'. it is not open, when a claim is made in respect of the purchases of those goods for the application of concessional rate of tax, to the Sales Tax Officer to deny to the selling dealer of those goods the benefit on the ground that the goods specified cannot be used by the purchasing dealer for the purpose of his business. It is open to the Tax Officer to ascertain whether the goods in respect of which a claim for concessional rate is made are specified in the certificate of registration. but if the class of goods is included in the certificate of registration in Form 'B' he cannot say that the class of goods should not hwe been specified.\n\nThe ,\\ct seeks to impose tax on transactions, amcngst others, of sale and purchase in inter-State trade and commerce. Though the tax under the Act is levied primarily from the seller, the burden is ultimately passed on the consumers of goods because it enters into the price paid by them. Parliament with a view to reduce the burden on the consumer arising out of multiple taxation has, in respect of sales of declared goods which have special importance in inter-State trade or commerce, and other c'asses of goods which are purchased at an intermediate stage in the stream of trade or commerce, prescribed low rates of taxation, when transactions take place in the course of inter-State trade or commerce.\n\nIndisputably the seller can have in these transactions no control over the purchaser. He has to rely upon the representations made to him. He must satisfy himself that the purchaser is a registered dealer, and the goods purchased are specified in his certificates: but his duty extends no further. If he is satisfied on these two matters. on a representation made to him in the manner prescribed by the Rule; and the representation is recorded in the certificate in Form 'C' the selling dealer is under no further obligation to see to the application of the gooc!s for the purpose for which it was represented that the goods were intended to be used. If the purchasing dealer misauplies the gods he incurs a penalty under s. 10. That penalty is incurred by the pu\"chasing dealer and cannot be visited upon the selling dealer. The selling dealer is under the Act authorised to collect from the purchasing dealer the amount payable by him as tax on the transaction, and he can collect that amount only in the light of the declaration mentioned in the certificate in Form 'C'.\n\nHe cannot hold an enquiry whether the notified authority who issued the certificate of registration acted p:operly, or ascertain whether the purchaser, notwithstanding the declaration, was likely to use the gcods fer a purpose other than the purpose mentioned in the certificate in Form 'C'. There is nothing in the Act or the Rules\n\n208 8Ul'REME OOURl' REPORTS [1966) SUPP. s.c.R.\n\nthat or infracion of the law committed by the purchasing dealer A by rn1Sapphctmn of the oods aftr he purchased them. or for any fraudulent m1srepresentatmn by htm. penalty may be visited upon the selling dealer.\n\nCounsel for th.e appe.llant contended that the view expressed by the Htgh Coort tn the Judgments under appeal was in any case erroneous, because they held that a 'C' Form certificate produced by the selling dealer is conclusive of the right to the concessional rate of tax, and that no enquiry whatever may be made by the assessing authority. He invited our attention to the following passage from the judgment which is under appeal in Civil Appeal No. 335 of 1965:\n\n\"We are of the opinion that whether or not the goods were in fact used for the stated purposes or even usable for such a purpose, so long as the purchasing dealer has furnished the required declaration to the selling dealer, the selling dealer becomes under law entitled to the benefit of section 8(1) of the Act. It is no function of the selling dealer to enter into a judicial examination of whether the goods arc in fact used or usable for the manufacture or processing of goods for sale by the purchasing dealer. The purchasing dealer declares that they are required for such a purpose and are further so specified in his form of registration granted by the sales tax authorities. It is not the function of the selling dealer to enquire whether the requirement of the purchasing dealer L~ bona fide or even is or is not within the certificate of registration of that dealer.\" It is implicit in the context in which these observations occur that if the purchasing dealer holds a valid certificate specifying the goods which arc to be purchased, and furnishes the required declaration to the selling dealer, the selling dealer becomes on production of the certificate entitled to the benefit of s. 8(1). It is of course open to the sales tax authority to satisfy himself that the goods which are purchased by the purchasing dealer under certificate in Form 'C' arc specified in the purchasing dealer's certificate in Form 'B'. Observation of the High Court that the selling dealer may not enquire whether the requirement is not within the certificate of registration of the purchasing dealer is not accurate. But whether the goods specified in the registration certificate in Fom 'B' can be used for the purpose is not for the selling dealer to determine. That is a matter which has already been determined by the notified authority issuing the certificate of registration.\n\nAppeal No. 334 therefore fails and is dismissed with costs. In Appeals Nos. 335 & 338 the respondent is the same asscssec, and common questions for different periods are raised. These appeals also fail and arc dismissed with costs. One hearing fee.\n\nAppeals dismissed.", "total_entities": 42, "entities": [{"text": "ELEOT!\\ICALS LTD. (Shah, J", "label": "JUDGE", "start_char": 18, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "J.C. 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{"document_id": "1966_1_1_14_EN", "year": 1966, "text": "GORDON WOODROFFE & CO.\n\nSHEIKH M. A. MAJID & CO.\n\nMarch 22, 1966\n\n[K. SuBBA RAO, V. RAMASWAMI AND J. M. SHELAT, JJ.J\n\nContract-Difference between sale and agency to se!!-Accaunt stated, what is-When can be re-opened.\n\nThe respondent was a trader in hides and skins and the appellant was an exporter. During the periad January to August 1949, there were several contracts betweelli them. The contracts mentioned that the appellant was buying the goods for resale in U.K. The price quoted was C.I.F. less 2! %. The contracts also provided that time should be the essence of the contract, that the sales tax was on respondent's account, that the respondent was answerable for weight as well as quality, that there should be a lien on the goods for moneys advanced by the appellant, and that any djspute regarding quality should be settled by arbitration according to the custom of the trade in the U .K.\n\nThe course of dealing between them showed that before the goods were shipped they were subjected to a process of trimming and reassortment in the godowns of the appellant with a view to make them conform to London standards, that the goods were marked with the respondent's mark and that premiums were paid to the respondent in case the goods supplied were of special quaLity. The respondent filed a suit on the original side of the High Cou!'t praying that an account should be taken of the dealings between himself and the appellant on the ground that the appellant was his agent. The appellant's case was that there was an outright purchase of the respondent's goods and that the appellant was not an agent of the respondent. The trial Judge dismissed the suit. On appeal, the High Court held that the appellant acted as a de! credere agent of the reSpOndent and directed the taking of accounts.\n\nIn appeal to this Court, it was contended by the appellant that:\n\n(i) the terms of the contracts and the course' of dealing between the parties showed that the appellant was not the agent of the respondent but was an outright purchaser of the goods. and (ii) that there was a settled account between the parties which the respondent could not reopen.\n\nHELD: (i) The appellant was the purchaser of the respondent's goods under the several contracts and not his agent for sale, and therefore, the view taken by the High Court was not correct.\n\nThe essence of sale is the transfer of title to the goods for pi'ice paid, or to be paid, whereas the essence of the agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principal who continues to be the\n\nowner of the goods, and the agent is liable to account for the proceeds.\n\nOn the terms of the contract and the course of dealing between the parties, the contract was not one of agency for sale hut was an agreement of sale. The appellant purchased the goods from the respondent 2i% less and sold them to the London purchasers at the full pic~ so that the 2!% was its, margin of profit and not its agency comm1SS10n. The fact that the goods were sent with the respondent'&\n\nSUPREME COURT REPORTS\n\n[1966] SUPP. S, C, R.\n\nmark, that the premium was paid outside the terms of the contract, A that the appellant considered it fair and just to pay the whole of the premium to the respondent or to share it with him, and that additional burden with respect to weight and quality was thrown on the respondent, have no significance, in deciding the nature of the contract. The clause with regard to lien is consistent with the transaction being an outright sale, because the appellant was acting as creditor of the respondmt and charged interest on advances only till B the date of shipment of the goods when it became the purchaser of the goods from the respondent. An agent can become a purchaser when the agent pays the price to the principal on his own responsibility. The clause regarding arbitration in the U.K., though unusual, is not also inconsistent with there being a sale of goods between the parties in India. [3H-4B; 5G-H.]\n\n(ii) The accounts were settled between the parties and the respondent could not be allowed to r>eopen the settled account as there was no proof of fraud, mistake or any other sufficient ground.\n\nAccounts are \"settled or started\" if they are submitted and accepted as correct by the other side to whom they have been rendered.\n\nFor almost every shipment the appellant prepared a full and detailed statement of account and sent it to the respondent. The account contained items both of credit and debit and the figures on both sides were adjusted between the parties and a balance struck and the respondent accepted their accuracy and never raised any objection_ to them. [llH; 14 E-F].\n\nBishnu Chand v. Girdhari La!, (1934) L. R. 61 LA. 273 and Laycock v. Pickles, 4 B and S 497, applied.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 164 of 1964.\n\nAppeal from the judgment and decree dated December 15, 1959 of the Madras High Court in 0.S. Appeal No. 22 of 1955.\n\nP. Ram Reddy and A. V. Velayudhan Nair, for the appellant.\n\nK. R. Chaudhuri, and K. Rajendra Choudhury, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. This appeal is brought against the judgment of the High Court of Madras dated December 15, 1959 in O.S.\n\nAppeal No. 22 of 1955.\n\nThe respondent was a trader at Madras in hides and skins.\n\nJ:he appellant was a firm, Gordon Woodroffe and Company (Madras), Limited, doing business among other things as exporters G of hides and skins. For the period of 8 months commencing from January, 1949, there were as many as 101 contracts entered into between the appellant and the respondent. The case of the respondent was that he entered into an agreement with the appellant to act as agents for shipping the goods (hides and skins) to United Kingdom and for finding purchasers there. It is alleged that the H appellant used to make payment to the respondent in respect of the goods sent to it for shipment in the nature of advances and he\n\nWOODROFF>O & co. '' MAJID & co. (Rarn<tswami, J.)\n\nused to set off these advances when payment was made to the respondent after the goods were shipped. The respondent will hereinafter be referred to as the plaintiff and the appellant as the defendants.\n\nThe plaintiff tentatively claimed a sum of Rs. 56,564 /- and odd as due to him as balance of the price of the goods and a further sum of Rs. 40,275 /- as representing the loss sustained by him by reason of the defendants' conduct in not shipping his goods •under the \"Shaik mark\". The plaintiff accordingly prayed that an account should be taken of the dealings between the parties for the period in question. The defendants contested the suit on the ground that it was not an agent of the plaintiff but it purchased hides from the plaintiff for export and for resale in the United Kingdom.\n\nThe case of the defendants was that there was an outright purchase of the goods from the plaintiff for the purpose of resale in the United Kingdom.\n\nThe defendants also contended that a sum of Rs. 4,35 I /- and odd was due to it from the .Plaintiff and it prayed for a decree against the plaintiff for that amount by way of counter-claim. The trial Judge held, by his judgment dated May 6, 1954 that the defendants were only purchasers of the goods from the plaintiff and the idea of agency was quite inconsistent with the nature of the transactions between the parties. The trial Judge came to the conclusion that the plaintiff was bound by the statements of account rendered by the defendants from time to time.\n\nAfter giving an opportunity to the parties to produce further evidence, the trial Judge held that since there was no fraud the accounts could not be reopened and the claim of the plaintiff with regard to Rs. 157 /- in respect of the marine insurance alone was sustainable. The trial Judge accordingly dismissed the suit and decreed that counter-claim of the defendants after deducting the said sum of Rs. 157 /-. The plaintiff preferred an appeal to the High Court of Madras under the Letters Patent. By its judgment dated December 15, 1959 the High Court reversed the decision of the trial Judge and held that the defendants acted as del credere agents of the plaintiff for effecting the sale of the plaintiff's goods in the United Kingdom. On this basis the High Court decreed the plaintiff's suit and directed the taking of accounts, as prayed for, from the defendants, though in respect of some of the items the claim of the plaintiff was negatived.\n\nThe High Court also held that the plaintiff was liable to pay to the defendants the amount claimed by them by way of counter-claim.\n\nThe first question presented for determination in this case is whether the defendants were acting as del credere agents of the plaintiff or whether the defendants were outright purchasers of the goods supplied to them by the plaintiff. In tbe approach to this question it is necessary to notice the distinction between a contract of sale and a contract of agency. The essence of sale is the transfer of the title to the goods for price paid or to be paid. The transferee in such case becomes liable to the transferor of the goods\n\nSUPRgMJ<: COUHT REPORTS [1966] SUPP. s.c.R.\n\nas a debtor for the price to be paid and not as agent for the proceeds of the sale.\n\nOn the other hand, the essence of agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principal who contimoes to be the owner of the goods and who is therefore liable to account for the proceeds.\n\nThe true legal relationship between the parties in the present case has, therefore, to be inferred froqi the nature of the contract, its terms and conditions and the nature of respective obligations undertaken by the parties.\n\nIt is necessary, at this stage, to set out briefly the course of the dealings between the parties which has been summarised by the c High Court as follows :\n\n\"The plaintiff used to purchase tanned hides of all sorts in Periamet (Madras), and in his godown assort them according to quality, pack them into bales and mark them with his mark, viz., Shaik or S. M. A. Mark. Then the bales would be delivered into the defendants' godown where the bales would be opened and re-assorted so as to conform to London specification and standard. In the process of putting the goods into that shape, there used to be necessity for the defendants to cut and trim the pieces and sometimes call on the plaintiff for replacement of the pieces which fell below the standard. Thereafter, the defendants used to re-pack them into bales each weighing 600 pounds and then ship the goods themselves as shippers and obtain the necessary shipping documents on the basis of c.i.f. contracts. The goods would be shipped to the defendants' London Office where they were sold to London purchasers. All the expenses incurred in connection with the goods prior to shipment, such as carriage, trimming and assortment in the defendants' godown were all to be borne by the plaintiffs. So also expense in connection with the shipment, such as freight, insurance, short weight, etc., were all to be borne by the plaintiff.\n\nAfter the goods were shipped and as soon as the shipping documents were got ready, the price of the goods was calculated at the price fixed in the contract notes and after deducting the expenses and the advances with interest thereon, the balance, if any, was paid to the plaintiff either by cheque or by credit being given in his accounts.\n\nFor every shipment a contract note was being sent by the defendants to the plaintiff. So also, a statement of account with a covering letter as well as a cheque for the balance found due to the plaintiff were being sent to the plaintiff from time to time. In all, there were 101 contract forms and several statements of accounts sent to the plaintiff\n\n.,.\n\nWOODROFFE & co. v. MA.TID & 00. (Ra.maswam.i,\n\nJ.) 5\n\nA in respect of the shippers. To none of those contracts or statements of account did the plaintiff raise any objection at any time.\"\n\nThe question whether the defendants took delivery of the plaintiff's goods as agents for sale or whether they puchased the goods outright must largely depend upon the terms of the contract of which a sample is Ex. P-1.\n\nAll the 101 contracts were prepared in the same printed form.\n\nExhibit P-1 is the contract dated January 21, 1949. It is in the form of a letter sent by the defendants to the plaintiff. It opens with the sentence \"We confirm buying from you for resale the following subject to U .K. Import Licence\".\n\nThen follows a description of the goods giving the number of bales, the average weight and range, the assortment and the price per lb. in pennies. The price quoted is said to be c.i.f. less 2! per cent. The goods were already shipped by the s.s. 'City of Florence'.\n\nThe seller is said to be liable to pay brokerage at the rate of one pie per lb. Then follow the terms of the contract which are to the following effect:\n\n\"Landed weight to be accepted, payment on presentation of documents in order. It is understood that the above goods are for re-sale in United Kingdom. You are responsible irrespective of any inspection by us in Madras for selection and quality of the goods at destination where inspection and acceptance thereof will be made by our agents or the ultimate buyers. In the event of any dispute or claim in respect of goods covered by this contract, failing amicable settlement with buyers, such claim is to be submitted to arb'tration according to lhe custom of the trade in the United Kingdom and the result of such settlement or arbitration is binding on you. We have a charge or lien on all goods covered by this contract for all moneys advanced by us including expenses incurred and interest thereon. Insurance through Gordon Woodroffe Company, Madras, Limited. Time is an essence of the contract.\"\n\nIn the first place, it is important to notice that the contract in the opening portion specifically makes a mention of the fact that the defendants were buying the goods for resale, and in the paragraph containing the terms of the contract it is reiterated that the goods were intended for resale in the United Kingdom. On the face of it. therefore, the contract is clearly not one of agency for sale but it reads as an agreement of sale. If the defendants were intended to be constituted as the agents for sale the terms of the contract would have been entirely different.\n\nAnother important feature in this case is that there is a definite price fixed in the contract for the plaintiff's goods.\n\nAccording to the plaintiff the rates fixed in the contract were the ones at which the goods were sold to London\n\nSUPREME COURT REPORTS (1966)\n\nSUPP. S.C.R.\n\npurchaser and not a different rate and the defendants were agents who were obtaining for him only the price at which the goods were sold at London. It is true that the defendants admit that before fixing the price as between themselves and the plaintiff they used to ascertain the London price by cable. It is also true that the plaintiff was debited in the statement of account with the expenses of the cable. Even so, if the defendants were simply acting as agents for the sale there was no need at all to fix the price in the contract as between them and the plaintiff. It was contended for the plaintiff that according to the contracts the prices fixed are\n\nc..i.f. less 2! per cent and discount of 2! per cent was the commission for the defendants as agents. There is no use of the word \"commission\" in the contracts and we see no reason to hold that 2! per cent should be taken as commission and not as a margin of profit. The important point is that if the contract was one of agency there was no need to mention the price at all as between the plaintiff and the defendants. It may be that in most cases the prices which the defendants obtained from the London purchasers were the same as the prices stipulated in the contracts with the plaintiff but the fact remains that they obtained 2! per cent discount on the sale price, that is to say, they purchased the goods from the plaintiff 2! per cent less and sold them to their London purchasers at the full price, so that 2± per cent was their margin of profit. It is possible that sometimes they sold the goods to the London purchasers at a higher price in which case they would be entitled to the difference in prices as a profit in addition to the 2! per cent which they got from the plaintiff.\n\nIn all there are IOI contract forms and in accordance with these contract forms statements of account were furnished by the defendants to the plaintiff. Exhibit P-lA is the statement of account dated January 25, 1949 based upon the contract note Ex.\n\nP-1. It is true that the plaintiff did not sign any one of the contract F forms, but all of them were received by the plaintiff without any objection. Statements of account were prepared in terms of these contracts and the plaintiff was receiving moneys from the defendants on the basis of these contracts and according to the price fixed therein. He did not, at any time, raise the slightest protest against the terms of the contract or against the price fixed therein. On the other hand, he received all the contract forms and statements of G account as well as the moneys sent to him by cheque. The plaintiff cannot, therefore, be heard to say that he was not a consenting party to the contracts.\n\nThere is also the circumstance that before the goods were shipped to London they were subjected to a process of trimming and reassortment in the godowns of the defendants with a view to H make them conform to London standard and selection.\n\nIn that process the defendants often called upon the plaintiff to replace the\n\nI ,\n\n, t\n\nWOODROFFE & co. v. MAJID & co. (Ramaswami, J.) 7\n\npieces found defective. If the defendants were merely acting as a aents the process of trimming and reasserting in the god owns to ake the goods conform to London standards and specifications will be unnecessary, for in that case the defendants were merely bound to ship the goods as they were delivered to them. Another important feature of the transaction is that in several contracts time was fixed for delivery of the goods. In some cases like the contracts in forms like P-1 to P-3 the shipment has been effected before the contract forms were issued but there are some contracts which contained the stipulation that the bales were to be sent to the godowns of the defendants for shipment to be effected \"promptly\" which according to D.W. I, Ayyalu Chetti meant two weeks.\n\nThere were also some contracts like Ex. D-2(a) which required the goods to be sent for shipment to be effected within one month, and some other contracts within two months.\n\nAll the contracts. provided that time should be the essence of the contract. If the defendants were acting only as agents for the sale there is no reason why there should be a stipulation in the contract as to the time fixed for the delivery and the stipulation that time should be the essence of the contract. There is also a further .condition in the contracts that the sales-tax was on selier's 'accdunt, the seller being the plaintiff. This circumstance also indicates that the legal relationship between the parties was that of a seller and a purchase! and not of a principal and agent.\n\nOn behalf of the plaintiff it was argued that according to the contract the goods were to be marked with the plaintiff's mark. It is true that in some of the defendants' letters such as Ex. P-10 it was mentioned that the bales were sent with the plaintiff's mark in some shipments but this circumstance has not significance. It only means that the buyer resold the goods to the London purchaser with the mark of the plaintiff. It was also contended on behalf of the plaintiff that \"premium\" was paiil to the plaintiff in case the goods supplied were of special quality. It is in evidencnhat the \"premium\" was extra price obtained in London if the Boad of Control was satisfied about the special quality .of the goods (vid~\n\nD-10). It was pointed out that if the defendants were purchasers the premium should go to them but in some cases the premium was paid to the plaintiff. Exhibits P-7, P-10 and P-18 show that for some shipments the premium was paid to the plaintiff. The expl:ai1ation of D.W. I, Ayyalu Chetti is that in some cases the premium was paid to the plaintiff ex gratia. lf in London the quality of tl)C goods was found particularly good the premium was obtained from the London purchaser, that is to s~.y. the premium was obtained not as in terms of the contract \"but as a special payment if the goods happened to be of good quality: It is a \"payment therefore,\n\nL/S5SCI-3\n\n8 8U!'&Ddl COURT BllPORT8 (!966) 8Ul'P. 8.C, R.\n\nmade outside the terms of the contract and there is nothing significant if the defendants considered it fair and just to pay the whole\n\nof the premium to the plaintiff or to share it with him in some cases. It was also contended by the plaintiff that according to the terms of the contract the landed weight was to be accepted and the plaintiff was to be respo!lliible for the selection and quality of gcxxjs at the destination where inspection would be made by the defendants' agents or the ultimate London buyers. In some statements of account sent by the defendants the plaintiff has been debited various amounts for shortage in weight at London. The plaintiff was also informed about the claims made by the London purchasers on the ground of low standard and selection, that is to say, the plaintiff was made answerable for weight as well as quality.\n\nIt is true that the liability of the plaintiff is an additional burden thrown upon him under the terms of the contract but it is of no significance in collsidering the question as to whether there was transfer of title to the goods at the time of sh'pment from the plaintiff to the defendants. On behalf of the pla'.ntiff reference was also made to the fact that the contracts provided for a lien on all the goods covered by the contracts for all moneys advanced by the defendants, including expensei incurred and interest thereon. It is the admitted position that for purchasing skins and hides, the plaintiff was taking large sums of money as advances from the defendants. We find from the several statements of account that reference is made to all such advances. These advances together with interest thereon are deducted from the sale-price payable to the plaintiff and for the balance alone cheques were sent to him.\n\nIt appears that on a later date, i.e., in June, 1949 the defendants took a regular hypothecation deed, Ex. P-19 from the plaintiff in respect of all the advances to be made by the defendants. But it should be noticed that in making such advances, the defendants were only acting as creditors of the plaintiff and were, therefore, ent!tled to charge interest on such advances till they actually purchased the goods from the plaintiff. After the purchase of the goods they did not charge any interest on the moneys paid by them. It appears from the statements of account that interest was charged on advances upto the date of shipment. In other words, the title in the goods passed to the defendants at the moment of shipment of the goods and the fact was that interest was charged on all advances only upto the date of shipment. The charge or lien on the goods, therefore, subsisted till the time of shipment i.e., till the title in the goods passed to the defendants under the contract of sale. We are, therefore, unable to agree with the Counsel for the plaintiff that the clause with regard to the lien is not con- 1istcnt with the theory of the transactions being an outright sale.\n\nThere was also a suggestion on behalf of the plaint•ff that there cannot be a contract of sale subject to c.i.f. terms if there was an outright sale at Madras between the parties.\n\nWe do not think\n\n. • •\n\n~ ....\n\n--. .... . '\n\n--<\n\n'' ·~,\n\n;/-•\n\nWOOD)WFFE & co. v. MAJID & co. (Ramaswami, J.) 9\n\nthere is any substance in this argument. The primary object of the contract was that there was a purchase by the defendants from the plaintiff of the goods for resale in the United Kingdom and in keeping with this object the buyer stipulated with the seller for delivery of the goods abroad and for that purpose adopted a c.i.f. form of sale. It is also contended on behalf of the plaintiff that the term with regard to arbitration \"according to the custom obtaining in United Kingdom\" was not compatible with the theory of a sale between the parties. It is not possible to accept this argument as correct. It is open to the plaintiff to agree that even after the sale had taken place any dispute with regard to the quality of the goods and selection may be submitted to arbitration in the United Kingdom. It is true that a clause of this description is unusual but it is not inconsistent with the theory that there was a sale of goods between the parties at Madras. We have already observed that the contracts in this case were not c.i.f. contracts but the price alone was fixed on a c.i.f. basis.\n\nIt is well-established that even an agent can become a purchaser when an agent pays the price to the principal on his own responsibility. In Ex parte White, In re Nevil,(') T & Co. were in the habit of sending goods for sale to N who was a partner in the firm of N & Co., but received these goods on his private account. The course of dealing between T & Co. and N was that the goods were accompanied by a price list. N sold the goods on what terms he pleased, and each month sent to T & Co., an account of the goods he had sold, debiting himself with the prices named for them in the price list, and at the expiration of another month he paid the amount in cash without any regard to the prices at which he had sold the goods, or the length of credit he had given. On these facts it was held by the Court of Appeal in Chancery that though both the parties might look upon the business as an agency, N did not, in fact, sell the goods as agent of T & Co., but on his own account, upon the terms of his paying T & Co. for them at a fixed rate if he sold them, and the moneys he received for them were therefore his own moneys, which T & Co., had no right to follow.\n\nA similiar principle has been expressed in W. T. Lamb and Sons v. Goring Brick Company, Ltd.(') In that case, certain manufacturers of bricks and other building materials, by an agreement in writing, appointed a firm of builders' merchants as \"sole selling agents of all bricks and other materials manufactured at their works\". The agreement was expressed to be for three years and afterwards continuous subject to twelve months' notice by either party. While the agreement was in force the manufacturers informed the merchants that they intended in the future to sell their goods themselves without the intervention of any agent,\n\n(I) (1871) 6 Ch. 397 LIS5S0!-3(a)\n\n(2) [!932] I K.B. 710.\n\nBUPRU!B OOUIIT RBPORTS\n\n[1966) SUPP. S.C, R.\n\nand thereafter they effected sales to customers directly.\n\nAn action was then brought by the merchants for breach of the agreement. It was held by the Court of Appeal that the effect of the agreement was to confer on the plaintiffs the sole right of selling the goods manufactured by the defendants at their works, so that neither the defendants themselves nor any agent appointed by them, other than the plaintiffs, should have the right of selling such goods. It was also held that the agreement was one of vendor and purchaser and not one of principal and agent. Though the term 'agent' was used in the agreement. the Court of Appeal considered that the substance of the transaction was that the manufac- 'turers sold their bricks to the so-called agent who in turn sold them on their own responsibility to customers. The price charged by the manufacturers to the sole selling agents was the ruling market price and the sole selling agents were allowed a deduction of 10 per cent by way of commission on that price. The manufacturers had no concern at what rate the sole selling agents sold the goods to customers. It was clear from these facts that the sale by the selling agents to customers was a transaction in which the manufacturers were not interested and there was no privily of contract between the manufacturers and the ultimate purchasers. Reference may be made, in this connection to the following passage from Blackwood Wright, 'Principal and Agent', Second &In. page 5:\n\n\"In commercial matters, where the real relationship is that of vendor and purchaser, persons are sometimes called agents when. as a matter of fact, their relations are not those of principal and agent at all, but those of vendor and purchaser. If the person called an 'agent' is entitled to alter the goods, manipulate them, to sell them at any price that he thinks fit after they have been so manipulated, and is still only liable to pay for them at a price fixed beforehand, without any reference to the price at which he sold them. it is impossible to say that the produce of the goods so sold was the money of the consignors, or that the relation of principal and agent exists-Ex parte White, In re Nevill (1871), 6 Ch. 397- A purchaser has not to account to his vendor; his only duty is to pay him; and all the other rights and duties which exist between principal and agent do not exist between vendor and purchaser-Ex parte Bright, In re Smith (1879), 10 Ch. Div. 566; Ex parte White. In re Nevill-0871) 6 Ch. 397-.\" For the reasons already given we are of the opinion that the defendants were purchasers of the plaintiff's goods under the ;\\C'Veral contracts and not his agents for sale and the view taken by the High Court on this aspect of the case is not correct and must be overruled.\n\n.._\n\n~ !\n\n~ '\n\n.-~\n\n--{._\n\nWOODROFFE & co. v. MAJID & co. (Rarnaswarrvi, J.) 11\n\nWe pass on to consider the second question involved in this case, viz., whether there was a settled account between the parties and whether it is open to the plaintiff to reopen it.\n\nIt is admitted in this case that for almost every shipment the defendants prepared a statement of account and sent it to the plaintiff giving full particulars of the amount due to him together with the deduction and showing the net balance payable to him and enclosing a cheque for such balance or giving a credit for the sum in the accounts. Copies of such accounts are Ex. P-lA, P-2A and P-3A corresponding to the contracts Exs. P,1, P2 and P-3. Copies of other accounts have been filed by the defendants in the Court and marked Ex. D-18 series. The plaintiff in bis evidence did not deny the receipt of these accounts. On the contrary, he admitted in cross-examination that for every shipment he was getting accounts and cheques for the balance due. It is an admitted fact that to these statements of account no objection was raised by the plaintiff at any time. Nor a single document has been produced on his side to show that he ever wrote to the defendants raising an objection to the statements of account. Not only the plaintiff failed to raise objection to the several statements of account but at one stage sent a memorandum to the defendants accepting the accuracy of the accounts. On June 20, 1949, the defendants wrote a letter, Ex. P-16, to the plaintiff stating that there was a balance of Rs. 1,26,37917 /2 payable by him, and that against the balance they were holding certain goods belonging to the plaintiff and asking him to confirm the statements. On June 22, 1949 the defendants again wrote a letter-Ex. D-5, enclosing a statement of account Ex. P-17 showing the said balance of Rs. 1,26,37917 /2 and asking the plaintiff for confirmation. On receipt of this statement the plaintiff signed the memorandum, Ex. D-4 on June 22, 1949 and sent it to the defendants confirming the correctness of the balance as due by him and also confirming the stock of his goods remaining with the defendants. The plaintiff conceded in his evidence having signed Ex. D-4 after the receipt of the statement of account, Ex. P-17. The plaintiff explained that he did not look into the correctness of the figures but believed Ex. P-17 to be correct '&as it was sent by an English firm\".\n\nThe plaintiff also said that he was told by the defendants' broker that if he did not sign it, it would be harmful to him. The trial Judge refused to accept the explanation of the plaintiff and held that the plaintiff had accepted all statements of acc.ount as correct and, therefore, it must be held in law that the accounts were settled and the plaintiff could be allowed to reopen it only by proof of fraud or mistake or any other sufficient equitable ground.\n\nH The legal position is that the accounts are settled or state<l if they are submitted and accepted as correct by the other side to whom the accounts have been rendered. Such a statemP.nt of\n\n12 SUPREllB OOURT RBPORTS [1966] SUPP. s.o.R.\n\naccounts need not be in writing, nor is it necessary that before the accounts are settled, they should be gone into by the parties and scrutinised and supported by vouchers. It is sufficient if the accounts are accepted and such acceptance may be inferred by conduct of parties.\n\nAs observed in Daniell's Chancery Practice, eighth edition, Vol. I, p. 419:\n\n\"The mere delivery of an account will not constitute a stated account without some evidence of acquiescence which may afford sufficient legal presumption of a settlement.\" There is also the following passage in Bullen and Lcake's Precedents of Pleadings, ninth editioo, p. 584: C \"It is not enough for the accounting party merely to deliver his account; there must be some evidence that the other party has accepted it as correct. But such acceptance need not be express; contemporaneous or subsequent conduct may amount to a sufficient acquiescence.\"\n\nAgain, in Willis v. Jernegan(') the Lord Chancellor was dealing with the two objections raised by the plaintiff's counsel to the defendant's plea of a stated account. It was observed by the Lord Chancellor that there was no absolute necessity that the account should be signed by the parties who had mutual dealings to make it a stated account, for even where there were transactions, suppose, between a merchant in England and a merchant beyond sea, and an account was transmitted to England from the person who was abroad, it was not the signing which would make it a stated account, but the person to whom it was sent, keeping it by him any length of time, without making any objection which should bind him and prevent his entering into an open account afterwards. In another case, Tickcl '\" Short, (') the Lord Chancellor expressed the opinion that it is the rule of the Court that where a merchant kept an account current by him for about two years without objection, the Court will consider that the accounts are stated or settled. The same principle has been expressed by the Bombay High Court in Seth Manek/a/ Mansukhbhai v.\n\nJwaladutt Rameshwar Pillani(') in which it was pointed out that it was sufficient if the accounts were accepted and such acceptance might be inferred by conduct of parties.\n\nThe contention on behalf of the defendants is that there has been a \"stated\" or \"settled\" account in this case and in the absence of fraud, mistake or any other sufficient equitable ground it is not liable to be reopened at the instance of the plaintiff. In this connection it is necessary to state that the expression \"account\n\nCl) (17•1) 2 A\\k. 251. (~) (1750-.11) ! v ... (Sen.) 239.\n\n(I) I.L.R. [1947] Born. 378.\n\n.l '\\- .\n\n-f A\n\nWOODROFFE & co. v. MAJID & co. (Ramaswami, J.) lS\n\nstated\" has more than one meaning. It sometimes means a claim to payment made by one party and admitted by the other to be correct. An account stated in this sense is no more than an admission of a debt out of court, whi!e it is no doubt cogent evidence against the admitting party, and throws upon him the burden of prov mg that the debt 1s not due, it may, like any other admission, be shown to have been made in error. Where the transaction is of this character, it makes no difference whether the account is said to be \"stated\" or to be \"stated and agreed\"; the so-called agreement is without consideration and amounts to no more than an admission. There is however a second kind of account stated where the account contains items both of credit and debit, and the figures on both sides are adjusted between the parties and a balance struck. This is called by Mr. Justice Blackburn, in Laycock v. Pickles(') a \"real account stated,\" and he describes it as follows:\n\n\"There is a real account stated, called in old law an insimul computassent, that is to say, when several items of claim are brought into account on either side, and, being set against one another, a balance is struck, and the consideration for the payment of the balance is the discharge of the items on each side. It is then the same as if each item was paid and a discharge given for each, and in consideration of that discharge the balance was agreed to be due. It is not necessary, in order to make out a real account stated, that the debts should be debts in praesenti, or that they should be legal debts. I think equitable claims might be brought into account, and I am not certain that a moral obligation is not sufficient.\n\nIt is to be taken as if the sums had been really paid down on each side; and the balance is recoverable as if money had been really taken in satisfaction; subject to this, that where some of the items are such that, if they had been actually paid, the party paying them would have been able to recover them back as on a failure of considera ti on, the account stated would be invalidated.\" In the present case, the \"settled account\" between the parties falls within the second kind of \"account stated\" and it is to an account of this description that the equitable doctrine of \"settled account\" has to be considered.\n\nThis statement of the law has been affirmed by Lord Wright in delivering the opinion of the Judicial Committee in Bishnu Chan v. Birdhari Lal(') as the follows:\n\n\"Indeed, the essence of an account stated is not the H character of the items on one side or the other, but the\n\n(1) 4 B. and S., 497.\n\n(2) A.I.II. 1984 P.O. 147.\n\nI~ SCl'REUE COURT RF.PORTH [1966) Sl'PI'. 8.~.R.\n\nfact that there arc cross items of account and that the parties mutually agree the several accounts of each, and by treating the items so agreed on the one side as discharging the items on the other side pro tanto, go on to agree that the balance only is payable. Such a transaction is in truth bilateral and creates a new debt and a new cause of action. There are mutual promises, the one side agreeing to accept the amount of the balance of the debt as true (because there must in such cases be, at least in the end, a creditor to whom the balance is duel and to pay it, the other side agreeing the entire debt as at a certain figure and then agreeing that it has been discharged to snch and such an extent, so that there will be complete satisfaction on payment of the agreed balance.\n\nHence, there is mutual consideration to support the pro mises on either side and to constitute the new cause of action. The account statdd is accordingly binding, save that it may be re-opened on any ground for instance, fraud or mistake which would justify setting aside any other agreement.\" In the present case, the correctness of the statements of account furnished by the. defendants has been challenged by the plaintiff under 13 heads. In view of our finding that the transactions between the parties were not on the basis of an agency but on the basis of an outright sale the accounts cannot be reopened under any of these heads of challenges. The trial court has already gone into the evidence and ha~ reached the finding that there was no fraud, mistake or any other sufficient equitable ground for reopening the finality of the accounts.\n\nAs regards one item, viz .. rebate in marine insurance, the trial court has ordered that the plaintiff should be given credit for a small sum of Rs. 157 /- though there was no evidence of fraud on the part of the defendants. The trial court has rejected the claim of the plaintiff for reopening the accounts on any other ground and in view of otir finding that the legal relationship between the parties was not one of agency, we see no reason for interfering with the decision of the trial court on this aspect of the case also.\n\nFor the reasons expressed, we allow this appeal and set aside the judgment and decree of the High Court in 0.S. Appeal No. 22 of 1955 dated the 15th December, 1959 and restore the judgment and decree of the trial )udge dated May 6, 1954 dismissing the suit of the plaintiff and h'Tanting a decree for the counter-claim of the defendants. The defendants arc entitled to the costs oi this appeal in this Court and in the High Court.\n\nAppeal allowed.\n\nF ·-\n\n:J-• '", "total_entities": 7, "entities": [{"text": "GORDON WOODROFFE & CO", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "GORDON WOODROFFE & CO", "offset_not_found": false}}, {"text": "SHEIKH M. A. MAJID & CO", "label": "RESPONDENT", "start_char": 24, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "SHEIKH M. A. MAJID & CO", "offset_not_found": false}}, {"text": "K. SuBBA RAO", "label": "JUDGE", "start_char": 67, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 81, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "V. RAMASWAMI", "offset_not_found": false}}, {"text": "M. SHELAT, JJ", "label": "JUDGE", "start_char": 101, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT", "offset_not_found": false}}, {"text": "S 497", "label": "PROVISION", "start_char": 4826, "end_char": 4831, "source": "regex", "metadata": {"statute": null}}, {"text": "S5S", "label": "PROVISION", "start_char": 20835, "end_char": 20838, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_1_209_214_EN", "year": 1966, "text": "P. L. LAKHANPAL\n\nUNION OF INDIA\n\nApril 19, 1966\n\n[AK. SARKAR; C.J., M. HIDAYATULL/IH,\n\nR.S.\n\nBACHAWAT, J.M.\n\nSHELAT AND RAGHUBAR DAYAL, JJ.J\n\nDefe.nce of India Rules, 1962 r. 30(1) (b)-Jf ultra vires s. 3(2)(15)'\n\n(i) of Defence of India Act-Constitution of India, Art. 352-Proc!amation-If to state, satisfaction of Emergency.\n\nThe petitioner, the editor of a newspaper, was detained u!'der r. 30(l)(b) of the Defence of India Rules, 1962. He filed a petition under Art 32 of the Constitution for a writ of habeas corpus char-. lenging th\n\n0e legality of the detention order on various grounds. Dismissing the petition, HELD: Rule 30(1) (b) cannot be said to be ultra vires of s. 3(2)(15)\n\n(i) of the Defence of India Act for the reason that it does not state that the satisfaction of the authority making the order of detention has to be on grounds appearing to it to be reasonable. The rule requires only that the detaining authority must be satisfied that the detentoon is necessary for the purposes mentioned and that is what the latter part of the section under which it was made also says.\n\nThis part does not contain any requirement as to satisfaction on reasonable grounds. The rule has clearly been made in terms of the section authorising it. [211 Fl Article 352 of the Constitution does not require the proclamation to state the sat:sfaction of the President about the Emergency.\n\nThe Article requires only a declaration of emergency threatening the security of India by one of the causes mentioned. The words\n\n\"to that effect\" can have no other meaning. A proclamation ceases to have effect only by one of the events mentioned in cl. 2 of Art. 352 of the Constitution. [212 CJ Section 3(2) (15)(iv) of the Defence of India Act and r. 30-A of the Defence of India Rules, does not g; ive a right to make a representation. Their effect is to provide a review of the detention order by the authorities and in the manner mentioned. Rule 23 of the Defence of India (Delhi Detenus) Rules, 1964, states that a detenue will be allowed to interview a legal practitioner for the purpose of drafting his representation against his detention. [213 C-D].\n\nThe fact that newspapers and men connected with them may be dealt with under other provisions of the Act and Rules does not prevent detention of such persons under r. 30(1)(b) of the Defence of India Rules. [213 H] The order need not mention the part of India which was to be prejudicially affected by the acts of the detenue.\n\nORIGINAL JURISDICTION: Writ Petition No. 47 of 1966.\n\nPetition under Art. 32 of the Constitution of India for the en- H forcement of fundamental rights.\n\nThe petitioner appeared in person.\n\n~](I IUl6tij srPr. s.c.1\"\n\nNiren D<', Ac/c/itiona/ Solicitor-General, N. S. Bindra, R. H.\n\nDhebar and B.R.G.K. Achar. for the respondent.\n\nR. V. S. Mani. for !he intervener.\n\nThe Judgment of the Court \"\"\" delivered by\n\nSarkar, C.J. The petitioner.\n\nPuran Lal Lakhanpal, was arrested and detained uuder cl. ibl ot sub-r. (J) of Ruic 30 of the Defence of India Rules. 1962 by an order passed on December IO, 1965 and directed to be detained in Centr<d Jail. Tehar. New Delhi.\n\nThe order state,: that:\n\n\"WHEREAS the Central Government is satisfied that c with a view 10 preventing Shri P.L. Lakhanpal. son of late Shri Diwan Chand Sharma from acting in a manner prejudicial to 1he Defence of India and Civil Defence. rublic safety and the maintenance of public order. it is necessary that h~ 'hould h~ detainerl:\n\nNOW. THEREFORE. . .... the Central D Government hereby <lirects that the said Shri P. L. Lakhanpal be detained.\"\n\nHe has moved this Coun under An. 32 of the Constitution hv a\n\npetition presented on December 24. 1965 for a writ of habeas corpus directing his release. He challenges the legality of the detention order on varieus grounds which we now proceed to consider.\n\nThe first ground is that r. JO(l)(b) is ultra vires s. 3(2)(15)(i) of the Defence of India Act under which the Rules were made. Sub-s. (!) of s. 3 contains the general power to make rules for certain purposes. Sub-section (2) states that the rules made may provide for and many empower any authority to make orders providing for all or any of the following matters. namely: --\n\n\"<15) notwithstanding anything in any other law for the ' time being in force.\n\n(j) the apprehens'on and detention in custody of any person whom the authority empowered ............... suspects. on e grounds appearing to that authority to be reasonable . .. .. .. . .. .. acting. being about to act or being likely to act in a manner prejudicial to the defence of India and civil defence, the security af the State, the public safety or interest. the maintenance of public order, .................. or with respect to whom that authority is satisfied that his apprehension and B detention are necessary for the purpose of preventing him from acting in any such prejudicial manner.\"\n\nLAKHANPAL\n\n11. UNION (1'5a,.kor, ( ' . . 7.) 211\n\nA Rule 30(l)(b) is in these terms:\n\n\"The Central Government ............... if fr is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the main- B tenance of public order... may make an orderc\n\n(b) directing that he be detained.\"\n\nIt will be noticed that the rule does not say that the satisfaction mentioned in it shall be on grounds appearing to the authority concerned to be reasonable. It is said that by omitting these words the rule has gone outside the section which mentions them, and is, therefore, ultra vires. This contention is untenable. It overlooks the fact that the latter part of the section states that the rules made under it may also provide for the apprehension and detention of a person \"with respect to whom that authority is satisfied that his apprehension and detention are necessary\" for certain purposes; this part does not contain any requirement as to satisfaction on reasonable grounds. This part of the section is independent of the earlier part under which the apprehension and detention can be directed only when the authority suspects on certain grounds appearing to it to be reasonable that a person is about to act in a certain manner. It is of some significance to point out that the second part of the section is preceded by the word 'or'. That puts it beyond doubt that the rules made under it may provide for detention in two alternative cases, for the first of which only it is necessary that the authority should entertain a suspicion on grounds appearing to it to be reasonable. That requirement is absent in the case of a rule made under the second part of the section. Rule 30(l)(b) cannot be said to be ultra vires the section for the reason that it does not state that the satisfaction of the authority making the order of detention has to be on grounds appearing to it to be reasonable. The rule requires only that the detaining authority must be satisfied that the detention is necessary for the purposes mentioned and that is what the latter part of the section under which it was made also says. The rule has clearly been made in terms of the section authorising it.\n\nIt was next said that the Proclamation of Emergency made by the President under Art. 352 of the Constitution which prevented the Act from being illegal, was nm in terms of the article as it did not state that the President was satisfied that a grave emergency existed. It is true that the Proclamation did not do that. It stated:\n\n\"In exercise of the powers conferred by clause (!) of article 352 of the Constitution, I Sarvapalli Radhakrishnan, Presi- H dent of India, by this Proclamation declare that a grave emergency exists whereby tke security of India is threatened by external aggression.\"\n\nSUPREMF. COURT RF.PORTS [1966] SGPP, s.o.R.\n\nWe, however, find nothing in the Article which requires the Pro- A clamation to state the satisfaction of the President about the emergency. Article 352(1) reads,\n\n\"If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or B internal disturbance, he may, by Proclamation, make a declaration to that effect.\"\n\nThe Article requires only a declaration of emergency threatening the security of India by one of the causes mentioned. The words \"to that effect\" can have no other meaning. The power to make the declaration can no doubt be exercised only when the President is satisfied about the emergency, but we do not sec that the Article 0 requires the condition precedent for the exercise c, f the power, that is, the President's satisfaction, to be stated in the declaration. The declaration shows that the President must have satisfied himself about the existence of the emergency for in these matters the rule that official acts are presumed to have been properly perfonned applies and there is nothing proved by the petitioner to displace that presumption. We were referred to certain other provisions, viz..\n\nD Art. 3!1(2)(c) of the Constitution and r. 30(1 )(b) of the Rules and it was contended that these provisions require the satisfaction to be stated. It is unnecessary to decide whether they so require. Even if they did, the requirement of the statement of the President's satisfaction in the present case has to be decided on the terms of Art 352 alone. We have said that this Article does not contain any such requirement. It is of interest to point out here that the petitioner E stated in his petition that he exended his full support to the Govern ment on the Proclamation of Emergency. Obviously he could not have done so if he had any doubt about the legality of the Proclamation. Then it was said that the Proclamation should have stated the direction from which the external aggression which it mentioned was apprehended. We find nothing in the Article to require the Proclamation to state this. The Proclamation was issued on Octo- F ber 26, 1962 when. it is well known, India's integrity was threatened by China.\n\nIt was also stated that the continuGnce of Emergency which was declared over three years ago is a fraud on the Constitution.\n\nWe were told that the President in his address to the Parliament in February this year did not state that the Emergency continued to G exist. The President's address has not been produced, and we do not know what it contained. However that may be, Art. 352 itself by cl. (2) provides that a Proclamation issued under cl. (I) may be revoked by a subsequent Proclamation and shall cease to operate at the expiration of two months unlcs.~ before the expiration of that period it has been approved by resolutions of both Houses of H Parliament. This clause also states that the Proclamation shall be laid before each House of Parliament. It has not\n\nI I\n\nII-·\n\n~.\n\nLAKHANPAL v.\n\nUNION (Sarkar, c. J.) 213\n\nbeen stated that the Houses of Parliament did not approve of the Proclamation within the period of two months. It would appear, therefore, that the only way a Proclamation ceases to have effect is by one of the events mentioned in this clause. None of them has happened. Nothing contained in an address by the President to the Houses of Parliament can operate to terminate the Proclamation.\n\nIn this connection it was also said that 'external aggression' means armed aggression and as for some time past there was no armed aggression against the territory of India, the continuance of the Proclamation was unjustified. This contention must also faH on the ground which we have just mentioned.\n\nAnother challenge to the legality of the detention was that the petitioner had not been allowed to make any representation against his detention. Our attention was drawn in this connection to s. 3(2) (15)(iv) of the Act and r. 30-A of the Rules and also to r. 23 of the Defence of India (Delhi Detenues) Rules, 1964. The two first mentioned provisions do not, in our opinion, give a right to make a representation. Their effect is to provide a review of the detention order by the authorities and in the manner mentioned. The last one states that a detenue will be allowed to interview a legal practitioner for the purpose of drafting his representation against his detention.\n\nIt has not been stated in the petition that the petitioner was prevented from making any representation or denied the opportunity to consult a legal practitioner. All hat is said is that he had not been furnished particulars of his writings and materials on which the satisfaction of the Central Government mentioned in the order was based and that had prevented him from making a representation to the Government against his detention. This contention seems to us unwarranted. There is nothing to show that the detention order had been based on petitioner's writings, nor has out' attention been drawn to any provision which requires the detaining authority to supply the materials on which they had formed their satisfaction about the necessity of the detention.\n\nThen it was said that the order of detention violated s. 44 of the Act and s. 3(2)(4)(b), (6), (7)(a)(b)(c) and (d) and rr. 41, 42, 44, 45 and 46 of the Rules. The substance of the contention is that the petitioner was the editor of and ran a newspaper and that action against him could only be taken under the sections and rules earlier mentioned and not under r. 30(l)(b). This contention seems to us to be entirely groundless. The provisions referred to no doubt deal with newspapers and the manner of controlling them but they in no way lead to the conclusion that a newspaper editor may not, if the occasion arises, be detained under r. 30(1)(b). The fact that newspapers and men connected with them may be dealt with in a certain manner does not prevent detention of such persons under r. 30(1)(b). It was also said that r. 30(1)(b) requires that the part of India which is to be prejudicially affected by the acts of the detenue has to be mentioned in the order. This is an idle contention. The\n\n214 •t:Pl\\E>IE l'OURT REPORTS\n\n[1966] BUPP. S.O.R.\n\nrule no doubt says that the detention may be ordered to prevent a person from acting in a manner prejudicial to the maintenance of peaceful conditions in any part of India, but it also says that the detention can be orderc<l for preventing a person from acting in a manner prejudicial to the defence of India, civil defence and public safety and maintenance of public order with regard to which there is no requirement provided that they should be confined to any part of India or that that part should be mentioned in the order of detention. The order in this case was made on these grounds. The petition furnishes no material for saying that the terms of s. 44 have been violated. There is nothing to show that the detention interfered with the petitioner's avocation in life in a manner not justified by that section.\n\nThe last ground taken was that the detention order was ma/a fide because the Home Minister had not sworn an affidavit to say that he was satisfied about the necessity fer the detention. There is a bald allegation in the petition that the detaining authority had not applied its mind to the matter before making the order of detention. This part of the petition was verified as true to the petitioner's knowledge. This verification was plainly false and. therefore. the allegation in the petition required no answer. However. that may be. a Deputy Secretary to the Home Ministry of the Government of India has sworn an affidavit stating as true to his knowledge that the materials in connection with the activities of the petitioner were placed before the Union Home Minister and. on a considera tion of those materials. the Minister was satisfied that the detention order was necessary.\n\nThe result is that this petition fails and it is accordingly dismissed.\n\nPetition dismisJed.\n\n• R\n\nJI··", "total_entities": 33, "entities": [{"text": "P. L. LAKHANPAL", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "P. L. LAKHANPAL", "offset_not_found": false}}, {"text": "UNION OF INDIA", "label": "RESPONDENT", "start_char": 17, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "AK. SARKAR", "label": "JUDGE", "start_char": 50, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "BACHAWAT, J", "label": "JUDGE", "start_char": 93, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "SHELAT", "label": "JUDGE", "start_char": 109, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT", "offset_not_found": false}}, {"text": "RAGHUBAR DAYAL, JJ", "label": "JUDGE", "start_char": 120, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "RAGHUBAR DAYAL", "offset_not_found": false}}, {"text": "India Rules, 1962", "label": "STATUTE", "start_char": 154, "end_char": 171, "source": "regex", "metadata": {}}, {"text": "s. 3(2)(15)", "label": "PROVISION", "start_char": 200, "end_char": 211, "source": "regex", "metadata": {"linked_statute_text": "India Rules, 1962", "statute": "India Rules, 1962"}}, {"text": "Defence of India Act", "label": "STATUTE", "start_char": 221, "end_char": 241, "source": "regex", "metadata": {}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 242, "end_char": 263, "source": "regex", "metadata": {}}, {"text": "Art. 352", "label": "PROVISION", "start_char": 265, "end_char": 273, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Defence of India Rules, 1962", "label": "STATUTE", "start_char": 410, "end_char": 438, "source": "regex", "metadata": {}}, {"text": "Art 32", "label": "PROVISION", "start_char": 466, "end_char": 472, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Rules, 1962", "statute": "the Defence of India Rules, 1962"}}, {"text": "s. 3(2)(15)", "label": "PROVISION", "start_char": 677, "end_char": 688, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Rules, 1962", "statute": "the Defence of India Rules, 1962"}}, {"text": "Article 352", "label": "PROVISION", "start_char": 1261, "end_char": 1272, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India Rules, 1962", "statute": "the Defence of India Rules, 1962"}}, {"text": "cl. 2", "label": "PROVISION", "start_char": 1642, "end_char": 1647, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 352", "label": "PROVISION", "start_char": 1651, "end_char": 1659, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 3(2)", "label": "PROVISION", "start_char": 1689, "end_char": 1701, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 2551, "end_char": 2558, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 2566, "end_char": 2587, "source": "regex", "metadata": {}}, {"text": "s. 3(2)(15)(i)", "label": "PROVISION", "start_char": 3906, "end_char": 3920, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3996, "end_char": 4000, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 352", "label": "PROVISION", "start_char": 7297, "end_char": 7305, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "article 352", "label": "PROVISION", "start_char": 7602, "end_char": 7613, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 352(1)", "label": "PROVISION", "start_char": 8002, "end_char": 8016, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 0", "label": "PROVISION", "start_char": 8616, "end_char": 8625, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 9103, "end_char": 9109, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art 352", "label": "PROVISION", "start_char": 9440, "end_char": 9447, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 352", "label": "PROVISION", "start_char": 10499, "end_char": 10507, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 11839, "end_char": 11846, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 13145, "end_char": 13150, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3(2)(4)(b)", "label": "PROVISION", "start_char": 13166, "end_char": 13179, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 14803, "end_char": 14808, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_1_215_223_EN", "year": 1966, "text": "UTTAR PRADESH CO-OPERATIVE FEDERATION LTD.\n\nMIS SUNDER BROTHERS OF DELHI\n\nApril 20, 1966\n\n(K. SUBBA RAO AND V. RAMASWAM!, JJ.]\n\nIndian Arbitration Act, s. 34-Arbitration agreement-Parties how far bound to have dispute decided by agreed arbitrator-One of the parties filing suit-Court's discretion to stay such suit-Appellate Court's power to interfere with trial court's discretion under s. 34.\n\nThe appellant society carried on business as public carriers on the Kanpur-Delhi route. By an agreement in 1954 they appointed the respondents as their Managing Agents for a period of 3 years. But much before the expiry of that period they terminated the agreement. Disputes arising between the parties were under the agreement, to be decided by arbitration as provided in the Co-operative Societies Act II of 1912. According to the relevant provisions of the said Act disputes were to be decided by the Registrar of Co-operative Societies or by an arbitrator or arbitrators appointed by him.\n\nThe respondents however filed a suit against the Society asking for a declaration that the termination of the agreement by the society was illegal and for a mandatory injunction restraining the society from term.inati.ng the agreement. The Society thereupon filed an application under s. 34 of the Indian Arbitration Act praying for a stay of the aforesaid suit on the ground that the respondents had agreed to arbitration as provided in the Co-operative Societies Act.\n\nThe trial Court stayed the suit but the appellate Court set aside the trial Court's order and dismissed the application under s. 34.\n\nThe High Court upheld the appellate Court's order whereupon, by special leave, the society appealed to this Court.\n\nHELD: (i) The High Court rightly refused to stay the suit. It rightly observed that it would be a difficult task for the arbitrator to investigate as to which of the rules made under the Co-operative .\n\nSocieties Act are consistent with and which of those rules are not consistent with the provisions of the Indian Arbitration Act.\n\nThe suit, moreover, was filed as far back as 1954 and its stay would not be in the interests of it~ speedy disposal. [219 G-220 BJ\n\n(ii) It is, of course. the normal duty of the court to hold the parties to the contract and to make them nresent their disputes to the forum of their choice, but the strict or:mciple of sanctity of contract is subject to the discretion of the Court under s. 34 of the Indi'an Arbitration Act. A party may be released from the bargain if he can show that the selected arbitrator is likely to show bias or there is sufficient reason to suspect' that he will act unfairly or that he has been guilty of unreasonable conduct. [222 DJ In the present case the respondent had alleged that the Registrar Co-operative Societies had approved the termination of the contract of Managing Agency with the plaintifT and the Registrar was H the Chairman of the Defendant-Society. In the circumstances the High Court m_ust be hrld to hc:tve properly exercised it~ discretion under s. 34 of the Indian Arbitration Act in not granting a s!Ay of the proceedings in the suit. [222 EJ.\n\nL/S5SCI-16\n\n216 BcPREME COURT REPORTS [1966] SUl'P, 8, C, R.\n\nBristol Corporation v. Jolin Aird & Co. [19131 A.C. 241, referred A to.\n\n(iii) Ii it appears to the appellate Court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the Appellate Court to intt>rfcre with the trial court's exercise o[ discretion, [222 HJ B Charles Osenton & Co. v. Johnston, [1942) A.C. 130, referred to.\n\nCiVJL APPELLATE JURISDICTIOS: Civil Appeal No. 426 of 1964.\n\nAppeal by special leave from the judgment and order dated February 22. 1962 of the Punjab High Court (Circuit Bench) at Delhi in Civil Revision No. 311-D of 1958.\n\nS. P. Sinha and lnder Sen Sawhncy, for the appellant.\n\nK. K. Jain and Bishambar Lal, for the respondent.\n\nThe Judgment of the Court was delivered by Rallllllwami, J. This appeal is brought, by special leave, from\n\nthe judgment of the Punjab High Court dated February 22, 1962 in Civil Revision No. 33iD of 1958 whereby the High D Court upheld and confim1ed the judgment of the Appellate Court and set aside the judgment of the trial court staying proceedings in the suit.\n\nThe Uttar Pradesh Co-operative Federation Limited (hereinafter referred to as the 'Society') was registered under the Cooperative Societies Act No. II of 1912 at Lucknow and was carry- E ing on the business of plying public carriers on Kanpur-Delhi route. The Society had been granted, for this purpose, permits by the Uttar Pradesh Government and Delhi Administration for seven vehicles. In March, 1954. the Society entered into an agreement with the plaintiffs-MI s Sunder Brothers-through Bimal Kumar Jain and Ohan Kumar Jain by which they were appointed as Managing Agents for carrying on the business as public car- F riers. The terms of the Managing Agency agreement were embodied in a letter dated March 2, 1954 written by the Secretary of the Society. Clause 28 of the agreement rc.1ds as follows:-\n\n\"That in the event of there being any dispute regarding the terms and conditions of this agreement and your appointment hereunder as Managing Agents of the aforesaid business or any matter arising from and relating thereto or the subject G matter thereof. such dispute shall be decided by arbitration as provided under Co-operative Societies Act II of 1912 and you undertake and agree to be bound by the provisions for arbitration in the said Act\".\n\nThe agreement was to last for a period of three years but on July B 5, 1954 the Society terminated the agreement by its letter dated July 5, 1954. The plaintiffs therefore brought a suit on August\n\nCOOP. FEDERATION v SUNDER BROS. (Ramaswaini, J.) 217\n\n18, 1954 in the Court of the Subordinate Judge, First Class, Delhi praying for a declaration that the termination of the Managing Agency agreement by the Society was illegal and the plaintiffs were entitled to continue the business of Managing Agents in accordance with the terms and conditions of the agreement. The plaintiffs prayed for a mandatory injunction restraining the defendant-Society from terminating the agreement. The Society made an application under s. 34 of the Indian Arbitration Act, 1940 before the Subordinate Judge, Delhi, for an order for staying the suit. It was claimed by the Society that the suit was not maintainable because under s. 51 of the Co-operative Societies Act the dispute was to be adjudicated upon by the Registrar of Co-operative Societies. In the alternative it was alleged that by agreement between the parties the dispute was to be referred to arbitrati'on in accordance with the Co-operative Societies Act and consequently proceedings should be stayed. The trial court stayed the proceedings but on the appeal of the plaintiffs the order of the trial court was set aside and the application of the Society under s. 34 of the Indian Arbitration Act was dismissed. The Society moved the Punjab High Court in revision but the revision application was dismissed and the order of the lower appellate court was confirmed.\n\nIt is necessary at this stage to set out the relevant provisions of the Indian Arbitration Act (Act JO of 1940). Section 34 of this Act states:\n\n\"34. Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings, and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings\".\n\nSection 46 provides as follows:\n\n\"46. The provisions of this Act, except sub-section (1) of H section 6 and sections 7, 12, 36 and 37, shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an L/S5SCI-16(nJ\n\n218 SUPREllE COURT REPORTS [1966] SUPP. s.c.R.\n\narbitration agreement as if that other enactment were an A .irbitration agreement, except in so far as this Act is in consistent with that other enactment or with any rules made thereunder\".\n\nSection 47 reads as follows: \"47. Subject to the provisions of section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder:\n\nProvided that an arbitration award otherwise obtained may with the consent of ail the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending\".\n\nThere was some controversy in the lower courts as to whether the arbitration under cl. 28 of the agreement was a statutory arbitration and whether s. 46 of the Indian Arbitration Act was applicable to the case. It was argued by Mr. Sinha on behalf of the appellant-Society that no statutory arbitration is created by\n\ncl. 28 of the agreement but the parties had merely agreed to act in accordance with the provisions of the Co-operative Societies\n\nAct (Act II of 1912) and the Rules made thereunder. It was contended that the parties had merely incorporated the statutory provisions by reference in their agreement and s. 47 of the Indian Arbitration Act will. therefore, be applicable to the case.\n\nThis legal position was not controverted by Mr. K. K. Jain appearing E on behalf of the respondent. The only question in debate was whether the lower court rightly exercised their jurisdiction under s. 34 of the Indian Arbitration Act in not granting the stay of the\n\nproceings of the suit.\n\nIf the arbitration agreement is not to be treated as a statutory arbitration under s. 46 of the Arbitration Act but an arbitration agreement under s. 47 of the Act, then the procedure to be F followed for the arbitration under that agreement will be that provided under the Co-operative Societies Act and the Rules framed thereunder. Under s. 47 of the Indian Arbitration Act the arbitration will be governed only by such rules of the Co-operative Societies Act and rules framed thereunder as arc not inconsistent with the provisions of the Indian Arbitration Act. In this connection it is necessary to refer to Rules 115, 116 and 117 of tile Co-operative Societies Rules framed under s. 43 of the Co-operative Societies Act. Ruic 115 states as follows:\n\n\"Any dispute touching the business of a registered society (i) between members or past members of a society or persons claiming through a member or past H member. (iil or between a member or a past member or persons so claiming and the society or its commiuee or\n\nCOOP. FEDERATION v. SUNDER BROS, (Ramaswami, J.) 219\n\nany officer of the society, (iii) between the society or its committee and any officer of the society, and (iv) between two or more registered societies, shall be decided either by the Registrar or by arbitration and shall for that purpose be referred in writing to the Registrar\".\n\nRule 116 provides :\n\n\"The Registrar on receipt of a reference shall either decide the dispute himself, or refer it for decision to an arbitrator or to two joint arbitrators appointed by him or to three arbitra.tors, of whom one shall be nominated by each of the parties to the dispute and the third by the Registrar who shall also appoint one of the arbitrators to act as chairman\".\n\nRule 117 states:\n\n\"In case it is decided to appoint three arbitrators-\n\n(i) The Registrar shall issue a notice calling on each ot the parties to nominate one person as its nominee within 15 days of the receipt of the notice.\n\n(ii) if a party consists of more than one person, such persons shall jointly make only one nomination.\n\n(iii) if more than one person is nominated by a party the Registrar shall appoint either one of the nominees or some other person of his own choice as the nominee E of that party,\n\n(iv) if a party fails to nominate an arbitrator within the appointed time or if its nomination is not valid the Registrar may himself make the nomination,\n\n(v) if one of the arbitrators fails to attend or refuses to work as an arbitrator, the remaining arbitrators may decide the dispute. If two of the arbitrators fail to attend or refuse to work as arbitrators and the claim is not admitted the remaining arbitrator shall refer the case to the Registrar who may authorise him to give an award or appoint one or more arbitrators to proceed with the reference or he may decide the case himself\".\n\nIt has been observed by the High Court that it would be a difficult task for the arbitrator to investigate as to which of the rules made under the Co-operative Societies Act are consistent with and which of those rules are not consistent with the provisions of the Indian Arbitration Act and therefore it was, a fit case in which discretion of the court under s. 3·4 of the Indian Arbitration Act should be exercised in not staying the proceedings of the suit. In our opinion, the reasoning of the High Court has much substance.\n\n220 St:PREME COt:RT REPORTS\n\n(1966] SUPP. B.C.R.\n\nThere is also another reason why there should not be a stay A of the proceedings under s. 34 of the Indian Arbitration Act. The suit was filed in 1954 and, though 12 years have elapsed, nothing has been done in the suit and it will not be in the interest of speedy disposal of the suit between the parties if the proceedings in the suit are further stayed and the parties are referred to arbitration.\n\nThere is also another ground why the proceedings in the suit should not be stayed in the present case. If Rules 115 and l 16 of the Co-operative Societies Rules are applicable then the reference\n\nof the dispute has to be made to the Registrar of the Co-operative\n\nSocieties who may either decide the dispute himself or refer the o dispute to an arbitrator or two joint arbitrators appointed by him or to three arbitrator\" of whom one shall be nominated by each of the parties to the dispute and the third by the Registrar who shall also appoint one of the arbitrators to act as Chairman. It is alleg. ed by the respondent that the Registrar of Co-operative Societies is ex-officio President of the Society \"nd it was with his approval that the agreement in dispute was terminated. It was also pointed out that the Registrar was the chief controlling and supervising officer of the Society under its bye-Jaws. It was submitted for the respondent that the Registrar may not. therefore. act fairly in the matter and it is improper that he should be an arbitrator in the dispute between the parties. In our opinion, there is much validity in this argument. The legal position is that an order of stay of suit under s. 34 of the Indian Arbitration Act will not be granted if it can be shown that there is good i,'Tound for apprcheading that the arbitrator will not act fairly in the matter or that it is for some reason improper that he should arbitrate in the dispute between the parties. It is. of course, the normal duty of the Court to hold the parties to the contract and to make them present their disputes to the forum of their choice but an order to\n\nstay the legal proceedings in a Court of law will not be granted if it is shown that there is good ground for apprehending that the arbitrator will not act fairly in the matter or that it is for some reason improper that he should arbitrate in the dispute. Reference may be made, in this connection, to the decision of the House of Lords in Bristol Corporatio11 v. John Aird & Co.('). This case was concerned with an application for stay of proceedings under s. 4 of the English Arbitration Act which is similar to s. 34 of the Indian Arbitration Act. Upon the settlement of the final account there arose a bona fide dispute of a substantial character between the contractor and tho engineer. who was the arbitrator under the contract. involving a probable conflict of evidence between them. The House of Lords held, affirming the decision of the\n\n- ------·--- (') [1013] A, C. 24t.\n\nCOOP. FEDERATION v. SUNDER BROS. (Ramasuami, J.) 221\n\nA Court of appeal, that the fact that the engineer, without any fault of his own, must necessarily be placed in the position of a Judge and a witness is a sufficient reason why the matter should not be referred in accordance with the contract. At pp. 247-248 of the report Lord Atkinson stated as follows:\n\n\"Whether it be wise or un)¥ise, prudent or the contrary, he has stipulated that a person who is a servant of the person with whom he con tracts shall be the judge to decide upon matters upon which necessarily that arbitrator has himself formed opinions. But though the contractor is bound by that contract, still he has a right to demand that, notwithstanding those pre-formed views of the engineer, that gentleman shall listen to argument and determine the matter submitted to him as fairly as he can as an honest man; and if it be shown in fact that there is any reasonable prospect that he will be so biased as to be likely not to decide fairly upon those matters, then the contractor is allowed to escape from his bargain and to have the matters in dispute tried by one of the ordinary tribunals of the land. But I think he has more than that right. If, without any fault of his own, the engineer has put himself in such a position that it is not fitting or decorous or proper that he should act as arbitrator in any one or more of those disputes, the contractor has the right to appeal to a Court of law and they are entitled to say, in answer to an application to the Court to exercise the discretion which the 4th section of the Arbitration Act vests in them, \"We are not satisfied that there is not some reason for not submitting these questions to the arbitrator\". In the present case the question is, has that taken place\"?\n\nLord Moulton after tracing the growth of the law of arbitration made the following observations in his speech:\n\n\"But, My Lords, it must be remembered that these arbitration clauses must be taken to have been inserted with due regard to the existing Jaw of the land, and the law of the land applicable to them is, as I have said, that it does not prevent the parties coming to the Court, but only gives to the Court the power to refuse its assistance in proper cases. Therefore to say that if we refuse to stay an action we are not carrying out the bargain between the parties does not fairly describe the position. We are carrying out the bargain between the parties, because that bargain to substitute for the Courts of the land a domestic tribunal was a bargain into which was written, by reason of the existing legislation, the condition that it should only be enforced if the Court thought it a proper case for its being so enforced\".\n\nSUPREME COUR1' REPORTS [1966] Sl'l'P. S.C, R,\n\nLord, Parker, .after pointing out that s. 4 of the Arbitration Act A gave a discretionary power to the Court to be exercised after it was satisfied that there was no sufficient reason why the matter should not be referred in accordance with the submission, expressed the fol!O\\Ving viC\\\\S:\n\n\"In making up its mind on this point the Court must of course B give due consideration to the contract between the parties, but it should. I think, always be remembered that the parties may have agreed to the submission precisely because of the discretionary powr vested in the Court under the Arbitration Act They may, very well, for instance, have said to themselves, 'If in any particular case it would be unfair to allow the arbitration we arc agreeing c to proceed we shall have the protection of the Court\".\n\nIt is manifest that the strict principle of sanctity of contract is subject to the discretion of the Court under s. 34 of the Indian Arbitration Act. for there must be read in every such agreement an implied term or condition that it would he enforceable only if the Court, having due regard to the other surrounding circumstances. thinks fit in its discretion to enforce it. It is obvious that a party may he D released from the bargain if he can show that the selected arbitrator is likely to show bias or by sufficient reason to suspect that he will act unfairly or that he has been guilty of continued unreasonable conduct. As we have already stated. the respondent has alleged in the present case that the Registrar, Co-operati1e Societies has approved the termination of the contract of Mana&ing Aency with the plaintiff and the Registrar was the chairman of the defen- E dant-Society. We are accordingly of the opinion that the High Court properly exercised its discretion under s. 34 of the Indian Arbitration Act in not granting a stay of the proceedings in the suit.\n\nIt is well-establishoo that where the discretion vested in the Court under s. 34 of the Indian Arbitration Act has been exercis- F ed by the lower court the appellate court should be slow to interfere with the exercise of that discretion. In dealing with the matter raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary\n\nconclusion. If the discretion has been exercised by the trial court G reasonably and in a judicial manner the fact that the appellate\n\ncourt would have taken a different view may not justify interference with the trial court's exercise of (bcretion. As is often said. it is ordinarily not open to the appel13te court to substitute its own exercise of discretion for that of the trial Judge; but if it appears to the appellate court that in excrcisinf( its discretion the trial H court has acted unreasnnably or capriciously or has ignored relevant facts then it would certainly be open to the appellate court\n\n,; T--\n\nCOOP. FEDERATION v. SUNDER RROS. (Ramaswami, J.) 223\n\nA to interfere with the trial court's exercise of discretion. This principle is well-established; but. as has been observed by Viscount\n\nSimon, L. C., in Charles Osen/on & Co. v. Johnston('):\n\n\"The law as to the reversal by a court of appeal of an order made by a Judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case\".\n\nFor these reasons we hold that the appellan~ has made out no case for our interference with the order of the High Court refusing stay of the proceedings in the suit under s. 34 of the Indian c Arbitration Act. 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{"document_id": "1966_1_224_229_EN", "year": 1966, "text": "WAR PROFITS TAX COMMISSIONER, MADHYA PRADESH,\n\nINDORE\n\nMIS. BINODRAM BALCllAND OF UJJAIN\n\nA pri/ 20, 1966\n\n(K. N. WA~CllOO. J. C. SHAH ANDS. M. SIKRI, JJ.J\n\nGwalior War Prifits Tax Ordinance, Samvat 2001, as amended by Amendment Ordinances of Samvat 2002 and Samvat 2004, First Schedule, r. 3(1) and (2) aHd Explanation-Explaruition, if retroSl)eC C tive-If applies tor. 3(1).\n\nThe assessec was the managing agent of a Textile Mill in Ujjain. In 1944, the Gwalior State promulgated the Gwalior War Profits Tax Ordinance. In !!HG, by the Gwalior War Profits Tax (Amendment) Ordinance, an Explanation was added after r. 3(2) of the First Schedule to the Ordinance of 1944. In 1947, another Amendment Or dinance was promulgated whereby a comma was inserted in the Explanation. In July 1944. the assessee received about R<;. 11 lacs as dividend on its shares in the Textile Miil. The War Profits Tax Officer included the amount in the assessec's taxable income, and the order was upheld by the Appt'Uate Assistant Commissioner and the Commissioner. On the question: whether the dividend income was chargeable to war profits tax, the High Court held, on a reference, that the Explanation applied and that under the Explanation the dividend income was not liable to be included in the asscssee's taxable income.\n\nIn appeal to this Court, it was contended that the Explanation was not applicable, because, (!) it was not retrospective: and (ii) it was only an Explanation to r. 3(2) and not to r. 3(1) which was the rule applicoble to the assessee.\n\nHELD: The Explanation applies to the computation of the profits of the chargeable accounting period, because: (i) the Ordinance\n\nof 1947 expressly assumes that the Explanation was in existence F from the date when the War Profits Tax Ordinance came into force in 1944; and (ii) on the language of the Explanation it was meant to be an Explanation not only tor. 3(2) but also tor. 3(1). By the words \"in r. 3(2) the following shall be added\", in the amending Ordinance of 1946. all that was meant was that the Explanation should be added below r. 3(21. (228 H-229 E]\n\nCivIL APPELLATE JuR1so1cr10:-;: Civil Appeal No. 225 of 1965.\n\nAppeal by special leave from Ihc judgment and order dated September 6, 1962 of the Madhya Pradesh High Court in Misc.\n\nCivil Case No. 108 of 1958.\n\nI. N. Shroff, for the appellant.\n\nS. T. Desai, S. N. A11dley, Ramesl11rnr Nath, P. L. Vohra, and Mahi11der Narain, for the respondent.\n\nCOMMR, WAR PROFITS TAX v. MjS BINODRAM (Sikri, J.) 225\n\nA The Judgment of the Court was dilevered by Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Madhya Pradesh in a reference made to it under s. 46 of the Gwalior War Profits Tax Ordinance, Samvat 2001-hereinafter called the Ordinance. Three questions B were referred to the High Court by the War Profits Tax Commis- . sioner, but we are only concerned with question No. 1, which reads as follows: -\n\n\"Whether the dividend income of Rs. 11,09,332/- received from the Binod Mills was chargeable under the War Profits Tax?\" When the reference was first heard by the High Court three contentions were raised by M/ s Binodram Balchand of Ujjain, respondents before us, hereinafter referred to as the assessees.\n\nThey were:\n\n\"(!) The assessees did not deal in shares and their holdings in the Binod Mills Limited were purely in the nature of investments, having no connections with their business as defined in Section 2(5) read with Rule 1 of Schedule I of the Gwalior War Profits Tax Ordinance.\n\nThe business of the secretaries, treasurers and agents of the Binod Mills Limited, which was carried on by them did not require any holding of the shares ofthe company and was not dependent on their investment in the said company.\n\n(2) The dividend income accrued or arose from the profits of the Binod Mills Limited, and as the Ordinance applied to the business carried on by this company, the dividends were excluded under the explanation to Rule 3(]) of Schedule l.\n\n(3) The dividend income should be considered as income of the full accounting period, i.e., from Diwali of 1943 to Diwali of 1944 and should be apportioned on that basis\".\n\nThe High Court by its judgment dated April 19, 1957, accepted the first contention of the assessees and accordingly answered the question in their favour. lt did not deal with contentions Nos. 2 and 3. The Commissioner appealed to this Court and this Court by its judgment dated December 20, 1961, set aside the judgment of the High Court and answered the first con tention in relation to question No. I against the assessees and remanded the case to the High Court for the consideration of the other two contentions with reference to that question. The High Court on remand accepted the second contention of the assessees and answered question No. 1. set out above, in favour of the assessees. The Commissioner having obtained special leave, the appeal is now before us for disposal.\n\n22G SUPREME conn l\\EPORTS (1966] sut>P. s.c.n.\n\nA few facts may be given in order to appreciate the point A that has been argued before us. The asscssees were, at the relevant time, the Managing Agents of the Binod Mills Ltd., Ujjain, which was a private limited company carrying on the business of manufacturing and sdling textile goods in 1944. The Ruic! of the Gwalior State promulgated !he Gwalior War Profits Tax Ordinance. Samvat 2001, for the purpose of imposing tax on B excess profits arising out of certain businesses. The Ordinance came into force on July I. 1944. and applied originally to the acounting period falling within the period commencing on July I,\n\n1944. and ending on June 30, 1945. By virtue of a notification the period was extended to June 30. 1946.\n\nThe assessees carried on the Managing Agency business during the aforesaid period in Gwalior State and being liable to be assessed to war profits submitted a return for the period commencing from July I. 1944. to October 16. 1944. It appears that Rs.\n\nI 1.09,332/- was received by the asscssccs on July 5. 1944, on account of dividend on shares of the llinod Mills for the year\n\n1943. The assessees inter a/ia contended before the War Profits Tax Officer that this sum was not liable to be charged. The War Profits Tax Officer, however, by order dated July 9, 1951, included this sum of Rs. l I.09.J32/- in the taxable income and his view was upheld in appeal by the Appellate Assistant Commissioner and the Commissioner. As stated above, the Commissioner, at the instance of the assessces, referred three questions, including the one with which we arc concerned, to the High Court.\n\nIt appears that before the High Court the learned counsel for the Commissioner did not seriously dispute the contention of the assessccs that the dividend income which the assessees had received was exempted by the Explanation to r. 3 of Schedule I\n\nof the Ordinance. The ruk as it existed originally was as follows: - F\n\n\"3( I) Income received from investments shall be included in the prolits of a business liable to the War Profits Tax. unless it is proved to satisfaction of the War Profits Tax Officer that the investments have no connection whatever with. the business.\n\n(2l In the case of business which consists wholly or mainly in the dealing in or handling of investments, income received from investments shall be deemed to be profits of that businc'5. and in the case of a business, a specific part only of which consists in dealing in investments. the income received from investments held for the purposes of that part of the business shall be deemed to be profits of that part of the business\".\n\n,,..\n\n-~-\n\nCfJMMR. WAR PROFITS TAX V. M/S. BINODRAM (Sikri, J.) 227\n\nBy s. 2 of the Gwalior War Profits Tax (Amendment) Ordinance, Samvat 2002-hercinafter referred to as Ordinance 2002, r. 3 of the First Schedule to the Ordinance was amended as follows:-\n\n\"In rule 3(2) of the First Schedule to Ordinance the following shall be added, namely:-\n\nExplanation-\"The income from investments to be included in the profits of the business under the provisions of this rule shall be computed exclusive of all income received by way of dividends or distribution of profits from a company carrying on a business to the whole of which the Section of the Ordinance imposing the War Profits Tax applies''.\n\nThis Ordinance was promulgated on February 28, 1946. Another Ordinance called the Gwalior War Profits Tax (Amendment) Ordinance, Samvat 2004-hereinafter referred to as Ordinance 2004-was promulgated on September 6, 1947. This Ordinance amended the Explanation to sub-rule (2) of rule 3 of Schedule 1 as follows: -\n\n\"In the explanation of sub-rule (2) of Rule 3 of Schedule I of the Gwalior War Profits Tax Ordinance.\n\nSamvat 2001 a comma is added after the words \"from a company carrying on a business\" and before the words \"to the whole of which\" and shall be always deemed to be there from the date from which the said Ordinance came into force\".\n\nThe High Court felt no difficulty in holding that the explanation applied, and that on its plain terms the dividend income which the assessees received from the profits of Binod Mills Ltd. was not liable to be included in the taxable income. The High Court observed: -\n\n\"The language of the explanation is very plain, and it means that if income is received by way of dividends or profits from a company carrying on a business, to the whole of which the section of the Ordinance imposing the War Profits Tax applies, then the income has to be excluded in the assessment to War Profits Tax of the assessee receiving that mcome.\n\nThe object of the explanation is clearly to avoid double taxation. Here it is not disputed that the dividend income which the assessee received was from the profits of the Binod Mills Limited and the Mills were subject to the burden of the War Profits Tax under the Ordinance. That being so, the explanation in terms applies to the case, and the assessee is entitled to claim that the dividend income of Rs. 11,09,332/- received from Binod Mills could not\n\n228 Sl\"PREME COURT I\\EPOI\\TS\n\n(1966) SUPP, s.c.n..\n\nbe included in the computation of its profits for the purposes of War Profits Tax and was consequently not chargeable under the War Profits Tax Ordinance.\n\nLearned Advocate-General appearing for the State did not dispute this position\".\n\nMr. Shroff. the learned counsel for the Commissioner, contends, B first, that the explanation was not in existence at the relevant .-- time, and, therefore, cannot be taken into consideration; secondly, that the explanation is an explanation to r. 3(2) and not to r. 3(1) and, therefore, cannot be used to explain r. :1(1).\n\nMr.\n\nShroff complains that the High Court was wrong in thinking that the explanation formed part of Ordinance 2001, as it was originally promulgated. The High Court seems to have been under this c impression because in the order refusing leave to appeal to this Court the High Court observed:-\n\n\"There was no omission at all on our part to con sider the question whether the explanation was prospective or not. Indeed, this question was never raised by the learned Advocate-General. appearing for the Department and it was rightly not raised as the Explanation was not added subsequent lo the promulgation of the Ordinance and the very basis of the assessment of the income of the asses.see was that rule 3 of Schedule I of the Ordinance together with the Explanation applied to the income received by the assessee during the period from Isl July 1944 to 16th October 1944\".\n\nIt seems that Ordinance 2002 and Ordinance 2004 were not placed before the High Court and for this reason it assumed that the explanation was not added subsequent to the promulgation of the Ordinance.\n\nBut even if it was added subsequently. in our opinion, the explanation applies to the computation of the profits of the F chargeable accounting period July I. 1944 to October 16. 1944.\n\nIf we read Ordinance 2002 and Ordinance 2004 together the legislative intention to make the explanation retrospective be comes clear. Apart from Ordinance\n\n2004. it would have been very arguable that the explanation inserted by Ordinance 2002 was retrospective because it dealt with the computation of profits and would apply to all computation of profits made by the Taxing G authorities after February 28. 1946. But we need not go into this question because Ordinance 2004 expressly assumes that the explanation was in existence from the date when the Ordinance came into force and no other meaning can be given to s. 2 of Ordinance 2004 because by deeming that the comma shall be deemed to be there from the date from which the Ordinance H came into force it expressly assumes that the explanation was also in force from that date. Accordingly we are not inclined to\n\nCOMMR. WAR PROFITS TAX V. Mjs. :BINODRAM (Si/cri, J.) 229\n\nA accept the first contention of Mr. Shroff and we must hold that the explanation applies to the computation of profits of the chargeable accounting period July I, 1944 to October 16, 1944.\n\nRegarding the second contention, Mr. Shroff says that Ordinance 2002 expressly provides that the explanation shall be added in r. 3(2) of the First Schedule to the Ordinance. He further says that this explanation is referred in Ordinance 2004 as \"explanation of sub-rule (2) of rule 3 of Schedule 1\". There is no doubt that Ordinance 2002 did purport to add this explanation to r. 3(2) but it seems to us that if we look at the language of the explanation it was meant to be an explanation not only to r. 3(2) but to r. 3(1) also. First, the words \"the income from investments to be included in the profits of the business under the provisions of this rule\" are comprehensive and include income from investments both under r. 3(1) and r. 3(2). Secondly, there is no reason why any distinction should have been made between investments mentioned in r. 3(1) and investments mentioned in r. 3(2). Rule 3(1) is general and deals with all investments from profits of all businesses and would include investments mentioned in r. 3(2). Rule 3(2) deals with investments of a certain business, i.e., business which consists wholly or mainly in the dealing in or holding of investments. We have not been able to appreciate why, if Mr. Shroff is right, was it necessary to distinguish between income from investments mentioned in r. 3(1) and income from investments mentioned in r. 3(2). At any rate, the language of the explanation is quite clear and it seems to us that by the words \"in rule 3(2) of the First Schedule to the Ordinance, the following shall be added\" what was really meant was to add the explanation below r. 3(2).\n\nIn the result we agree with the High Court that the answer tp the question referred should be in the negative. The appeal accordingly fails and is dismissed with costs.\n\nAppeal dismissed.", "total_entities": 22, "entities": [{"text": "WAR PROFITS TAX COMMISSIONER, MADHYA PRADESH,\n\nINDORE", "label": "PETITIONER", "start_char": 0, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "WAR PROFITS TAX COMMISSIONER, MADHYA PRADESH, INDORE", "offset_not_found": false}}, {"text": "MIS. BINODRAM BALCllAND OF UJJAIN", "label": "RESPONDENT", "start_char": 55, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "M/S. BINODRAM BALCHAND OF UJJAIN", "offset_not_found": false}}, {"text": "C. SHAH ANDS. M. SIKRI, JJ", "label": "JUDGE", "start_char": 127, "end_char": 153, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "Gwalior War Prifits Tax Ordinance", "label": "STATUTE", "start_char": 157, "end_char": 190, "source": "regex", "metadata": {}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 272, "end_char": 286, "source": "regex", "metadata": {"linked_statute_text": "Gwalior War Prifits Tax Ordinance", "statute": "Gwalior War Prifits Tax Ordinance"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 630, "end_char": 644, "source": "regex", "metadata": {"linked_statute_text": "Gwalior War Prifits Tax Ordinance", "statute": "Gwalior War Prifits Tax Ordinance"}}, {"text": "s. 46", "label": "PROVISION", "start_char": 2698, "end_char": 2703, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(5)", "label": "PROVISION", "start_char": 3462, "end_char": 3474, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I of the Gwalior War Profits Tax Ordinance", "label": "STATUTE", "start_char": 3495, "end_char": 3546, "source": "regex", "metadata": {}}, {"text": "Gwalior War Profits Tax Ordinance", "label": "STATUTE", "start_char": 5372, "end_char": 5405, "source": "regex", "metadata": {}}, {"text": "Schedule I\n\nof the Ordinance", "label": "STATUTE", "start_char": 6878, "end_char": 6906, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 7723, "end_char": 7727, "source": "regex", "metadata": {"linked_statute_text": "Schedule I\n\nof the Ordinance", "statute": "Schedule I\n\nof the Ordinance"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 7849, "end_char": 7863, "source": "regex", "metadata": {"linked_statute_text": "Schedule I\n\nof the Ordinance", "statute": "Schedule I\n\nof the Ordinance"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 7928, "end_char": 7942, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule 1", "label": "PROVISION", "start_char": 8634, "end_char": 8644, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I of the Gwalior War Profits Tax Ordinance", "label": "STATUTE", "start_char": 8709, "end_char": 8760, "source": "regex", "metadata": {}}, {"text": "War Profits Tax and was consequently not chargeable under the War Profits Tax Ordinance", "label": "STATUTE", "start_char": 10198, "end_char": 10285, "source": "regex", "metadata": {}}, {"text": "Schedule I of the Ordinance", "label": "STATUTE", "start_char": 11405, "end_char": 11432, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 12576, "end_char": 12580, "source": "regex", "metadata": {"linked_statute_text": "But we need not go into this question because Ordinance 2004", "statute": "But we need not go into this question because Ordinance 2004"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 13222, "end_char": 13236, "source": "regex", "metadata": {"linked_statute_text": "Shroff says that Ordinance 2002", "statute": "Shroff says that Ordinance 2002"}}, {"text": "Schedule 1", "label": "PROVISION", "start_char": 13368, "end_char": 13378, "source": "regex", "metadata": {"linked_statute_text": "He further says that this explanation is referred in Ordinance 2004", "statute": "He further says that this explanation is referred in Ordinance 2004"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 14575, "end_char": 14589, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_1_22_26_EN", "year": 1966, "text": "DOLAI MOLLIKO & ORS.\n\nKRUSHNA CHANDRA PATNAIK & ORS.\n\nMarch 23, 1966\n\nIK. N. WANCllOO, J. c. SHAH A~O s. M. S!KRI, JJ.I\n\nCode oj Civil Procedure, 1908 (Act 5 of 1908), O.XXII r.3-0m1ssio1t to bring on record all legal representatives-Effect.\n\nOn the death of one of the plaint:ffs-appcllants in an appeal pending before the Subordinate Judge, an application was made for bringing on record his heirs and these heirs were two, viz., his widow and a major son. No objection was made to this application and conse quently the \\vido\\v and the major son v.:cre substituted on record as heirs. Later, when the respondent's further appeal was pending in the High Court. it was di9Covered that the deceased had left some other heirs besides the two who had been brought on record as his heirs. Consequently the respondents raised an objection that as some of the heirs of the deceased had been left out and there could be no question of want of knowledge of the existence of these heirs on the part of the \"dow and the major son who had applied for being brought on rceord, the appeal abated. The High Court upheld the objection. In appeal, this Court.\n\nHELD: The est<:te of the deceased was full;· reprrspnte<l b.v the heirs who had been brought on the record and these heirs represented the absent heirs also. who would be equally bound by the result\n\n_I\\\n\nEven where the plaintiff or the appellant has died and all his E heirs have not been brought on the record because of oversight or because of some doubt as to who are his heirs. the suit or the appeal, as the case may be, does not abate and the heirs brought on the record fully represent the estate unless there is fraud or collusion or there are other circumstances which indicate that there has not been a fair or real trial or that against the absent heir there was a special case which was not and could not be tried in the proceedings f24 F-25B].\n\nFurther, in this case, the respondents themselves did not object that some heirs of the deceased had been left nut. f25 C-Dl.\n\nCase law referred to.\n\nOV!L APPELLATE JURJSDICTIO'i: Civil Appeal No. 836 of 1963.\n\nAppeal by special leave from the judgment and decree dated January 4. 1962 of the Orissa High Court in S.A. No. 90 of 1960.\n\nR. Gopa/akrislman, for the appellants.\n\nB. Partl1asaratlzy, S. N. Prasad. J. B. Dadachanji, 0. C.\n\nH Matlz11r and Ral'inder Narain, for respondent No. I.\n\n' ..\n\nB ).\n\nDOLA! ll!OLLIKO v. K. o. PATNAIK (Wanchoo, J.) 23\n\nThe Judgment of the Court was delivered by Wanchoo, J. This is an appeal by special leave against the judgment of the Orissa High Court. The brief facts necessary for present purposes are these. A suit was brought by eleven plaintiffs\n\n(who are appellants before us) including Dolai Molliko for a decla ration that the plaintiffs were tenants with occupancy rights in the lands in dispute. The suit was resisted by the defendants who are now respondents. The Munsif dismissed the suit. Thereupon there was an appeal by the plaintiffs. During the pendency of that appeal, Dolai Molliko, appellant, died in March 1958. An application was made within time for bringing on record his heirs, and these heirs were two, namely, the widow and a major son of the deceased. No objection was made to this application and consequently the widow and the son of the deceased were substituted on record as heirs.\n\nThe Subordinate Judge allowed the appeal and decreed the suit and gave the declaration prayed for by the plaintiffs. Then followed a second appeal to the High Court by the defendants-respondents.\n\nWhen the appeal was pending in the High Court, it was discovered that Dolai had left three other heirs, namely, a minor son, a married daughter and an unmarried daughter besides the widow and the major son who had been brought on reoord as his heirs. Consequently an objection was raised in the High Court on behalf of the present respondents that as ail the heirs of the deceased Dolai had not been brought on record, the appeal before the Subordinate Judge had abated in toto. The High Court accepted this contention and held that as three heirs had been left out and as there could be no question of want of knowledge of the existence of these heirs on the part of the widow and the major son who had applied for being brought on record, the appeal abated, as it was not disputed that in the present case the appeal would abate in toto. Jn consequence the appeal before the High Court was allowed holding that the appeal before the Subordinate Judge had abated and the judgment of the Munsif dismissing the suit was restored. Thereupon the appellants obtained special neave from this Court; and that is how the matter has come before us.\n\nThe only question therefore which falls for consideration is whether the estate of Dolai deceased appellant was sufficiently represented before the Subordinate Judge by the widow and the major son. The question whether in similar circumstainces an appeal abates came up for consideration before this Court in Daya Ram v. Shyam Sundari('). In that case it was held that \"where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legid representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, the impleaded legal representatives sufficiently represent the estate of the deceased and a decision obtained with them bn record will bind not merely those impleaded but the entire estate including those not brought\n\n(') (1965] lS.C.R. 231.\n\nL/S4SCI-4\n\nSUPRJ:ME COURT REPORTS\n\n[1966] BUPP. s.c.R.\n\non record. In a case where the person brought on record is a legal representative it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating.\"\n\nThe matter was again considered by this Court in N. K. Mohd.\n\nSulaiman Sahib v. N. C. Mohd. Ismail Saheb('). That was a mort- B gage suit, though the facts were slightly different from Daya Ram's case('). In Daya Ram's case ('), the sole respondent had died and an application was made in time for bringing his heirs on the record but two heirs were left out in this application. The remaining heirs were brought on record and a preliminary objection was rdised that as all the heirs had not been brought on record, the appeal had abated, and it was this objection which this Court rejected in Daya Ram'.1 case('). In Mohd. Sulaiman's ca1e('l, however, the mortgagor had died before the suit was brought by the mortgagee against some of the heirs of the mortgagor but he left\n\nout two minor sons. The question then arose whether the two minor sons who had been left out from the array of defendants would also be bound by the decree passed in that suit. This Court followed the judgment in Daya Ram's case(') and it was held that D if the plaintiff had proceeded bona fide and after due enquiry and under a belief that the persons who were sued were the only legai representatives, the whole estate would be bound including those heirs who were not arrayed as defendants. This Court further pointed out that \"this rule will of course not apply to cases where there has been fraud or collusion between the creditor and the heir impleaded or where there are other circumstances which indicate B that there has not been a fair or real trial, or that the absent heir had a special defence which was not and could not be tried in the earlier proceedings.\" It has been contended on behalf of the appellants that the principle of these cases applies to the present case and the fact that three of the heirs were left out would make no difference as the entire estate of Dolai, deceased, must be held to be represented by the widow and the major son who were brought on the record. It will be noticed that there is one difference between the present case and the two cases on which reliance has been placed on behalf of\n\nthe appellants. This is not a case where a plaintiff or an appellant applies for bringing the heirs of the deceased defendant or respondent on the record; this is a case where one of the appellants died and his heirs have to be brought on record. In such a case there is\n\nno question of any diligent or bona fide enquiry for the deceased appellant's heirs must be known to the heirs who applied for being brought on the record. Even so we are of opinion that unless there is fraud or collusion or there are other circumstanOes which indicate that there has not been a fair or real trial or that against the H\n\naent heir there wa1 a special case which was not and could not\n\n!') [19661 l S.O.R. 93;. !'l [1965] r s.c.R. 231.\n\n·~\n\n' ...\n\nDOLAI MOLLIKO v. K. o. PATNAIK (Wanchoo, J.) 211\n\nbe tried in the proceeding, there is no reason why the heirs who have applied for being brought on record should not be eld to represent the entire estate including the interests of the herrs not brought on the record. This is not to say that where heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out.\n\nBut if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be no reason for holding that the entire estate of the deceased is not represented unless circumstances like fraud or collusion to which we have referred above exist.\n\nIn the present case there is no question of any fraud or collusion; nor is there anything to show that there had not been a fair or real trial, nor can it be said that against the absent heir there was a special case which was not and could not be tried in the proceeding in his absence. It may also be noticed that the respondents themselves did not object in the court of the Subordinate Judge that some of the heirs of deceased Dolai had been left out and the case proceeded there. as if the estate of Dolali deceased was represented in full by the heirs brought on record. It was only in the High Court that it was discovered that Dolai had left three other heirs who had not been brought on the record. In the circumstances we are of opinion thalt the estate of Dolai was fully represented by the heirs who had been brought on the record in the Subordinate Judge's court and that these heirs represented the absent heirs also who would be equally bound by the result, and there is no reason to hold that the appel before the Subordinate Judge had abated on that ground.\n\nWe may in this connection refer to certain cases where a similar view has been taken. In Abdul Rahman v. Shahab-ud-Din('), the appellant had died and only his sons were brought on the record and not his widow and daughters, though the appellant was a Mohammadan. It was held that as the heirs who had applied for F being brought on record as heirs and legal representatives of the deceased appe.Uant bona fide believed that they were the sole heirs and legal representatives of the deceaed. the appeal did not abate notwithstanding that in Mohammadan Jaw other persons would be co-heirs of the deceased.\n\nIn Mohd. Zafaryab Khan v. Abdul Razaq('), it was held that \"when by an order which has become final, a certain person's G name has been brought on to the record of an appeal as the legal\n\nrepresentative of the deceased appellant, it is not open to the respondent to urge that the appeal has abated because some other heirs have been left out.\"\n\nIn Ram Charan v. Bansidhar('), the sole appellant had died H leaving two daughters. One of his daughters was brought on record\n\n(') I.L.R. (1920) I Lah. 481.\n\nL'85SCI-4 (a) (') I.L.R (1928) I All. 857.\n\n(1) I.L.R. (1942) All. 671.\n\n26 BUPRBllE COURT llEPOBTS\n\n(1966) BUPP. 8.0.11.\n\nas his legal representative but not the other. It was held that the A substitution of one of the daughters as legal representative of the deceased must be deemed to have been for the benefit of the entire inheritance which came into being on his death, and the entire estate was represented by her and there was no abatement of any part of it.\n\nIn Babuie Shanti Devi v. Khodai Prarad Singh('), on the death of the plaintiff in a suit to enforce a mortgage his sons were brought on record but not his widow who had herself filed a petition stating that she was not in possession of the properties of the deceased plaintiff nor did she desire any interest in the family properties, it was held that the failure to bring the widow on the record was a mere technical defect and the suit did not abate.\n\nc In Jshwar/al Laxmichand Patel v. Kuber Mohan Lawar('), on the death of the appellant, his son was brought on record as heir on his application and the widow who also was an heir was left out, it was held that it was proper that both the son and the widow should have applied for being brought on the record but that the appeal did not abate merely because the widow had not applied as the estate was fully represented by the son.\n\nWe are of opinion that these cases have been correctly decided and even where the phrintiff or the appellant has died and all his heirs have not been brought on the record because of oversight or because of some doubt as to who are his heirs, the suit or the appeal, as the case may be. does not abate and the heirs brought on the record fully represent the estate unless there are circum E 5tances like fraud or collusion to which we have already referred above.\n\n. I ~\n\nThe appeal is therefore allowed and the judgment of the High Court set aside. The case will now go back to the High Court for - decision on the merits after bringing the heirs left out earlier on the record. The costs of this Court will abide by the final result.\n\n...\n\nAppeal allowed.\n\n\\ 1) A.I.R. (19i2) Pntna 340 (') A.LR. (1843) Dom. m.", "total_entities": 4, "entities": [{"text": "DOLAI MOLLIKO & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "DOLAI MOLLIKO & ORS", "offset_not_found": false}}, {"text": "KRUSHNA CHANDRA PATNAIK & ORS", "label": "RESPONDENT", "start_char": 22, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "KRUSHNA CHANDRA PATNAIK & ORS", "offset_not_found": false}}, {"text": "c. SHAH", "label": "JUDGE", "start_char": 90, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "J.C. SHAH", "offset_not_found": false}}, {"text": "S4S", "label": "PROVISION", "start_char": 5569, "end_char": 5572, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_1_230_238_EN", "year": 1966, "text": "KALARIMADATlllL UNNI\n\nSTATE OF KERALA\n\nApril 22, 1966\n\n(M. HIDAYATULI.All A~D V. RAMASWAMI, JJ.J\n\nIndian Penal Code, ss. 300 and 34-Ingredients of the four clauses of the section-Tests-Victim dying of asphvxiation, his mouth and nose having been ph1aged--Offence whether murder or cu/.pable\n\nhomicide-\"Injury sufficient in the ordinary course of nature tq caus., death\" in terms of cl. 3 proof of-Common intention of acCl/l; fd in a case covered by cl. 3.\n\nThe appeUants were convicted of murder under s. 302 read with s. 34 I.P.C. on the allegation that they had laid their victim in a drain after closing his mouth with adhesive tape and plugging his nose with cotton wool soaked in chloroform. as a result of whilh death was caused. They apptaled to this Court by special leave. It was contended on their behalf: (i) that their offence did not amount to murder but only to culpable homicide under the second part of s. 304, (ii) that it could not be inferred from the mere fact of death that the injury caused by the appellants was sufficient in the ordinary course of nature to cause death; this had to be proved bv further evidence and (iii) that th<' ingredients of s. 34 I.P.C. were not satisfied.\n\nHELD : (i) What distinguishes the ofTenccs of murder and culpable homicide is the prPsence of a special 1nens rea \\\\'hich consists of four mental attitudes in the presence of any of which the les9er offence becomes the greater. These four mental attitudes arc stated in the four clauses of s. 300 I.P.C. (235 BJ\n\n(ii) The first clause of s. 300 says that culpable homicide is murder if the act by which death is caused is done with the intention of causing death. An intention to kill a person brings the matter so clearly within the general principle of mens rea as to cause no difficulty. Once the intention to kill is proved. the offence is murder unless one of the exceptions applies, in \\Vhich case the offence is reduced to culpable homicid not amounting to murder. On the facts of the present case an intention to cause death \\Vas not proved against the appellants and the clause thereforl' did not apply. [235 CJ\n\n(iii) The second clause of the section deals with acL< done with. thP. intention of causing surh bodily injury as the offt'nder knows to ,\n\nbe likely to cause tho dl'aLh of the pcr!l<m to whom harm is caused.\n\nThe mental attitude here is two-fold. There is first the intention to G\n\ncause bodily harm and next there is the subjective knowledge that death will be the likely consequence. EnRlish Common Law made A no clear distinction bct\\veen intention and recklessness but in our\n\nlaw tne loresight of the death must be present. Thn mental attitude is thus made of t\\vo elements-(a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death. The present case could not fall under this clause either.\n\nH bccau~. it could not be said that the appellants who only wanted to make their victim uncons<'ious had the subjective knowlcc of the fatal consequences of the bodily harm they were causing. [235 Fl\n\nUNNI V.\n\nSTATE 231\n\n(iv) The appellants were however guilty of murder under the third clause of s. 300. [237 G-H]\n\nThe third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be intlicted is sufficient in the ordinary course of nature to cause death. In this clause _the result of the intentionally caused injury must be viewed objectively, If the injury that the offender intends causing and does cause is sufficient to cause death in the ord; nary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequen\n\nces or not. [236 BJ\n\nFor the application of this clause it must be first established that an injury is caused, next it must be established object; vely what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied.\n\nThen it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. [236 C-D]\n\nVirsa Singh v. State of Punjab [19581 S.C.R. 1495, referred to.\n\nThe bodily injury caused by the appellants was deliberate and preplanned and the subjective test involved in the clause was therefore satisfied. The other test namely whether the injury was suffi cient in the ordinary course of nature to cause death w&s also satisfied in the case as in the circumstances it would have been a n1iracle if the victim had escaped. Death of the victim took place as a direct result of the acts of his assailants. [236 EF]\n\n(v) The fourth clause of s. 300 comprehends generally, the com mission of imminently dangerou8 acts which must in all probability cause death. What the appellants did may well be said to satisfy the requirements of this clause also, although it is ordinarily applicable to cases in which there is no intention to kill anybody in parti cular. (Obiter). [238 Al\n\n(vi) The sufficiency of an injury to cause death in the ordinary course of nature in the terms of cl. 3 need not in every case be required to be proved by separate evidence in that regard. Where the victim is either helpless or rendered helpless and the offender does some act which leads to death in the ordinary course and death takes place from the act of the offender and nothing else it is hard ly necessary to prove more than the acts themselves and the causal connection between the acts and the end result. The sufficiency of the injury in the present case was objectively established by the nature and quality of the acts taken with the consequence which was intimately related to the acts. There was no need to establish more than this in the case. [237 B-G]\n\nAnda v . .51tate of Raiasthan, A.I.R. 1965 s.c. 148 referred to.\n\n(vii) All the acts were done after deliberation by the appellants.\n\nThey were of a type which required more than one person to perpetrate. That there was a common intention admits of no doubt and as clause 3 of s. 300 views the consequence of the act objectively all those who shared the common intention of causing the bodlly injury which was sufficient to cause death in the ordinary course of nature must be held responsible for the resulting offence. [238 CJ\n\nL/S5SCI- 17\n\nSt:PRliMB OOURT llBPOJITil [1966) iUPP. li.0.1\\.\n\nCRIMINAL\n\nAPPELLATB\n\nJURISDICTION: Criminal Ap~ A Nos. 102 & 103 of 1965.\n\nAppeals by special leave from the judgmenli and orders dated October 12, 1964 of the Kerala High Court in Criminal Appeal No. 80 of 1964, and Criminal Appeal No. 70 and Referred Trial No. 13 of 1964 respectively.\n\nJai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellant (in Cr. A. No. 102/65).\n\nHarbans Singh, for the appellant (in Cr. A. No. 103/65).\n\nA. S. R. Chari, V. Narayana Menon and M. R. K. Pillai, for the respondent (in both the appeals).\n\nThe Judgment of the Court was delivered by\n\nHidayatullah, J. This judgment will also govern the dls; x>sal\n\nof Criminal Appeal No. 102 of 1965 (Rajwani Singh v.\n\nThe State of Kerala). The appellants in these two appeals have been convicted under ss. 302/34, 364, 392. 394 and 447 of the Indian Penal Code. Unni (appellant in this appeal) has been D sentenced to death and Rajwani Singh (appellant in the other appeal) has been sentenced to imprisonment for life. No separate sentences under the other sections have been imposed on Unni but Rajwani Singh has been sentenced to four years' rigorous imprisonment under ss. 392 and 394. Indian Penal Code, with a direction that the sentences shall run concurrently with the sentence of imprisonment for life. The High Court of Kerala has E dismissed their appeals and confirmed the sentence of death on Unni. They now appeal by special leave of this Court.\n\nThese appellants were tried with three others, of whom two were acquitted. One Taylor was also convicted of the same offences and was sentenced in the aggregate to imprisonment for life. He has not appealed to this Court. We are not concerned with them. The case relates to the death of one Lt. Commandec Menianha of the Naval Base. l.N.S. Vendurthy, Willingdon Island, Cochin Harbour, on the night of March 30, 1963. Unni was attached as a rating to this Naval Base and at the time of\n\nthe offence was on leave. Taylor, who has not appealed was an ex-sailor and Rajwani Singh was attached to I.N.S. Vikrant. The case of the prosecution was that these persons conspired together G to burgle the safe of the Base Supply Office on the eve of the pay-day, when a large sum of money was usually kept there for distribution on the pay-day. They collected varioll! articles such as a Naval Officer's dress. a bottle of chloroform, a hacksaw with spare blades, adhesive plaster, cotton wool and ropes. On the night in question they decoyed the Lt. Commander from his 8 house on the pretext that he was wanted at the Naval Base, and in a lonely place caught bold of him. They covered hill moutli\n\n][.\n\nUNNI ~. STATE (Hidayatul/, ah, J.) ~33\n\nwith the adhesive plaster and tied a handkerchief over the plaster and plugged his nostrils with cotton wool soaked in chloroform.\n\nThey tied his hands and legs with rope and _deposited hnn_ m a shallow drain with his own shirt put under his head as a pillow.\n\nThey then went up to the sentry, who was induced to part with his rifle to one of the accused who had dressed himself as an officer, and attacked him. The sentry would have received the same treatment as his Lt. Commander but he raised a hue and cry and attracted the attention of the watchman. Fearing detection the assailants released the sentry and took to their heels. The sentry after escaping informed the Officer-on-duty at the Base and stated that he had recognised Rajwant Singh as one of his assailants. Next morning the dead body of the Lt. Commander was discovered in the drain where he had been left by the assailants.\n\nInvestigation followed and five persons were placed on trial before the Session Judge, Ernakulam Division, who convicted three and sentenced them as stated above and acquitted the other two. The appeals of these persons before the High Court failed.\n\nIn these appeals the complicity of the appellants in the offence is not challenged but it is argued that the evidence for the prosecution does not establish the offence of murder but of causing grievous hurt or of culpable homicide not amounting to murder.\n\nIt is also contended that s. 34 of the Indian Penal Code could not be used against any of the accused. Unni has also contended that the sentence of death was not proper as the case against him was indistinguishable from that of the other two. We shall deal with these arguments. Our attention has been drawn to the inquest and postmortem reports to establish what was actually done to the Lt. Commander.\n\nFrom these, it is established that the legs of the victim were tied with rope and his arms were tied behind his back. A large adhesive plaster was stuck over his mouth and completely sealed it.\n\nA handkerchief was next tied firmly over the adhesive plaster to secure it in position. The nostrils were plugged with cotton soaked in chloroform. Counsel for the appellants submit that all this shows that the assailants did not intend to kill the Lt. Commander but to render him unconscious. It is admitted that the closing of the mouth with the adhesive plaster and the handkerchief was complete and that it must have been impossible for the Lt. Com mander to breathe through his mouth. The description, however, shows that the nostrils were also plugged with cotton wool soaked in chloroform. This was clearly stated in the inquest report and also in the postmortem report and was established not only by the witnesses proving the inquest report but also by the doctor who performed the autopsy. In addition the prosecution has exhibited and proved numerous photographs of the dead body from various angles and these things are clearly seen in the L/85801-l 7 (•)\n\nSUPRED OOOllT RBPORT8\n\n(1966) SUPP, 8,0, B.\n\nphotographs. According to the doctor death was due to asphyxia- A tion.\n\nIn addition to the other evidence establishing the connection of Unni and Rajwani Singh with this crime there is a confession by Rajwani Singh before the Sub-Magistrate, Cochin in which he graphically describes the part played by him and Unni. Rajwani I Singh also stated that they only wanted the Lt. Commander and the sentry to remain unconscious while they rifled the safe and took away the money.\n\nIt is contended that we must accept the confession as a whole and must hold on its basis that the intention was not to kill, and that the offence of murder is therefore not established. As this is the most important point in the case we shall consider it first. 0\n\nThis point was argued by Mr. J. G. Sethi on behalf of Rajwant Singh and his arguments were adopted by Mr. Harbans Singh on behalf of Unni. Mr. Sethi argued that the offence was one of causing grievous hurt or at the worst of culpable homicide not amounting to murder and punishable under s. 304 (second part) of the Indian Penal Code. It is quite plain that the acts of D the appellants resulted in the death of the victim and the offence cannot be placed lower than culpable homicide because the appellants must have known that what they were doing was likely to kill. The short question, therefore, is whether the offence was murder or culpable homicide.\n\n11 Mr. Sethi submits that of the three clauses of s. 299, which define the offence of culpable homicide, the first deals with intentional killing and the second with injuries which are intentionally caused and are likely to cause death. He submits that these two clauses form the basis of the offence of murder and culpable homicide punishable under he first part of s. 304 and the third clause, which involves the causing of death with the knowledge that by r his act the offender is likely to cause death, is the foundation of offence of culpable homicide not amounting to murder punishable under the second part of s. 304. He submits that the appellants did not intend causing the death of the Lt. Commander but took action to keep him immobilised and silent while they rifled the safe. To achieve their purpose they tied the victim and closed his mouth and plugged the nostrils with cotton soaked in G chloroform. Each of these acts denoted a desire to keep the Lt.\n\nCommander out of the way for the time being but not to kill him. Nor can the acts be described as done with the intention of causing such bodily injury as was likely to kill.\n\nAt the most. says he. it can be said that the death was caused with the knowledge on the part of the appellants that by their acts they were B likely to cause death and that brings the matter within s. 304 II.\n\n1.P.C.\n\nK. UNNI v. STATE (HidayatuUah, J.) 235\n\nThe argument requires close examination. Two offences involve the killing of a person. They are the offence of culale homicide and the more henious offence of murder. What d1stmguishes these two offences is the presence of a special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater. These four mental attitudes are stated in s. 300, I.P.C. as distinguishing murder from culpable homicide Unless the offence can be said to involve at least one such mental attitude it cannot be murder. We shall consider the acts of the appellants in relation to each of the clauses of s. 300.\n\nThe first clause says that culpable homicide is murder if the act by which death is caused is done with the intention of causing death. An intention to kill a person brings the matter so clearly within the general principle of mens rea as to cause no difficulty.\n\nOnce the intention to kill is proved, the offence is murder unless one of the exceptions applies in which case the offence is reduced to culpable homicide not amounting to murder. As there is no question of any of the exceptions they need not be mentioned.\n\nBut it is plain that the appellants did not contemplate killing the Lt. Commander. No part of their preparations shows an intention to kill. Had they so desired, they had ample time and opportunity to effectuate that purpose without going to the trouble of using cotton soaked in chloroform to stuff the nostrils. They had only to hold his nose closed for a few minutes. The confession to which we have referred also shows that the news of the death of the Lt.\n\nCommander came to them with as much surprise as shock. In these circumstances, the first clause of s. 300 cannot apply.\n\nThe second clause deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm is caused.\n\nThe mental attitude here is two-fold.\n\nThere is first the intention to F cause bodily hanp and next there is the subjective knowledge that death will be the likely consequence of the intended injury. English Common Law made no clear distinction between intention and recklessness but in our law the foresight of the death must be present. The mental attitude is thus made of two elements-(a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death. Here the injury or G . harm was intended. The appellants intended tying up the victim, closing his mouth by sticking adhesive plaster and plugging his nose with cotton wool soaked in chloroform. They intended that the Lt. Commander should be rendered unconscious for some time but they did not intend to do more harm than this. Can it be said that they had the subjective knowledge of the fatal conse- H quences of the bodily harm they were causing? We think that on the facts the answer cannot be in the affirmative. To say that the act satified the test of subjective knowledge would be really\n\n236 BUPREMll COURT REPORTS\n\n(1966) 8UPP. 8.C.11.\n\ntantamount to saying that the appellants intended to commit the murder of the Lt. Commander which, as said already, was not the case.\n\nThe third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to\n\na person and the bodily injury intended to be intlictcd is sufficient B in the ordinary course of nature to cause death. In this clause the result of the intentionally caused injury must be viewed objectively. If the injury that the offender intends causing and d':'.es cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the oilender had a subjective knowledge of the consequences or not. As IKS laid down in Virsa Singh v.\n\nThe State of Punjab(') for the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nnture of that iniury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is established.\n\nApplying these tests to the acts of the appellants we have\n\nto see first what bodily injury has been established. The bodily injury consisted of tying up the hands and feet of the victim, closing the mouth with adhesive plaster and plugging the nostrils with cotton soaked in chloroform. All these acts were deliberate B acts which had been pre-planned and they, therefore, satisfy the subjective test involved in the clause. The next question is whether these acts considered objectively were sufficient in the ordinary course of nature to cause death. In our judgment they were. The victim could only possibly breathe through the nostrils but they were also closed with cotton wool and in addition an asphyxiating agent was infused in the cotton. All in all it would h~1ve been a miracle if the victim had escaped. Death of the victim took place as a direct result of the acts of his assailants.\n\nMr. Sethi suggested that the victim must have struggled to free himself and had rolled into the drain and this must have pushed up the cotton further into the nostrils. This is not correct.\n\nThe victim was placed in the drain by his assailants because his & folded shirt was placed under his head and had obviously fainted\n\nby that time. No one seems to have been aware of his presence; otherwise discovery would have taken place earlier. This leads to the only conclusion that there was no change in the circumstances in which the victim was left by the assailants. The bodily injury proved fatal in the ordinary course of nature. The ordinary course B ------\n\n.l-\n\nI. YNNI v.\n\nIT.I.TE (Hidayaturtah, J.) 237\n\nof nature was neither interrupted nor interfered with by any intervening act of another and whatever happened was the result of the acts of the as&ailants, and their acts alone.\n\nMr. Sethi argueii that the sufficiency of the injury to cause death in the ordinary course of nature is something which must be proved and cannot be inferred from the fact that death has in fact taken place. This ill true of some cases. If a blow is given by reason of which death ensues, it may be necessary to prove whether it was necessarily fatal or in the language of the Code suffiC!l'ent in the ordinary course of nature to cause death. In such a case it may not be open to argue backwards from the death to the blow, to hold that the sufficiency is established because death did result. As death can take place from other causes the sufficiency is required to be proved by other and separate evidence.\n\nThere are, however, cases and cases. Where the victim is either helpless or rendered helpless and the offender does some act which leads to death in the ordinary course and death takes place from the act of the offender and nothing else, it is hardly necessary to prove more than the acts themselves and the causal connection between the acts and the end result. Mr. Sethi contends that the concentration of chloroform, the quantity actually used and its effect on the victim ought to have been proved. Alternatively he argues that the quantity of the cotton wool used to plug the nostrils and the manner of plugging should have been established before a finding can be given that the bodily injury was sufficient in the ordinary course of nature to cause death. This would, of course, have been necessary if it could at all be thought that not the acts of the assailants but some other intervening circumstance might have led to the death of the victim. But there was none.\n\nThere was no interference by anyone else. Death was due to asphyxiation whether caused by the mechanical obstruction of the nostrils or by chloroform as an asphyxiating agent, or both. Whichever way one looks at it, the injury which caused the death was the one inflicted by the assailants. The sufficiency of the injury was objectively established by the nature and quality of the acts taken with the consequence which was intimately related to the acts.\n\nThere was no need to establish more than this in the case. As was pointed out in Anda v. State of Rajasthan(') \"the emphasis in clause thirdly is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues, and if the causing of the injury is intended, the offence is murder\". In this case the acts of the appellants were covered by the third clause in s. 300.\n\nAs we are satisfied that this case falls within clause thirdly we need hardly consider whether it falls also within the fourth clause or not. That clause comprehends, generally, the commission of\n\n1 A. I. R. !9M e. 0. 148 at 161.\n\n---~~- ----------\n\n. - --\n\n- 238\n\nSUPREME COURT REPORTS (1966] SUPP. a.o.R.\n\n-, imminently dangerous acts which must in all probability cause A -\n\ndeath_ To tie a man so that he cannot help himself, to close his mouth completely and plug his nostrils with cotton _wool soaked in chloroform is an act imminently dangerous to life, and it may\n\n- well be said to satisfy the requirements of the last clause also,\n\nalthough that clause is ordinarily applicable to cases in whichthere is no intention-to kill any one in particular. We need not, B ;; however, discuss the point in this case. We accordingly hold that tbe offence was murder. All the acts. were done after deliberation by the appellants. They were of a type which required more than one person to peqietrate.\n\nWhat was done had already been discussed and the execution of . the plan was carried out as contemplated. That there was a . o common intention admits of no doubt and as clause 3 of s. 300 views the consequence of tbe act objectively all those who shared'.\n\nthe common_ intention of causing the bodily injury .which was . sufficient to catise death in the ordinary course of nature must be held responsible for the resulting offence. Even if the consequence was different from what was actually intended, those who abetted (and the appellants were either_ offenders prindpally or abetters) _ D ~! would be equally responsible under s. 113 of . the Indian Penal .\n\nCode provided tbey knew that the act whichtbey were abetting was likely to cause that effect. On the argume'nt of_ the appellants tbat s. 304 II applies, it is obvious that the above provision must be attracted. In our judgment tbe appellants were rightly adjudged guilty under s. 302/34, Indian Penal Code. ·\n\nAs regards the sentence of death passed on Unni, we see no.· reason to interfere. He was the master mind beh; nd the whole\n\naffair and the sentence of death was, therefore, appropriate. We see no force in either appeal. They will be dismissed.\n\nAppeals dismissed.\n\n. . r\n\n------~==--,--·-----------\n\nE -;", "total_entities": 45, "entities": [{"text": "KALARIMADATlllL UNNI", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "KALARIMADATHlL UNNI", "offset_not_found": false}}, {"text": "STATE OF KERALA", "label": "RESPONDENT", "start_char": 22, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "STATE OF KERALA", "offset_not_found": false}}, {"text": "M. HIDAYATULI.All A~D V. 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{"document_id": "1966_1_239_258_EN", "year": 1966, "text": "STATE OF MADHYA PRADESH\n\nSHOBHARAM AND ORS.\n\nApril 22, 1966\n\n[A. K. SA/RKAR, C.J., M. HIDAYATULLAH, J. R. MUDHOLKAR,\n\nR. S. BACHAWAT AND J. M. SHELAT, JJ.)\n\nMadhyabharat Panchayat Jl.ct (58 of 1949), s. 63-If violates Art. 22 of the Constitution.\n\nConstitution of India, 1950, Art. 22(1)-Right of accused to be de fended by counsel-If ensures in cases when accused cannot be sentenced to imprisonment.\n\nThe respondents were arrested by the police for the offence of trespass and were released on bail. They were tried and sentenced to pay a fine by the Nyaya Panchayat, a court established under the Madhya Bharat Panchayat Act, 1949, with powers to impose only a sentence of fine. The conviction was set aside by the High Court on the ground that s. 63 of the Act, which provides that no legal practitioner shall appear on behalf of any party in a proceeding before the Nyaya Panchayat, violated Art. 22(1) of the Constitution and was therefore void.\n\nHELD: (Per Sarkar C.J., and Mudholkar, J.): The High Court was in error in setting aside the conviction.\n\nUnder Art. 22(1) a person arrested has the constitutional right to consult a legal practitioner concerning his arrest; and, a person who has been arrested as well as one who, though not arrested runs the risk of loss of personal liberty as a result of a trial, have the constitutional right to be defended by an advocate of their choice. But in a trial under a law which does not provide for an order resulting in the Joos of his personal liberty, he is not entitled to the constitutional rtght. because, the Article is concerned only with giving protection to personal liberty. [241 H-242 C. 244 B-C].\n\nThe Act does not give any power to deprive any one of his personal liberty either by way of arrest before the trial or by way of sentence of imorisonment as a result of the trial; nor does it deprive an arrested person of his constitutional right to take steps against the arrest or to defend himself at a trial which might occasion the loss of his personal liberty. The fact that the resoondents were arrested under another statute, namely, the Criminal Procedure Code cannot make either the section or the Act void. [242 G-H; 243 C-D; 244\n\nD-E] I I ' ... l State of Bombay v. Atma Ram Sridhar Vaidya, [19511\n\nS.C.R.\n\n167. 204. followed.\n\nQUAERE: Whether resnondents were not entitled to the constitutional right because, at the trial they were on bail. [244 E]\n\nPer Bachawat and She lat JJ.: Section 63 of the Act is violative of Art. 22(1) and is void to the extent that it denies any person who is arrested the right to be defended bv a legal practitioner of his choice in any trial for the crime for which he is arrested. but, the order of the High Court, quashing the conviction, should be set\n\n!l. :P. 3T.A.TE v. eo11HAI1ill (Sarkar, O.J.) Ul\n\nB. Sen and /. N. Shroff, for the appellant.\n\nB. D. Sharma, for the respondents.\n\nA. V. Rangam, for Intervener No. I.\n\nV. A. Seyid Muhammad, Advocate-General, Kerala, B. R. L.\n\nIyengar, A. G. Pudessery and M. R. K. K. Pillai fur Intervene!!\n\nNo. 2.\n\nB. R. G. K. Achar, for intervener No. 3 The Judgment of SARKAR C.J. and\n\nMUDHOLKAR J. was delivered by SARKAR C.J. The Judgment of BACHAWAT and. SHELAT J J. was delivered by BA CHAW AT J. HIDAYATULLAH J. delivered a dissenting Opinion.\n\nSarkar, C.J. On a complaint of trespass the police registered a case against the respondents under s. 447 of the Penal Code. The respondents were later arrested by the police and released on the execution of surety bonds whereby the sureties undertook to produce them as required by the police. The case against the respondents was thereafter put up before the Nyaya Panchayat, a court established under the Madhya Bharat Panchayat Act, 1949. In that court, fresh bonds were executed by sureties on behalf of the respondents to ensure their presence during the trial. The Nyaya Panchayat, after trial, convicted and sentenced the respondents to a fine of Rs. 75 each. The conviction was upheld by the Additional Sessions Judge, Barwani. The respondents then moved the High Court of Madhya Pradesh in revision which set aside the conviction. Hence the present appeal.\n\nSection 63 of the Panchayat Act provides that no legal practitioner shll appear on behalf of or shall plead for or defend any party in any dispute, case or proceeding pending before the Nyaya Panchayat. The High Court observed that in view of the provisions of Art. 22(1) of the Constitution, the section was void in respect of persons who were arrested.\n\nAs the respondents had been arrested, it set aside their conviction. The question in this appeal is, whether the section violated Art. 22(1). That provision has to be considered along with Art. 21 of the Constitution and both are set out below:\n\n\"Art. 21.\n\nNo person shall be deprived of his life or personal liberty except according to procedure established by law.\n\nArt. 22(1).\n\nNo person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.\" It seems to us fairly clear that a person arrested has the constitutional right to consult a legal practitioner concerning\n\nU2 SUPllllMll OOUBT REPOllT~ (19a6] SUPP, 8.U.R,\n\nhis arrest. It is also clear that a person arrested has the consti A tutional right to be defended by a legal practitioner. But, against what is he to be defended? We think that the right to be defended by a legal practitioner would include a right to take steps through a legal practitioner for release from the arrest. Now, s. 63 of the Act puts no ban on either of these rights. It cannot be said to be invalid as denying these rights. We may add that the Act is not B concerned with arrest and gives no power to arrest.\n\nBut, is the right to be defended by a legal practitioner conferred only on a person arrested? We do not think so.\n\nIn our opinion, the right to be defended by a legal practitioner extends also to a case of defence in a trial which may result in the loss of personal liberty. On the other hand, in our view, where a C person is subjected to a trial under a law which does not provide for an order resulting in the loss of bis personal liberty, he is not entitled to the constitutional right to defend himself at the trial by a legal practitioner. The reason is that Arts. 21 and 22 of the Constitution are concerned only with giving protection to personal liberty. That is strongly indicated by the language used in these Articles and by the context in which they occur in the D Constitution. That also appears to be the view which has been taken by this Court. Thus in State of Bombay v. Atma Ram Sridhar Vaidya(') Das. J. (as he then was) observed:\n\n\" ......... the implication of that article (Art. 21) was that a person could be deprived of his life or personal liberty provided such deprivation was brought E about in accordance with procedure enacted by the appropriate Legislature. Having so provided in article 21, the framers of our Constitution proceeded to lay down certain procedural requirements which, as a matter of constitutional necessity, must be adopted and included in any procedure that may be enacted by the Legislature and in accordance with which a person may be deprived F of his life or personal liberty. Those requirements arc set forth in article 22 of the Constitution.\" It would follow that the requirement laid down in Art. 22(1) is not a constitutional necessity in any enactment which does not affect life or personal liberty.\n\nNow we find that the Act expressly provides that the Nyaya G Panchayat cannot inflict a sentence of imprisonment, not even one jn default of payment of fine which it is authorised to impose. We also find that the Act does not give any power of arrest.\n\nThe case against the respondents was one in which in the first instance a summons and not a war.ant could issue and therefore no arrest was inevitably necessary. The arrest. if any that could 11\n\n(') [1961] S.C.R. 187, ~.\n\n\" ,,\n\n' A\n\nM. P. STA'fE V.\n\nSOBJIARAM (Sarkar, O.J.) 243\n\nbe made if a warrant came to be issued, would have been under the Code of Criminal Procedure and not the Panchayat Act. The Act, does not lay down any procedure or law entailing or justifying an order depriving a person of his personal liberty. For such a law, the procedural requirement in Art. 22(1) is not a constitutional necessity. The Act does not violate Art. 22(1) and cannot be held to be invalid on that ground.\n\nIt is true that in this case the respondents had been arrested but they had been arrested not under the Act but under s. 54(1) of the Code of Criminal Procedure, the offence being cognizable.\n\nA cognizable offence when tried by any of the courts created by the Code is punishable with imprisonment.\n\nBut the Code by s. 340 entitles an accused person to be defended by a lawyer. We are however not concerned in this case with a trial by a court created by the Code. The question in this appeal is, whether the Panchayat Act is invalid. The Act does not deprive any arrested person of his constitutional right to take steps against the arrest or to defend himself in a trial which might occasion the loss of his personal liberty. It takes away no constitutional right at all.\n\nCan the fact that the respondents were arrested under another law and thereafter tried under the Act give them the constitutional right to be defended at the trial by a legal practitioner?\n\nWe do not think so. We think it clear that it cannot be said tha, t the fact of arrest gives the arrested man the constitutional right to defend himself in all actions brought against him.\n\nTake the case of these respondents. Suppose that after the arrest an action was started against them for recovery of damages for wrongful trespass. Could they say that in view of Art. 22(1) they had a constitutional right to appear by a legal practitioner in that action? Could they say that if the law under which the trial was held denied the right to be represented by a legal practitioner, it was invalid as offending Art. 22(1)? We suppose the answer must plainly be in the negative. It wonld follow that it is not the fact of the arrest itself that gives the right to be defended by a lawyer in all matters.\n\nWe may put the matter from a different point of view.\n\nAssume a case in which a law creating an offence provides that on conviction a person shall be sentenced to a certain term of imprisonment but states that it shall not be necessary to arrest the person accused of that offence before he is put up for his trial. We should suppose that in such a case the person would be entitled to the constitutional right of being defended at the trial by a legal practitioner and any provision that denies that right to him would be void as violating Art. 22(1).\n\nWe think this would be in consonance with the decision of this Court in Atma Ram Sridhar Vaidya's case('). We do not think that the Constitu-\n\n(') [1951] S.C.R. 167.\n\niUPRKMB COURT:RBPORTS [1966] 8Ul'P. B.C.R.\n\nlion could have intended that a person who ran the risk of loss of personal liberty as a result of a trial. would not have the right to defend himself by a legal practitioner at the trial because he had not been arrested. There would be no principle to support such a view. Likewise, we do not think that the Constitution makers intended that a person arrested would have the right to be defended by a legal practitioner at a trial which would not result in the deprivation of bis personal liberty.\n\nHe, of course, bad the right to seek relief against the arrest through a legal practitioner.\n\nWe would interpret the words \"nor shall he\" in Art. 22 as not being confined to a person who has been presently arrested but also as including a person who though not arrested runs the risk of loss of personal liberty. It seems to us that we would thereby be carrying out the spirit of the Constitution.\n\nThe question before us is, whether the Nyaya Panchayat Act\n\nis void as offending Art. 22(1) because it contains s. 63. In our view, it is not void because it does not give any power to deprive anyone of his personal liberty either by way of arrest before the trial or by way of a sentence of imprisonment as a result of the trial. It would appear that the High Court took the same view D when it said that the section was void \"in the case of persons arrested\". In our opinion, the High Court was in error. The validity of an Act cannot depend on the facts of a case but on its terms. The fact that the respondents were arrested under another statute, cannot, in our opinion, make the Act void.\n\nA question was mooted at the Bar that since at the trial the respondents were not under arrest having been released on execution of bonds, they were no longer entitled to the constitutional right conferred by Art. 22(1). As at present advised, we arc not inclined to accede to this view. We consider it unnecessary to pursue this matter further in the present case.\n\nFor the reasons earlier stated, in our view, the Act is perfectly valid. No question therefore arises of the conviction being r bad on the ground that the Act was invalid. In our view, the High Court was in error in setting aside the conviction.\n\nWe would, therefore, allow the appeal, set aside the judgment of the High Court and restore that of the courts below it.\n\nHidayatullab, J. In my opinion this appeal should fail.\n\nG The short question in this appeal is whether s. 63 of the Madhya Bharat Panchayat Act is inapplicable to criminal trials owing to its inconsistency with Art. 22(1) of the Constitution. The Panchayat Act was passed on June I7, 1949 and under its provisions the Nyaya Panchayats are empowered to try certain offences including the offence of criminal trespass punishable under s. 447, B Indian Penal Code. The Act, however, places a limitation on the powers of these courts by enactilli that they can impose a sentence\n\n• A\n\nlil\n\nllO:. !'. iTATlil •• SOBHAIIAM (Hidayatullah, J.) 2'1l\n\nof fine but not imprisonment. The respondents were arrested by the Police without a warrant from a Magistrate, for an alleged offence under s. 447, Indian Penal Code and were released on bail. After investigation the case was sent for trial before the Nyaya Pancha yat, Barwani. Fresh bail bonds were obtained from them by the Nyaya Panchayat. The respondents were fined Rs. 75 each, but no sentence of imprisonment in lieu of fine was imposed on them.\n\nThe respondents were not defended by a lawyer at the trial presumably because of s. 63 of the Act which reads:\n\n\"No legal practitioner shall appear on behalf of or shall plead for or defend any party in any dispute, case or proceedings pending before the Nyaya Panchayat\".\n\nThe respondents filed an application for revision before the Additional Sessions Judge, Barwani but were unsuccessful. They then filed a second application for revision in the High Court of Madhya Pradesh and inter alia contended that the trial was vitiated because they were deprived of their right to be defended by counsel guaranteed under Art. 22(1) of the Constitution. They also submitted that s. 63 of the Act was rendered void by reason of Art. 13 in view of its inconsistency with this guaranteed right. A learned single Judge of the High Court referred the second point for consideration by a larger Bench but the Divisional Court declined to consider it because, in its opinion. the decision of this Court in the State of Punjab v. Ajaib Singh and Anr.(') had distinctly laid down that Art. 22(1) was not applicable to persons held in custody or bail under an order of a court and, therefore, the point did not arise for decision. The case was remitted to the learned single Judge who, by the order under appeal, July 9, 1964 allowed the application for revision holding that the trial was vitiated as the respondents were deprived of their fundamental right to be defended by a counsel of their choice. He accordingly set aside their conviction but did not record an acquittal. The question thus arises whether s. 63 of the Panchayat Act (in the setting of the powers of the Nyaya Panchayat) can be said to offend Art. 22(1) and for that reasn to be void in so far as it takes away the right of a person who ts arrested to be defended by a legal practitioner of his choice in a trial before the Nyaya Panchayat.\n\nMy brother Bachawat has held the section to be inapplicable to crinal trials before the Panchayat courts. He has, however, set aside the order of the High Court on the ground that the respondents did not seek to exercise their right at the trial and cannot, therefore, be said to have been deprived of it. I agree with him on the first point but in view of the importance of the question which affects some other statutes and involves a very valuable right, I consider it necessary to express my views upon it.\n\n(') [11153] S.Cl.L\\. zu,\n\n246 iUPREllE OOURT REPORTS\n\n{1966] BUPP. B.C.R.\n\nArticle 22 is in Part III of the Constitution in a sub-chapter A headed \"Right to Freedom''. It is one of three articles immediately following Art. 19. Under Art. 19 certain fundamental rights are protected subject to restrictions which may be imposed on those rights by law. Those restrictions are specified in relation to each of the guaranteed right in the article itself. We are not concerned with the rights or the restrictions because they do not touch the B present matter.\n\nArticle 20 which comes next consists of three clauses which are somewhat inadequately described by the marginal note \"Protection in respect of conviction for offences''. The first clause gives protection against retroactive penal laws, the second against double jeopardy and the third against testimonial compulsion. We are again not concerned with any of these rights.\n\nThe next article is a general declaration relating to protection of 0 life and personal liberty. It reads:\n\n\"21. Protection of life and personal liberty.\n\nNo person shall be deprived of his life or personal liberty except according to procedure established by law.\"\n\nIt will be noticed that there is no mention here of any particular D l11w, nor of the articles that follow. Article 22, with which we arc concerned, deals with several matters which arc compendiously described in the marginal note as \"Protection against arrest and detention in certain cases''. It consists of seven clauses of which els. (4) to (7) deal with preventive detention and the special requirements of such cases. They need not be considered here. Clause\n\n(3) excludes the operation of the first two clauses in respect of B alien enemies and persons detained under any law providing for preventive detention. They do not touch our case.\n\nThis leaves els. (!) and (2) which may be quoted here:\n\n\"22. Protection against arrest and detention in certain cases. (!) No person who is arrested shall be detained in 1 custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.\n\n(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours G of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.\n\nM. P. ST.1.Tl!l v. BOBHAl\\Alll (Hidayatullah, J.) 247\n\nArticles 21 and 22 in a sense go together but, in my opinion, they cannot be treated as interrelated or interdependent. Article 21 prohibits arbitrary deprivation of life and personal liberty by laying down that these two possessions can only be taken away in accordance with procedure established by law.\n\nNo authority in India (legislative, executive or judicial) can deprive a person of his life or personal liberty unless it can justify its action under a procedure established by law. Article 21 does not indicate what that law must be nor does Art. 22 say this. Article 22, no doubt, advances in a way the purpose of Art. 21, when it specifies some guaranteed rights available to persons arrested or detained and lays down the manner in which persons detained preventively must be dealt with. But the force of the declaration in Art. 21 is much greater than that because it makes law as the sole basis of State action to deprive a person of his life and personal liberty.\n\nWe are not concerned in this case with arbitrary deprivation of life and personal liberty. The respondents were considered to have committed an offence of criminal trespass and were arrested anJ tried by procedure established by law. The only defect in that proceJure was that they were unable to get assistance of counsel because of a provision of law which they claim to be void by reason of Art. 22(1). I proceed to examine the question.\n\nArticle 22(1) is in two parts and it gives to persons arrested a two-fold protection. The first is that an arrested person shall not be detained in custody without being told the grounds of such an arrest and the other is that he shall be entitled to consult and to be defended by a legal practitioner of his choice. Art. 22(2) gives a third protection and it is that every person arrested and detained in custody must be produced before the nearest Magistrate within 24 hours excluding the time necessary for the journey from the place of arrest to the court of the Magistrate. In Ajaib Singh's case(') it was held that by \"arrest\" in the article is meant physical restraint put on a person as a result of an allegation or accusation that he has committed a crime or an offence of a quasi-criminal nature or that he has acted in a manner which is prejudicial to the State or public interest. It was further held that as arrests under warrants issued by courts almost always indicate the reasons for the arrest and require the person executing the warrant to produce the person arrested before the court, such arrests are outside Art. 22(1) and (2). It was thus held that the article was designed to give protection against the act of the executive or other non-judicial authority. That case arose under the Abducted Persons (Recovery and Restoration) Act 1949 (65 of 1949) under which persons abducted from Pakistan were rescued. Such persons were taken in custody and delivered to the custody of an officer-in-charge of a camp for the purpose of return to Pakistan. In deciding that this\n\n(') (1953] 8.C.R. 254.\n\nL}S5SOI-l8\n\n~48 [19eei 8UP?. 8.c.it.\n\nwas not the kind of arrest contemplated by Art. 22 the court A examined what meaning could be given to the word arrest. But the Bench guarded itself by obstrving as follow~: -\n\n\" ........ .It is not, however, our purpose, nor do we consider it desirable, to attempt a precise and meticulous enunciation of the scope and ambit of this fundamentul I right or to enumerate exhaustively the cases that come within its protection ..................... \". ·~ The case cannot be treated as naving laid down the law finally or exhaustively. Similarly, in State of Uttar Prades/1 v. Abdul Sammad and Anr.(') involving arrest and deportation of a person it was held by majority that it was not necessary to produce such a person before the Magistrate If he was produced before the High 0 Court and the High Court remitted the person back to the same custody. Mr. Justice Subba Rao dissented with this view. Abdul Samad's case(') was also not exhaustive because the majority observed:\n\n\"In view of the very limited question before us we do not feel called upon to deal with the scope of Art. 22{1) D 22(2) or of the two claUIC!S read together in relation to the taking into custody of a person for the purpose of executing a lawful order of deportation ......... \"\n\nI consider that there is room for further deliberation on the point. I do not see how wo can differentiate between arrests of different kinds. Arrest is arrest, whatever the reru; on. In so far as • the first part of Art. 22(1) is concerned it enacts a very simple safeguard for persons arrested, It merely says that an arrested person must be told the grounds of his arrest In other words. a person's personal liberty cannot be curtailed by arrest without informing him, as 110on Bll is possible, why he is arrested.\n\nWhere . the arret is by warrant, the warrant itlf must lell him, where it\n\nis by an order, the order must tell him and where there is no 1 warrant or order the person making the arrest must give that infonnation. However the arrest is made, this mu5t be done and tllat is all that the first part of Art. 22(1) lays down. I find nothing in Art. 22(1) to limit this n1quirement to arrests of nny particular kind. A warrant of a court and an ordet of any authority mns~ show on their face the reason for arrest. Where there i~ no such warrant or order, the per91>n making the arrest must inform the 0 person the ree10n of his arrest. In other words, Art. 22(1) means what it says in its first patt. _.,._\n\nI now come to the latter prt of Art. 22(1). Here again, the language is extremely clear. The words \"nor shall he be denied th~\n\nright to consult. and to be defended by, a legal practitioner of his choice\" refer to a person who is arrested. This is the sense of the B\n\n(') [162] Bupp. 3 B.C.R. 915.\n\nM. P. 81'ATE v. BOBHARAll (Hidayatullah, J.) 249\n\nA matter and the grammatical construction of the words. It is con- , tended by Mr. B. Sen that the article only affords a person to get released from arrest and the word 'defended' means that the person who is arrested ha.s a right to consult a legal practitioner of his choice and to take his aid to get out of the arrest. He contends that if a person has already been released on bail either by ' '.\n\nB the authority making the arrest or by an order of the court. the v purpose of the article is served and occasion for the exercise of the guaranteed right is over. He argued, therefore, that in the present case the section cannot be characterized as unconstitutional because the respondents were not under arrest during their trial and they were not in danger of losing their personal liberty in any\n\nway since the Nyaya Panchayat had no power to impose a sentence of imprisonment. I do not agree.\n\nAs I have stated already a person who is arrested gets three rights which are guaranteed. The first is that he must be told why he is arrested. This requirement cannot be dispensed with by taking bail from him. The need to tell him why he is arrested, remains still. The next is that the person arrested must not be detained in\n\nD custody more than 24 hours without being produced before a Magistrate. This requirement is dispensed with when the person arrested is admitted to bail. Otherwise it remains. The third is that he gets a right to consult and to be defended by a legal practitioner\n\n1 of his .choice. This is, of course, so while the arrest continues but there are no words to show that the right is lost no sooner than he is released on bail. The word 'defended' clearly includes the E exercise of the right so long as the effect of the arrest continues.\n\nBefore his release on bail the person defends himself against his\n\n)~ arrest and the charge for which he is arrested and after his release on bail, against the charge he is to answer and, for answering which, the bail requires him to remain present. The narrow meaning of the word \"defended\" cannot be accepted.\n\nThe framers of ouf Constitution must have been aware of the F long struggle that took, place in .England before the right to be represented by counsel and to be told the grounds of arrest was established. No doubt the Crown was then concerned with traitors and other Jaw-breakers. and in a desire to. put them down denied them these privileges: The system then was inquisitorial as against the accusatorial which we have adopted. Although the trial was open (which was better than the continental trial behind doors), G defence as late as 1640 meant in the words of Sir Thomas Smith('), a mixture of formality and informality which consisted of an altercation between the accused and the prosecutor and his witness. The prisoner was not told what .charge he had to meet because he was not informed why he was arrested. and no copy of the indictment\n\nH was handed to him('). He was closely questioned by the examining\n\n(1) De Republica Anglorum Bk. II o. 23 quoted by Holdsworth, Hiatory Q/ 11'tgli6k\n\nf.11w V\"\"ol. IX, p. 225.\n\n(1) Stephen: History of Oriminal Law Vol. l, pp. 325, 330-31.\n\nL;85SC!-18(a)\n\n250 St:PREl\\11!. COURT RF.l'ORTS\n\n[ IB66) RUPP. B.O.R\n\nMagistrate and then by the Judge at the trial and the prosecuting counsel. Thus it was that Throckmorton, as an accused, was first subjected to lengthy cross-examination and had to argue even points of law in which at least he got the better of the Judge and the King's counsel and secured a verdict of not guilty from the jury.\n\nIt is, of course, a matter of history, which is well-known, that the jury were themselves punished('). Sir Walter Raleigh was also denied assistance of counsel and was cross-examined by Popham CJ. without being \\\\arned or confronted with witnesses whose statements were used against him('). Colledge had legal advice but he fared no better because at the trial his papers containing instructions for his defence were taken away from him on the ground that this would be tantamount to getting assistance from counsel('). By an Act of 1695 only persons accused of high treason were given assistance of counsel and by 6 and 7 William IV. c. 114 (in the year 18371 the Prisoners' Counsel Act gave persons accused of felony the right to be defended by counsel. This history of English law makes it clear that lhe right to be defended by counsel and to be informed lhe reason for arrest is not an empty declara tion coming to an end with release on bail.\n\nNearer to our times we have the example of the United States of America. Right to counsel is considered so fundamental to a criminal trial that the Supreme Court of the United States ruled that there was a mistrial when Clarence Gideon could not afford a counsel and the State <lid not furnish one to him. Clarence Gideon was not charged with anything more serious than \"the crime of breaking and entering with the intent to commit a mis demeanour, to wit, petty larceny\". In the American Constitution there is no provision that an accused has a right to counsel but the Supreme Court stretched the due process clause to cover such a case. It is significant that at the retrial. with counsel. Gideon was acquitted of the charge on which he was first convicted.\n\nNo doubt this was considered by the Supreme Court of America from the point of legal aid to persons accused of crime and our laws view legal aid differently. Under our jurisdiction providing counsel to an accused who cannot afford one (except in capital cases\\ is not a right. Our law in respect of legal aid is similar lo that declared by the Lord Chief Justice of England ir Reg. v. Howes(') who pointed out that the right to be defended by counsel is (in all save murder and treason cases) one ultimately for the discretion of the court to confer or deny. ---------------·\n\nG (') I 8t•te Tr; a) 8;2.R9~. 1'1\n\n[1603] 2 S.T. I. 4- (') SST. 549-51\\3. North C.J. after e:1am?t1ing thf' p&J>f'fr< Ht.id :\n\n\"for that whirb eontninR the nom~ of the witn~. that you ha.-re &flin for other rna.ttem, the instru1tin:1 .. in point of law, if they had l:>N-n wr; U('n in th,. fir -t J>f!fMO, in your own n11me, thl\\.t wn mill'.ht believe it wr.e yo11r writing, it would bar,. liNm something; hut when it i\" wriU.fln in tho &eco•\\d pnr1on, you bould do PO llnd l'Q, bv which it n.ppe.ar:.i to brwritten by another person, it i!!' an ill prt!oednnt t permit :<•:ch H t.hing&; that wero iog:\\eyou OO!!D&el in Ml indif\"&('t way, whic-h tho law 7hll1o you U(•t 1tif'l'lelly\". ibid p. 6R5. i'I [191\\4] I W.J,, R. 576.\n\nlil\n\nM. P. STATE v. SOBHARAM (Hidayatullah, J.) 251\n\nAs we are not concerned with legal aid I need not say more but it is at least clear that when our Constitution lays down in absolute terms a right to be defended by one's own counsel, it cannot be taken away by ordinary law and it is not sufficient to say that the accused who was so deprived of this right, did not stand in danger of losing his personal liberty. If he was exposed to penalty, he had a right to be defended by counsel. If this were not so then instead of providing for punishment of imprisonment, penal laws might provide for unlimited fines and it would be easy to leave the man free but a pauper, and that too without a right to be defended by counsel('). If this proposition were accepted as true we might be in the Middle Ages.\n\nThe Criminal Procedure Code allows the right to be defended by counsel but that is not a guaranteed right. The framers of the Constitution have well-thought of this right and by including the prescription in the Constitution have put it beyond the power of any authority to alter it without the Constitution being altered.\n\nA law which provides differently must necessarily be obnoxious to the guarantee of the Constitution. There is nothing in the words of the Constitution which permits any authority to alter this condition even on grounds of public interest as is the case with the guaranteed rights in Art. 19. Nor can we by a niggling argument lessen the force of the declaration so explicit in its terms or whittle down its meaning by a specious attempt at supposed harmony between rights which are not interdependent.\n\nThere are three rights and each stands by itself. The first is the right to be told the reason of the arrest as soon as an arrest is made, the second is the right to be produced before a Magistrate within twenty-four hours and the third is the right to be defended by a lawyer of one's choice. In addition there is the declaration that no person shall be deprived of his personal liberty except by procedure established by law. The declaration is general and insists on legality of the action. The rights given by Art. 22(1) and (2) are absolute in themselves and do not depend on other laws. There is no force in the submission that if there is only a punishment of fine and there is no danger to personal liberty the protection of Art. 22(1) is not available. Personal liberty is invaded by arrest and continues to be restrained during the period a person is on bail and it matters not whether there is or is not a possibility of imprisonment. A person arrested and put on his defence agai.nst a criminal charge, which may result in penalty, is entitled to the right to defend himself with the aid of counsel and any law that takes away this right offends against the Constitution. In my judgment, therefore, s. 63 of the Panchayat Act being inconsistent with Art. 22(1) be- 'came void on the inauguraton Qf the Constitution in so far as i~\n\ntook away the right of an arrested person to be defended by a legal practitioner of his choice.\n\n(') [1964] IW.L.R. 576.\n\nSUPREMR COURT REPORTS [1966] SUPP. s.o.R.\n\nMy brother Bachawat has reached the same conclusion but has reversed the order of the High Court and restored the conviction and penalty on the ground that no request was made at the trial for permission to be defended by courisel. I find it difficult to accept this result. It is true that the contention raised in the High Court has the appearance of an after-thought because no complaint was made before the Sessions Judge. But it is nevertheless a question of a fundamental right. Since a request to bring in counsel would have been doomed to failure. I feel I should not hold that the respondents go by default. As this objection is taken in the criminal case itself, albeit at a late stage, and not by a belated collateral proceeding, I would allow the High Court order to stand.\n\nAfter all the prosecution will be free to start the case again. if it is so desired. and the accused will have the opportunity to defend themselves with the assistance of counsel if they so care. I would, therefore, dismiss the appeal.\n\nBachawat, J. On or about November JS, 1962, on receipt of\n\na first information report charging ihe respondents with an offence under s. 447 of the Indian Penal Code, the Station Officer, Bar- D wani registered the offence and arrested the respondents. The arrests were made without warrants issued by a magistrate. Subsequently, the respondents were released by the Station Officer on execution of bail bonds with sureties for appearance in the Court of Nyaya Panchaya.t, Barwani and other courts. On November 20, 1962, the Station. Officer submitted to the Nyaya Panchayat, Bar, wani a charge-sheet against all the respondents. On the same day, B the respondents appeared before the Nyaya Panchayat, and executed fresh bonds with sureties for appearance before the Nyaya Panchayat. The case was heard on several days, and on January 31. 1963, the Nyaya Pancbayat convicted all the respondents under s. 447 and sentenced each of them to pay a fine of Rs. 751-. On April 9, 1963, the Additional Sessions Judge, Barwani dismissed a revision application filed by the respondents. The respondents filed a F revision petition before the High Court of Madhya Pradesh, Indore Bench, and contended for the first time that s. 63 of the Madhya Bharat Panchayat Act, 1949 is violative of Art. 22(1) of the Constitution and their trials and convictions were illegal. The High Court accepted these contentions, and by its order dated July 9, 1964 declared that s. 63 is void to the extent that it denied the respondents the right to be defended by a legal practitioner. of their G, choice in the trial before the Nyaya Panchayat, quashed the convictions and sentences and directed that they be dealt with in accordance with law. The State of Madhya Pradesh now appeals to this Court on a certificate granted by the High Court.\n\nMr. B. Sen appeared on behalf of the appellant. Mr. Sharma.\n\nH who was appointed as amicus curiae by an order of this Court, argued the case of the respondents. In view of the constitutional\n\n_,,_\n\nM. P. STATE v. SOBIUBAM (Bachawat, J.) 258\n\nquestions raised in this case, notices were issued to the Advocates- General of .all the States. Mr. Jengar appeared on behalf of the Advocate-General of Kerala, and he stated that there was no provision similar to s. 63 of the Madhya Bharat Panchayat Act in the State of Kerala. Mr. Rangam appeared on beh; i.lf of the Advocate-\n\nGeneral of Madras, and he drew our attention to s. 76(5) of the Madras Village Courts Act (Act I of 1887).\n\nThe Madhya Bharat Panchayat Act was passed on June 17,\n\n1949. By s. 75 of the Act, the Nyaya Panchayat is empowered to try certain offences committed within its jurisdiction including offences under s. 447. The Nyaya Panchayat has power to impose a fine not exceeding Rs. 100 /-, but it has no power to inflict a substantive sentence of imprisonment nor a sentence of imprisonment in default of payment of fine. Section 79 provides that if at any time it appears to the Nyaya Panchayat (a) that it has no jurisdiction to try any case before it or (b) that the offence is one for which it cannot award adequate punishment or (c) that the complaint is such or that it is so complicated that it should be tried by a Court of Justice, the Nyaya Panchayat shall tum the complaint to tt.< complainant directing him to file it before a Sub-U1V1s1onal Magistrate having jurisdiction to try the case. By. s. 89, the decision of the Nyaya Panchayat in its criminal jurisdiction is final and not appealable except that it is subject to revision by the Sessions Judge.\n\nSection 8.7 provides that subject to .\\be provisions of s. 63. any party may appear before a Nyaya Pancha, yat by a duly authorised 1. presentative. Section 63 prov)des:\n\n\"No legal practitioner shall appear on bebalf of or shall plead for or defend any party in any dispute. case or proceedings pending before the Nyaya Pane.hay.at.\"\n\nThe question is whether this section infringH Art .. 22 of the Constitution. The second part of Art. 22(1) reads:\n\n\"nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.\" Mr. Sen submitted that \"he\" means a person who is arrested and detained, and as the respondents were not detained at the time of the trial before the Nyaya Panchayat, the constitutional guarantee is not available to them. Alternatively, he submitted that \"he\" means \"any parson\". He argued that in the case of The SttJte of Punjllb v. Ajaib Singh and another('), this Court has restricted the constitutional guarantee embodied in the first part of Art. 22(1) to persons arrested otherwise than under a warrant issued by a Court, and he submitted that this restricted interpretation should not be given to the second part, the two parts should be read independently of each other and the protection of the second part should be extended to all persons. But he also submitted that m the context of Art. 21 the right given by the second part of cl. (!) of Art. 22\n\n(') (1953] S.C.R. 154.\n\n254 8UPRl!llE COURT REPORTS [1966] SUPP. s.r.R.\n\nshould be limited to trials in which any person is deprived of his life A or personal liberty or is in jeopardy of being so deprived. He pointed out that the Nyaya Panchayat has no power to inflict a sentence of imprisonment an~ he, therefore, submitted that the constitutional guarantee embodied in the second part of Art. 22(1) did not apply to a trial before a Nyaya Panchayat. It will thus appe;1r that Mr. Sen asked us on the one hand to give a liberal interpretation B to the second part of Art. 22(1) by applying it to all persons, whether arrested or not and whether arrested under or without a warrant issued by a Court, and, on the other hand, he asked us to give it a restricted interpretation by limiting its operation to a trial in which the accused is in jeopardy of being deprived of life or liberty.\n\nMr. Iengar submitted that \"he\" means \"any person who is arrested\".\n\nHe argued that the second part of Art. 22(1) is an injunctiQJl on the C arresting and detaining authority not to prevent consultation and defence by a legal practitioner, and it gives no right to be defended at a trial. Mr. Rangam adopted the arguments of Mr. lengar. Mr.\n\nSharma submitted that \"he\" means any person who is arrested and -1-. that any person who is arrested has the right to be defended at the trial for the offence for which he is arrested.\n\nOur duty is to lLten to the clear words of the Constitution, understand its message and then interpret it. Article 22(1) reads:\n\n\"No person who is arrested shall be detained in custody without being informed, as soon as may be. of the grounds f,... such arrest .. .. .. .. . \" Every person is prima facie entitled to his personal liberty. If any person is arrested, he is entitled to know forthwith why he is being deprived of his liberty, so that he may take immediate steps to regain his freedom. Article 22(1) then continues:\n\n\"nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.\"\n\nWho is this \"he\" in the second part of Art. 22(1)'! The pronoun \"he\" must refer to the last antecedent. \"lie\" therefore means \"any 'F person who is arrested''. He has the right to consu!t his lawyer and to be defended by him, so that he may guard himself against the accusation for which he is arrested.\n\nBoth parts of cl. (!) of Art. 22 thus come into play as soon as any person is arrested. Clause (2) of Art. 22 then goes on to give every person who is arrested and detained the right to be produced before a magistrate within 24 hours and the right to freedom from G detention beyond the said period without the authority of a magistrate. Das. J., therefore, observed in A. K. Gapa/an v. The State('):\n\n\"Clauses (I) and (2) of article 22 lay down the pro cedure that has to be followed when a man is arrested.\n\nThey ensure four things: (a) right to be informed regard\n\n('> [I969J s.c.R. ss, 326.\n\nI .....\n\nM. P. SO'ATR v. S\"BHARAM (Bachawat, J.) ~55\n\n::~ ing grounds of arrest, (b) right to consult, and to be defended by, a legal practitioner of his choice, (c) right to be produced before a magistrate within 24 hours and (d) freedom from detention beyond the said period except by order of the magistrate.\" Clauses (I) and (2) of Art. 22 safeguard the rights of the person arrested. The arrest of any person on a criminal charge is a step in an intended criminal proceeding against him. Save where the magistrate dispenses with his personal attendance and permits him to appear by a pleader, the first step in a criminal proceeding is to bring the accused before the magistrate. The trial before the magistrate proceeds \"when the accused appears or is brought before him.\" The attendance of the accused before the magistrate is secured by summons or by arrest under or without a warrant. Upon arrest, he may either be released on bail or be remanded into custody. If he is released on bail, the bail bond ensures his attendance at the trial. Summonses, warrants, arrests without warrant and bail bonds are all machinery for securing the attend; ince of the accused before the Court.\n\nThe arrest of the accused on a criminal charge has thus an intimate connection with his eventual trial on the charge. It is at the trial in the criminal Court that the accused defends or is defended by counsel. Section 340 of the Code of Criminal Procedure, therefore, provides that any person accused of any offence before a criminal Court may, of right, be defended by a pleader. In this background, the right of defence by a legal practitioner given by Art. 22(1) must extend to defence in a trial in a criminal Court.\n\nArticle 21 guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22 guarantees the minimum rights which any person who is arrested shall enjoy. In support of his contention that the right of defence of the arrested person given by cl. (I) of Art. 22 should be restricted to trial of offences in which the accusect is in jeopardy of being deprived of his life or liberty, Mr. Sen relied upon the observations of Das, J. in State of Bombay v. Atma Rani Sr dhar Vaidya(') that Art. 22 sets forth certain procedural requirements which, as a matter of constitutional necessity, must be adopted and included in any procedure that may be enacted by the legislature and in accordance with which a person may be deprived of his life or personal liberty. He also relied upon the following observations of Das, J. in A. K. Gopalan v. The State(') at p. 325 \"Clauses (I) and (2) of Article 22 lay down the procedure that has to be followed when a man is arrested.\" For the purp0ses of this case, let us give these observations their full effect. When any person is arrested, he is deprived of his liberty, the procedure lltid\n\ndown in cl. (I) of Art. 22 must then be followed, and he must be allowed the right to be defended by counsel of his choice. No\n\n(') (1951] S.O.R. 167, 2'4.\n\nI')\n\n[1950] S.O.R. SS.\n\niUPRllKK OOURT RIPORTS [1966] SUl'P. R.C.R.\n\nlaw which permits deprivation of his personal liberty by arrest can A deny him this right. Why should this right be limited to a trial in which he may be sentenced to death or to a term of imprisonment?\n\nWhy should this right be denied to him in a trial in which he is in jeopardy of being convicted and sentenced to a heavy fine? The clear words of Art. 22 furnish no basis for this limitation. On trus\n\nbrnnch of his argument, Mr. Sen submitted that \"he\" in the second B part of cl. (I) shCYUld be read us \"any person\" in order that this part of cl. (I) may not suffer from the Testricted interpretation of \"arrest\"\n\ngiven in Ajaib Singh's <:Me('). It impossible to accept this argu men!. The narrow interpretation of the expression \"arrest\" given in that case is not a ground for giving an unrnitural meaning to the expression \"he\". The e<1ntext of cl. (I) suggests that \"he\" refers to any pers(l'll who is arrested. But let us assume that it is possible to C give a more liberal interpretation to \"he\" nncl the operation of the second part of the clause should be extended to \"any person''. Even on this view, we find no warrant for giving a restricted interpreta tion to the second part of the clause by reference to Art. 21 and for saying that the right to be defended by counsel is limited to a trial in which the arrested person is in jeopardy of being sentenced to death or to a term of imprisonment.\n\nD It has been suggested that the right of defence by counsel given by Art. 22(1) does not extend to a tria.! of an offence before the Nyaya Panchayat because the Madhya Bharat P<tnchayat Act, 1949 does not authorise any arrest and, as a mattCT of fact. the respondents were arrested by the police in the exercise of its powers\n\nunder s. 54 of the Code of Crhninal Procedure. We are unable to 11 accept this suggestion. Suppose a statute sets up a special criminal Court for tbe trial of certain oienees, and it gives no power to the police to arrest any person. Nevertheless. the police has under its general powers under the Code of Criminal Procedure authority to arrest any person concerned in any cognisaole offence. If in the ex ercise of these powers the police arrests some person on the accu sation of a crime for which he is liable to be tried before the special p criminal Court, the arrested peraon has the constitutional right to be defended by oouruel at the trial before the special criminal Court in respect of the offence for which be was arrested. It bas also been\n\nsuggested that the trial of an offeflllC before the Nyaya Panchay.tt u akia to an action for recovery of money and as an arrested person has no constitutional right to be defended by coWlS81 in the action for recovery of money, so also.he has no such right in a trial of an G offenee before the Nyaya P&ndlayat. We are unab(e to accept this line of reasoning. A person anested on the accusation of a crime\n\nbas the constitutional right to be defended by counael at a subseq11ent trial of the crime for which he is arrested. He cannot. therefore, claim this right in a su'9equent aelion agaimt him for recovery of money, but he can claim this right in a subsequent trt.1 of H the offence before the Nyaya 12ncbayat\n\n(I) [19e3] R.O.R. !M.\n\nM.P. STATE v . .SOBHARAM (lk1t:hawat, J.) :l57\n\nAs soon as the respondents were arrested without warrants issued by a Court, they acquired the rights guaranteed by cl. (1) of Art. 22. It is true that they were subsequently released on bail and at the time of the trial before the Nyaya Panchayat they were not being detained. But the right attaching to them on their arrest conti' nued though they were not under detention at the time of the trial.\n\nThe right was not lost because they were released on bail.\n\nThe respondents were arrested otherwise than under a warrant issued by a Court on the accusation that they had committed crimes. Their arrests, therefore, satisfy the test laid down in Ajaib Singh's case('), and are within the purview of cl. (I) of Art. 22. We express no opinion on the question whether the test of an arrest c laid down in that case is exhaustive.\n\nWe may now briefly notice a few decisions under other Panchayat Acts. In Lal Bachan Singh v. Suraj Bali('), the Allahabad High Court held that a provision of the U. P. Panchayat Raj Act (26. of.1947) under which no counsel was permitted to appear in the Court of the Panchayati Adalat did not infringe any right of an accused who had not been arrested. In Gurdial Singh v. The State('), the Punjab High Court held that a provision of the Punjab Gram Panchayat Act (4 of 1953) under which the accused was not allowed to be defended by counsel of his cho'ce did not infringe any right under Art. 22. In Digambar Aruk v. Nanda Aruk('), the Orissa High Court held that no right1 of the accused was infringed by s. 94 of the Orissa Gram Panchayat Act (15 of 1948). which prohibited any legal practitioner from appearing before an Adalti Panchayat, having power to award a sentence of imprisonment in lieu of fine. The reports of the two last cases do not set out full facts. Presumably, in both cases the accused were not arrested at all, and if so, there could be no infringement of any right under Art. 22. We do not apprcve of these decisions if and so far as they might have held that the right of an arrested person to be defended by a legal practitioner of his choice before the Panchayati Adalat was not infringed by the provisions precluding such defence.\n\nWe, therefore, hold that s. 63 of the Madhya Bharat Panchayat Act, 1949 is violative of Art. 22(1) and is void to the extent it denies any person who is arrested the right to be defended by a legal practitioner of his choice in any trial of the crime for G which he is arrested.\n\nMost of the safeguards embodied in els. (!) and (2) of Art. 22 are to be found in the Code of Criminal Procedure. But the Con- . stitution makes the fundamental change that the rights guaranteed by els. (!) and (2) of Art. 22 are no longer at the mercy of the legislature. No legislature can enact a law which is repugnant to the\n\n(') [1953] S.C.R. 254. 1•) A.LR. 1925 All 924.\n\nI') A.LR. 1957 Punjab. 149. ( 4) A.T.R, 195i Orissa. 281.\n\nSUPREME COURT RF.PORTS\n\n[1966] BUPP. 8.!.'.H.\n\nConstitution. A pre-Constitution law which is inconsistent with the > provisions of Art. 22 is, to the extent of such inconsistency, void.\n\nThe next question is whether the trial and convictions were illegal. During the trial, the respondents never claimed that they should be defended by counsel. Had they wanted the assistance of counsel, the Nyaya Panchayat might have under s. 79(c) returned B the complaint for being filed before a magistrate. They were happy and content to be tried before the Nyaya Panchayat without the assistance of counsel. There was no occasion for enforcing the previsions of s. 63 against them. Even if s. 63 were repealed or struck down before the trial, they would not have engaged any counsel for their defence. The existence of s. 63 on the statute book did not cause them any prejudice. In the circumstances, the High Court C ought not to have quashed the trial and convictions.\n\nIn the result. we declare that s. 63 of the Madhya Bharat Panchayat Act is violative of Art. 22(1) of the Constitution, and is void to the extent that it denies any person who is arrested, the right to be defended by a legal practitioner of his choice in any trial of the crime for which he is arrested. Subject to this declaration, the D appeal is allowed, the order of the High Court is set aside and the convictions and sentences passed by the Nyaya Panchayat. Barwani are restored.\n\nORDER\n\nIn view of the majority, the Appeal is allowed, the judgment of the High Court is set aside and that of the Courts below is restored. •\n\n,)I", "total_entities": 151, "entities": [{"text": "STATE OF MADHYA PRADESH", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH", "offset_not_found": false}}, {"text": "SHOBHARAM AND ORS", "label": "RESPONDENT", "start_char": 25, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "SHOBHARAM AND ORS", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH, J.", "label": "JUDGE", "start_char": 83, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH*", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 103, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. 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{"document_id": "1966_1_259_264_EN", "year": 1966, "text": "STATE OF BIHAR\n\nS. K. ROY\n\nApril 25, 1966\n\n[M. HIDAYATULLAH AND V. RAMASWAMI, JJ.]\n\nCoal Mines Provident Fund and Bonus Schemes Act, 1948, Sec. 2(c)-\"Employer\"-meaning of-by reference to the meaning of an \"owner\", of a \"coal mine\"-as defined in Sec. 2, Mines Act, 1952.\n\nThe respondent owned a coke plant which originally belonged to a group of collieries but was later transferred to hni;. It was Situated adjacent to a coal mine on the surface land which formed part of the coal fields beneath which the coal mine was worked. The respondent did not mine or excavate coal himself nor carry on any operation for the purpose of obtaining coal. His coke plant was a bye-product Plant in which hard coke as well as some other byeproducts were manufactured.\n\nThe respondent was prosecuted under para 70 of the Coal Mines Provident Fund Scheme issued under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 (Act 46 of 1948) on a complaint that as an owner of a coal mine and an employer within the meaning of the Scheme, he had failed to pay certain contributions to the Provident Fund. Although he was convicted by the trying Magistrate and his appeal to the Sessions Judge dismissed, the High Court allov:ed a Revision Application and set aside the conviction.\n\nThe question .for consideration in the appeal to this Court was whether the respondent was an owner of a coal mine within the meaning of s. 2 of the Mines Act, 1952 and therefore an employer as defined by Section 2(e) of Act 46 of 1948. The expression \"coal mine\"\n\nin Section 2(b) of the Mines Act, 1952 means \"any excavation where any operation fOr the purpose of obtaining coal has been carried on and includes all works, machinery, tramways and sidings, whether above or below ground, in or adjacent to or belonging to a coal mine\".\n\nHELD: The respondent was not the owner of a coal mine within the meaning of Section 2(b)' of the Mines Act, 1952 and the High Court had rightly acquitted him. [264 C].\n\nThe expression\n\n11belonging to a coal mine\" is the controlling expression governing all aspects of the activities of the coal mine v .. rithin the definition of s. 2(b) and all subsidiary things such as works, machinery, tramways, and sidings are brought within the definition of the \"coal mine\" only if they appertain to the coal mine, that is to say, if they are under the same ownership. In order to carry out the legislative intention it is therefore necessary to substitute the conjunction \"and\" for the Conjunction \"or\" in the definition of a ' 1coal mine\" in s. 2(b) of the Act. [262 D-E].\n\nSection 2(b) of the Coal Mines Provident Fund and Bonus &hemes (Amendment) Act, 1965 and Ormond Investment Co. Limited v. Betts: 1928 A.C. 143, 156; referred to.\n\n260 SUPR<llE COURT REPORTS [1966] Sl:PP. R.U.R.\n\nCRJMl:-; AL APPELLATE J~RISDICTION: Criminal Appeal No.\n\nA 158 of 1965.\n\nAppeal from the judgment and order dated September 15, 1965 of the Rihar High Court in Criminal Revision No. 1326 of 1963.\n\nB R. H. Dhebar, V. 0. Malwju11 and B. R. G. K. Achar, for the appellant.\n\nN. C. Chatterjee, Supraka1h Ban11erjet and Sukumar Ghose. for the respondent.\n\nThe Judgment of the Court was delivered by\n\nRlllllllswami, J. The question of law presented for detennina- C tion in this appeal is whether the respondent-S. K. Roy-is the 'owner of a coal mine' within the meaning of s. 2(b) and 2(e) of the Coal Mines Provident Flllld and Bonus Schemes Act, 1948 (Act 46 of 1948), hereinafter lied the •Act'.\n\nThe respondent was prosecuted under para 70 of the Coal Mines Provident Fund Scheme (hereinafter caUed the 'Scheme') D for violation of els. (a), (d) and (f) of paragraph 70 read with paragraphs 33A, 38, 42 and 69A of the Scheme. An Inspector ap pointed under the Act filed a complaint against the respondent alleging that he was the owner of the Bhowra Coke Plant and that he !rad contravened certain provisions of the Scheme. It was alleged that the respondent had failed to pay the contribution for the Provident Fund, both employer's and employees' from April, 1960 E to November, 1960 and had failed to submit returns in Fonn \"H\" with corresponding declaration in Form \"A\" and the statement in Ponn •p• as provided under the Regulations. The respondent was held ilJilty by the trying Magistrate and was sentenced to pay a fine of Rs. 500 and, in default, to undergo 3 months' simple imprisonment under paragraph 70(a). The respondent went in appeal to the Sessions Judge, who dismissed the appeal and confinned the F sentence imposed by the Magistrate. The respondent filed a Revision Application in the Patna High Court which allowed the Revision Application and set aside the conviction and sentence imposed on the respondent holding that the Coke Plant owned by the respondent was not a Coal Mine within the meaning of the Scheme and that the Coke plant was not subject to the provisions of the Scheme and the respondent was not the owner of the mine within G the meaning of the Act and the Scheme.\n\nThe facts found or admitted in this case are: (I) The Bhowra Coke Plant originally belonged to the Bhowra Group of collieries owned by the Eastern Coal Company, but subsequently in or about the years 1945 to 1947 the Coke Plant was transferred by sale to the respondent, (2) The group of Bhowra Collieries was subse- H quently sold to the Bhowra Keo~ Colliuicll Limited, (3) The respondMt is the owner of the Coke Plant and the lessee of the\n\n_,,,, •. ;!\\·.\n\n:BtRAR v.\n\n~. X. ROY (Ru..truis1vnni£, .J.)\n\n.\\ land on which it stands on payment of certain royalty by way of the ground rent for the land, the lessor, at the relevant time, being the Bhowra Kankanee Collieries Limited owning the coal mine and coal field area, where the Bhowra Coal Mines are and the Coke Plant is situated, (4) The Coke Plant is not only adjacent to the coal mine but is also situated on the surface land, which forms part B of the coal fields which and beneath which the coal mine is worked by the Bhowra Kankanee Collieries Ltd., (5) The respondent does not carry on the work of any coal mine therein. he does not excavate any coal by carryjrg on any operation for the purpose of obtaining coal, (6) The coke Plant is a bye-product coke plant in which hard coke as well as some other bye-products are manufacc\n\ntured.\n\nThe question to be considered is whether, in this stale of facts, the respondent is the owner of a coal mine within the meaning of the Act and the Scheme.\n\nUnder s. 2(e) of the Act the expression \"Employer\" means \"the owner of a coal mine as defined in olause (g) of s. 3 of the Indian Mines Act, 1923\". The Indian Mines Act, .1923 has been repealed and substituted by the Mines Act 1952 (Act 35 of 1952).\n\nIn the latter Act the word \"owner\" has been defined in cl. (I) of s. 2. By virtue of s. 8 of the General Clauses Act, the definition of the word \"Employer\" in cl. (e) of s. 2 of the Act should be construed with reference to the definition of the word \"owner\" in ol. (I) of s. 2 of Act 35 of 1952, which repealed the earlier Act and re-enacted it (See also the decision of this Court in State of Uttar Pradesh v. M.P. Singh etc.(').) According to s. 2(1) of Act 35 of 1952 the word \"owner\", when used in relation to a mine, means \"any person who is the immediate proprietor or Jessee or occupier of the mine or of any part thereof and in the case of a mine the business whereof is being carried on by a liquidator or receiver, such liquidator or receiver ............ \". The expression \"coal mine\" is separately defined in cl. (b) of s. 2 of the Act which reads as follows:\n\n\"2. (b) 'Coal mine' means any excavation where any ope ration for the purpose of obtaining coal has been or is being carried on, and includes all works, machinery, tramways and sidings, whether above or below ground, in or adjacent to or belonging to a coal mine : Provided that it shall not include any part of the coal mine on which a manufacturing process is being carried on unless such. process is a process for coke-making or the dressing of minerals;\" As a matter of construction it must be held that all works, machin erj, tramways and sidings, whether above or below ground, in or adjacent to a coal mine will come within the scope and ambit of\n\n(1) [1960) 2 S.C.R: 605, A.I.R. 1960 R.C. 569.\n\n262 SUPRl; ME COliRT R!PORT8 [ l 966J BUPP. S.C.R.\n\nthe definition only when they belong to the coal mine. In other A words, the word \"or\" occurring before the expression \"belonging to a coal mine\" in the main definition has to be read to mean \"and''. Any other interpretation would lead to an anomalous ane\n\nstartling consequence. Any works, machinery, tramways and sidings which do not appertain to the coal mine in the sense of ownership cannot come within the meaning of the expression \"coal B mine\" as given in the first part of cl. (bl of s. 2 of the Act. They would come by way of subsidiary works, machinery or the like if they appertain to and belong to the coal mine in the sense of carrying on excavation work by doing the operation for the purpose of obta!ning coal. Suppose, for example, in a coal field area, the lessee from the Government is working a mine, but the tramways and sidings have been set up by a railway company only for C the purpose of transport of coal. It cannot be imagined that the owner of the tramways or railway siding is the owner of the coal mine within the meaning of the Act. for the legislature could not have intended that the work of transport of coal will, in itself, constitute the working of a coal mine within the meaning of the Act. In our opinion, the express!on \"belonging to a coal mine\" is the controlling expression governing all aspects of the activities of D the coal mine within the definition of s. 2(b) and all subsidiary things such as works, machinery, tramways and sidings are brought within the definition of the \"ooal mine\" only if they appertain to the coal mine, that is to say. if they arc under the same ownership.\n\nWe are. therefore. of the opinion that in order to carry out the legislative intention it is necessary to substitute the conjunction \"and\" for the conjunction \"or\" in the definition of a \"coal mine\" E in s. 2(b) of the Act.\n\nIt is legitimate, in this connection, to refer to the expanded definition of the word \"coal mine\" in s. 2(b) of the Coal Mines Provident Fund and Bonus Schemes (Amendment) Act, 1965 (Act 45 of 1965) which reads as follows:\n\n\"12l for clause (b), the following clause shall be substituted, namely:-\n\n(bl 'coal mine' means any excavation where any operation for the purpose of searching for or obtaining coal has been or is being carried on. and include~\n\nIi) all borings and bore holes;\n\n(ii) all shafts. in or adjacent to and belong to a coal ; t-- mine, whether in the course of being sunk or not;\n\n(iii) all levels and inclined planes in the course of being driven; H\n\nBIHAR v. s. K. ROY (Ramaswami, J.) 263\n\n(v) all conveyors or aerial rope-ways provided for bringing into or removal from a coal mine of coal or other articles or for the removal of refuse therefrom;\n\n(vi) all adits, levels, planes, machinery, works, railways, tramways and sidings, in or adjacent to and belonging to a coal mine;\n\n(vii) all workshops situated within the precincts of a\n\ncoal mine and under the same management and used for purposes connected with that coal mine or a number of coal mines under the same management;\n\n• • • • • •\n\n(ix) all power stations for supplying electricity for the purpose of working the coal mine or a number of coal mines under the same management;\n\n(x) any premises for the time being used for depositing refuse from a coal mine, or in which any operation in connection with such refuse is being carried on, being premises exclusively occupied by the employer of the coal mine;\n\n• • • • I ' • •\n\n(xiii) any premises in or adjacent to and belonging to a coal mine, on which any plant or other machinery connected with a coal mine is situated or on which any process ancillary to the work of a coal mine is being carried on;\" It should be noticed that in sub-cl. (vi) it has been provided that F the word \"coal mine\" includes all adits, levels, planes, machinery, works, railways, tramways and sidings in or adjacent to and belonging to a coal mine. Similarly, in cl. (vii) it includes \"all workshops situated within the precincts or a coal mine and under the same management and used for purposes connected with that coal mine or a number of coal mines under the same management\".\n\nAgain, cl. (ii) of the amended s. 2(b) states that the word \"coal G mine\" includes \"all shafts, in or adjacent to and belonging to a coal mine, whether in the course of being sunk or not\". Similarly,\n\ncl. (xiii) of s. 2(b) provides that the word \"coal mine\" includes \"any premises in or adjacent to and belonging to a coal mine, on which any plant or other machinery connected with a coal mine is situated or on which any process ancillary to the work of a coal B mine is being; carried on\". In our opinion, the change in the language of s. 2(b) of the earlier Act brought about by the amending Act (Act 45 of 1965) was not meant to bring about a change\n\nL/S5CI-19\n\n23'. 8U1'.IUl:lfE OOUl\\T UPOl\\T8\n\n(1966) SUPP. l.C.11.\n\nof law in this respect but was meant to fix a proper interpretation A upon the earlier Act. It is a well-recognised principle in dcalina with matters of construction that subsequent legislation may be looked at in order to see what is the proper interpretation to be put upon the earlier Act where the earlier Act is obscure or ambiguous or readily capable of more than one interpretation. (See Ormond\n\nInvestment Co. Ltd.'. Betts(').) B\n\nFor the reasons expressed, we hold that the respondent is not the owner of a coal mine within the meaning of s. 2(b) of the Act and the High Coun has rightly acquitted the respondent of the\n\nol'fences alleged ai\\ainst him under the Scheme. We a.ccordiogly dismi\" this appe~I.\n\nApptal dismisseil.\n\n(') ( 1928] A.C. t'3 at p. Uil.", "total_entities": 41, "entities": [{"text": "STATE OF BIHAR", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "STATE OF BIHAR", "offset_not_found": false}}, {"text": "S. K. ROY", "label": "RESPONDENT", "start_char": 16, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "S. K. ROY", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 44, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH*", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ.", "label": "JUDGE", "start_char": 64, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "V. 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{"document_id": "1966_1_270_279_EN", "year": 1966, "text": "VERUAREDDI RAMARAGHA VA REDDY AND. ORS.\n\n' '. v.\n\nKONDURU SESHU REDDY AND 2 ORS,,;,;< .. '' ·-· .. ... ''• .. April 26, 1966.\n\n•.T[K.' SUBBA RAo AND V> RAMASWAMJ;.JJ.J: \" r.: ~''\"'''\n\n·:~ '.,' • •' I~ -\n\n;, •/~-'••I Specific Relief Act (1 of.1877); s, 42-Suit by worshipper for dc• laration that compromise decree is not binding on temple-Suit, if, barred. · ' · • \"\n\nMadras Hindu ReligiOOS Endciw;,; ents Act (2 o( 1927), s:· 84(2)- c} Petition for declaration that properties belonged to .petitionerand not to temple-If maintainable.\n\n- / • . - _. . . ''. • '..\n\n- ! ·:; ·- - ·- • l .,./The appellants filed an original petition in the , District Court under s. 84(2) of the Madras Hindu Religious Endowments Act; 1927,.' for setting aside an order of the Endowments Board that a temple was a public temple and for a declaration that it was a private, temp!e. The Commissioner of the Endowments Board nd a worshioper were the contesting respondents to the petition. Pending its dispo-\n\nD . sal the 1927. Act. was repealed by the Hindu Religious and Charitable Endowments Act of 1951. After the passing of the new Act the netition was amended by the addition of a prayer for a further declaration that the properties in dispute were the personal property of the appellants' family. Thereafter, a compromise decree between the appellants and the Commissioner was passed. by which it was declared that the temple was a public temple, that the properties were the personal properties of the aonellants but that the aoP\"l- E lants v.'E!re liatle to make annual payments in cash and kind to the temple for its maintenance. The worshipper, who was not a party to the compromise decree, filed the oresent suit for a declaration that the compromise decree vias not binding on the temple.\n\nOn the questions whether: (i) the suit was not barred by the provisions of s. 42 of the Specific Rellef Act, 1877, and (ii) the compromise decree was invalid.\n\nHELD: (i) Section 42 of the Specific Relief Act i~·not exhaus- F tive of the cases in which a declaratory decree may be made and courts have power to grant such a decree independently of the requirements of the section. The relief sought for in the present case was for a declaration that the compromise decree was null and void.; Such a declaration is in itself a substantial relief and has imme- te coercive effect and the deity would be restored to its rights in the trust properties. The suit fell outside the purview of s. 42 G , and would be governed by the general provisions of the Civil Procedure Code and was therefore maintainable even though the worshipper was not suing as a perolon entitled to any legal character or to a?y right as to anv pmoerty as required by s. 42 of the Specific Relief Act. [276 E; 277 F-G] ·\n\nCase law referred to.\n\n(ii) The compromiSe decree was not valid and binding on the B\n\ntempi~, because, the deity was not a P.~Y to.it.throush ;; ny repreccntative. · · -\n\n- .. ; ·•\n\n. . '\n\nP.AMARAGHAVA v. SilER!lU (Ramaswami, J.) 271\n\nThough under s. 20 of the 1927 Act the Commissioner was vested with the power of superintendence and control over the temple, it does not mean that he has authority to represent the deity in proceedings before the District> Judge under s. 84(2) of the Act.\n\nFurther, the compromise decree was beyond the scope of the proceedings, because, a declaration that the properties in dispute were the personal properties of the appellants' family and not of t1'e temple, was outside the purview of s. 84(2). [278 A-B, F, HJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 265 of 1964.\n\nAppeal from the judgment and order dated August 7, 1962 of the Andhra Pradesh High Court in Appeal Suit No. 312 of 57.\n\nF. Babula Reddy, K. Ra; endra Chaudhuri and K. R.\n\nChaudhuri, for the appellants.\n\nP. Rama Reddy and A. V. V. Nair, for respondent No. 1.\n\nT. V. R. Tatachari, for respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. This appeal is brought by certificate on behalf of the defendants against the judgment of the High Court of Andhra Pradesh dated August 7, 1962 in Appeal Suit No. 312 bf 1957.\n\nIn the village of Varagali, in the district of Nellore, there is a temple in which is enshrined the idol of Sri Kodandaramaswami.\n\nThe temple was built in the middle of the last century by one Burla E Rangareddi who managed the affairs of the temple and its properties during his life-time: After his death, his son, Venkata Subbareddy was in management. By a deed dated August 19, 1898 Venkata Subbareddi relinquished his interest in the properties in favour of one Vemareddi Rangareddi whose family members are defendants I to 5. The plaintiff filed a petition before the Assistant Commissioner for Hindu Religious Endowments, Nellore, alleging F mismanagement of the temple and its properties by the first defendant. Notice was issued to the !st defendant to show cause why the -temple properties should not be leased out in public auction and the first defendant contested the application alleging that the properties were not the properties of the temple but they belonged to his family. _After enquiry, the Assistant Commissioner submitted a report to the Hindu Religious Endowments Board, Madras, re- G commending that a scheme. of management may be. framed for the administration .of the temple and its properties. The Board thereafter commenced proceedings for settling a scheme and issued notice to the !st defendant .to state his objections. The 1st defendant refferated his plea _that the temple was not a public temple.\n\nThe Board hdd an enquiry and by its order dated October 5, 1949 B held that the tempie was a public one. On January 18, 1950 the . !st defendant filed O:P.- nu. 3 of 1950 011 the file of the District\n\nJudge; Nellore (!}for seftiiig aside the order of the Board dated\n\n272 BuPREHE COURT REPORTS\n\n(J 966) BUPP. 8.0.R,\n\nOctober 5, 1949 declaring the temple of Sri Kodandaramaswarni- .& vari as a temple defined in s. 6, cl. 17 of the Act, (2) for a declaration that the temple was J private temple and (3) for a declaration that the properties set out in the schedule annexed to the petition were the personal properties of his family and they did not constitute the tern pie properties. Originally, the Commissioner. Hindu Religioos Endowment Board, Madras was impleaded as the sole JI respondent in the petition. The present plaintiff later on got himself impleaded as the 2nd respondent therein. Both the respondents contested the petition on the ground that the temple was a public temple and that the properties mentioned in the schedule were the properties of the temple and not the persona.! properties of the !st defendant For reasons which are not apparent on the record the C petition was not disposed of for a number of years. In the meantime Madras Act II of 1927 was repealed and the Hindu Religious and Charitable Endowments Act of 1951 was enacted. Then came the formation of the State of Andhra Pradesh. By reason of these changes the Commissioner of Hindu Religious Endowments in the State of Andhra Pradesh was impleaded as the !st respondent to the petition. Thereafter, there was a compromise between the D petitioners I to 5 on the one hand and the Commissioner, the 1st respondent on the other. The District Judge, Nellore recorded the compromise and passed a decree in terms thereof by his order dated October 28, 1954.\n\nThe material clauses of the compromise decree, Ex. B-11 are as follows:\n\n\"I. That Sri Kcdandarama>wami temple, Varagali, be and hereby is declared as a temple as defined in section 6. clause 17 of the Hindu Religious ar.d Charitable Endowments Act;\n\n2. That petitioners I to 4 be and hereby are, declared as the present hereditary trlllitees of the said temple.\n\n3. That the properties set out in schedule A filed herewith be and hereby are, declared as the personal properties of the family of the petitioners subject to a charge as noted below;\n\n4. That petitioners I to 4 their heirs. successors administrators and assignees do pay to the said temple for its maintenance 12! putties of good Mologolukulu paddy and Rs. 600 !- every year by the 31st of March;\n\n5. That the said I 2! putties of good Mologolukulu paddy and Rs. 600 !- due every year be a charge on the lands mentioned in Schedule A given hereunder;\n\n. . 6. That the petitioners l to 4 and their successors, heirs.and assign~ be liable to pay 12! puttiee of Molo-\n\n( ~-\n\nHHIARAGHAVA v. SF, SJlU (Ramaswami, J,)\n\ngolukulu paddy and Rs. 600 every year whether the lands yield any income or not.\n\n10. That the H. R. & C. E. Commissioner be entitled to associate non hereditary trustees not exceeding two, whenever they consider that such appointment is necessary and in the interests of the management.\n\n11. That the Managing trustee shall be one of the four hereditary trustees or their successdrs in title only and not the non hereditary trustees;\n\nIS. That the right of the 2nd respondent to agitate the matter by separate proceedings will be unaffected by the terms of this compromise to which he is not a party.\"\n\nIt is apparent from the terms of the compromise decree that the temple was declared to be a public temple as defined in s. 6, cl. 17 of the Hindu Religious and Charitable Endowments Act and D that the properties set out in Sch. A annexed to the compromise petition were declared to be the personal properties of defendants 1 to 5. The decree created a liability on their part to deliver to the temple for its maintenance 12! putties of paddy and pay Rs. 600/- cash every year. The present suit was instituted on October 31. 1955 for a declaration that the provision in the compromise decree that the lands mentioned in tqe schedule were the personal proper- E tics of defend.ants 1 to 5 and not the absolute properties of the temple, was not valid and binding on the temple. Defendants 1 to 5 objected to the suit on the ground that it was not open to the plaintiff to seek a declara.tion that a part of the decree was not binding but the plaintiff should have directed his attack against the entirety of the decree. The trial court dismissed the suit on the ground that ihe suit was defective and that s. 93 of the Hindu J Religious and Chariiable Endowments Act of 1951 was a bar to the institution of the suit. Against the decree of the trial court the plaintiff preferred an appeal-A S. 312 of 1957 to the High Court of Andhra Pradesh. The plaintiff also filed C.M.P. no. 6422 of 1962 praying for amendment of the plaint the effect that the compromise decree in 0. P. no. 3 of 1950 was not valid and binding on the temple. After hearing defendants I to 5 the High Court allowed the 11 amendment sought for by the plaintiff and held that the amendment cured :the defect with regard to the prayer for a declaration to have the. compromise decree set aside 11artially. The High Court further held that s .. 93 of the Hindu Religious and Charitable Endowments Act. was not a bar. to the suit. and s: 42of the Specific Relief Act wa's not exhaustive and the suit was therefore maintain- B able. In the resuit, the High court allowed the appeal and remanded the. SUitt.O: the trial., cO\\ll for dispoSiI'lg the s; ime On the .remai!l• jng fssueq .. \" ,. ·,- - · · • :... · .. , · ·· ·- · ·~\n\n274 Bl'l'BKMB COURT REPORTS\n\n(1966) SUPP. B.C, l\\,\n\nIt was contended, in the first place, on behalf of the appcl- A !ants that declaratory suits are governed exclusively by s. 42 of the Specific Relief Act and if the requirements of that section are not fulfilled no relief can be granted in a suit for a mere declaration.\n\nIt was submitted that the plaintiff must satisfy the court, in such a suit, that he is entitled either to any legal character or to any right in any property. It was argued for the appellants that the plaintiff B has brought the suit as a mere worshipper of the temple and that he has no legal or e4uitable right to the properties of the temple which constitute the subject-matter of the suit. It was pointed out that the plaintiff has not asked for a declaration of his legal character as a worshipper of the temple but he has asked for the setting aside of the compromise decree in 0. P. no. 3 of 1950 with regard to the nature of the temple pruperties. It was contended that in a 0 suit of this description the conditions of s. 42 of the Specific Relief Act are not satisfied and the suit is, therefore, not maintainable.\n\nThe first question to be considered in this appeal is whether the suit is barred by the provisions of s. 42 of the Specific Relief Act which states:\n\n\"42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying. or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.\n\nExplanation-A trustee of property is a 'perscn interested to deny' a title adverse to the title of some one who is not in existence. and for whom, if in existence, he would be a trustee.\"\n\nThe legal development of the declaratory action is important. 1 Formerly it was the practice in the Court of Chancery not to make declaratory orders unaccompanied by any other relief. But in exceptional cases the Court of Chancery allowed the subject to sue the Crown through the Attorney-General and gave declaratory judgments in favour of the subject even in cases where it could not give full effect to its declaration. In 1852 the Court of Chancery Procedure Act was enacted and it was provided by s. 50 of that Cl Act that no suit should be open to ohjection on the ground that a merelv declaratory decree or order was sought thereby, and it would be lawful for the court to make binding declarations of right without )!ranting consequential relief. Bys. 19 of Act VI of 1854, s. 50 of the Chancery Procedure Act was transplanted to India and made applicable to the Supreme Courts. With regard to courts JI other than the courts established by Charters the procedure was cOdified in India for the first time by the Civil Procedure Code.\n\n) ~-\n\nI ~\n\nRAMAMGlfAVA ,,_ SESJITJ (Ramaswami, J.) 275\n\nA 1859, where the form of remedy under s. 19 of Act VI of 1854 was incorporated as s. 15 of that Act which stood as follows:\n\n\"No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the civil Courts to make binding declarations of right without granting consequential relief.\"\n\nIn 1862 the provisions of the Civil Procedure Code of 1859 were extended to the courts established by Charters when the Supreme Courts were abolished and the present High Courts were established. In 1877 the Civil Procedure Code, 1859 was repealed and the Civil Procedure Code of 1877 was enacted. The provision regarding declaratory relief was transferred to s. 42 of the Specific Relief Act which was passed in the same year. This section which is said to be a reproduction of the Scottish action of declarator, has altered and to some extent widened the provisions of s. 15 of the old Code of 1859.\n\nIt was argued on behalf of the appellants that, in the present case. the plaintiff was suing as a worshipper of the temple and that he was not suing as a person entitled to any legal character, or to any right as to any property and so the suit was barred by the provisions of s. 42 of the Specific Relief Act.\n\nUpon this argument we think that there is both principle and authoTity for holding that the present suit is not governed by s. 42 of the Specific Relief Act. In Fischer v. Secretary of State for India in Council, (') Lord Macnaghten said of this section:\n\n\"Now, in the first place it is at least open to doubt whether the present suit is within the purview of s. 42 of the Specific Relief Act. There can be no doubt as to the origin and purpose of that section. It was intended to introduce the provisions of s. 50 of the Chancery Procedure Act of 1852 (15 & 16 Viet. c. 86) as interpreted by judicial decision. Before the Act of 1852 it was not the practice of the Court in ordinary suits to make a declaration of right except as introductory to relief which it proceeded to administer. But the present suit is one to which no objection could have been taken before the Act of 1852.\n\nIt is in substance a suit to have the true ccmstruction of a statute declared and to have an act done in contravention of the statute rightly understood pronounced void and of no effect. That is not the sort of declaratory decree which the framers of the Act had in their mind.\"\n\nIn Pratab Singh v. Bhabuti Singh,(') the appellants sued for a declaration tha.t a compromise of certain pre-emption suits and decrees passed thereunder made on their behalf when they were\n\n(') 26 I.A. 16.\n\n(') 40 I.A. 182.\n\nSUPREME OOURT REPORTS\n\n[1966) SUPP. S.C.R,\n\nminors were not binding on them. having been obtained by fraud A and in proceedings in which they were practically unrepresented.\n\nThe Subordinate Judge having decreed the suit on appeal the members of the Court of the Judicial Commissioner d<llered upon the question whether the declaration sought should be refused as a matter of discretion under s. 42 of the Specific Relief Act. Before the Judicial Committee it was contended for the respondent that B . the suit having been liled for the purpose of obtaining a declaratory ---.( decree only was bad in form inasmuch as it did not pray that the decree should be set aside; but that, assuming that it was rightly framed in asking only for a declaratory dec.ee, the Court had a discretion as to the granting or refusing such a declaration. The Judicial Committee observed that s. 42 of the Specific Relief Act did not apply to the case and that it was not a question of excrcis- C ing a discretion under that section; and they gave to the appellant a decree setting aside the decree complained of and declaring that the agreement of compromise and the decree complained of were not binding upon the appellants or either of them and that they were entitled to such rights as they had before the suit was dismissed on December 15, 1899.\n\nIt appears to us that a decree of the character which has been sought by the plaintiff in this case is not one as to which the additional powers conferred by the Act of 1852 were required by the Court of Chancery. The injury complained of was that the Court has, by recording the compromise in 0.P. no. 3 of 1950, deprived\n\nthe deity of its present title to certain trust properties. The relief which the plaintiff seeks is for a declaration that the compromise E decree was null and void and if such a declaration is granted the deity will be restored to its present right' in the trust properties. A declaration of this character, namely, that the compromise decree is not binding upon the deity is in itself a substantial relief and has immediate coercive effect. A declaration of this kind was the subject matter of appeal in Fischer v. Secretary of State for India in co1111• cil(') and falls outside the purview of s. 42 of the Specific Relief Act F and will be governed by the general provisions of the Civil Procedure Code likes. 9 or 0. 7. r. 7.\n\nOn behalf of the respondents reliance was placed on the decision of the Judicial Committee in Sheoparsa11 Singh v.\n\nRamnandan Prasad Singh('). In that case. the plaintiffs had prayed\n\nfor a declaration that a will, probate of which had been granted, <r, was not genuine and the Judicial Committee pointed out that under j.... s. 42 a plaintiff has to be entitled to a legal character or to a right as to property and that the plaintiffs could not predicate this of themselves as they described themselves in the plaint as entitled to the estate in case of an intestacy, whereas, as things stood, there was no intestacy, since the will had been affirmed by a Court exercising It'. ---·-----·--------·------·-. ------------·-\n\n(') 26 I.A. 16. (') I.t .. U. 43 Cod. 694 (P.C.)\n\n• F\n\nHAM4EAGHAVA v. SESHU (Rama•wanii, .J.) 277\n\nappropriate jurisdiction. The suit was, indeed, nothing more than an attempt to evade or annul the adjudication in the testamentary suit. The suit was held to fail at the very outset because the plaintiffs were not clothed with a legal character or title whii:n would authorise them to ask for the declaratory decree sought by their plaint. There is no reference in this case to the previous decision of the Judicial Committee in Fischer v. Secretary of State for India in Council('). In our opinion, the decision of the Judicial Committee in Sheoparsan Singh v. Ramnandan Pnasad Singh(') should be explained on the ground that the will which was sought to be avoided had been affirmed by a Court exercising appropriate jurisdiction and as the propriety of that decision could not be impeacfied in subsequent proceedings, the plaintiffs could net sue, not being reversioners.\n\nThe legal position is also well-established that the worshipper of a Hindu temple is entitled, in certain circumstances, to bring a suit for declaration that the alienation of the temple prcperties by the de ju re Sheba it is invalid and not binding upon the temple. If a Shebait has improperly alienated trust property a suit can be brought by any person interested for a declaration that such alienation is not binding upon the deity but no decree for recovery of possession can be made in such a suit unless the plaintiff in the suit has the present right to the possession. Worshippers of temples are in the position of cestuui que trustent or beneficiaries in a spiritual sense (See Vidhyapurna Thirthaswami v. Vidhyanidhi ThirthaswamO (\"). Since the worshippers do not exercise the deity's power of suing to protect its own interests, they are not entitled to recover possession of the property improperly alienated by the Shebait, but they can be granted a declaratory decree that the al; enation is not binding on the deity (See for example, Kalyana Venkataramana Ayyangar v.\n\nKasturiranga Ayyangar(') and Chidambaranatha Thambiran v. Nal/asiva Mudaliar)('). It has also been decided by the Judicial Committee in Abdur Rahim v. Mahomed Barkat Ali(') that a suit for a declaration that property belongs to a wakf can be maintained by Mahomedans interested in the wakf without the sanction of the Advocate-General, and a declaration can be given in such a suit that the plaintifl' is not bound by the compromise decree relating to wakf properties.\n\nIn our opinion, s. 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratm-y decree may be made and the courts have power to grant such a decree independently of the requirements of the section. It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of s. 42 of the Specific Relief Act.\n\n(') 28 I.A. le. {a) I.L.R. 27 Mad. 435, 451. (') I.L.R. 41 Mad. 124.\n\n(') I.I,.R. 43 Cal. 694 (P.O.)\n\n(') I.L.R. 40 Mad. 212.\n\n(') 55 I.A. 96.\n\n278 SOPREJlE OOURT REPORTS\n\n(1966) BUPP. B.C.R.\n\nThe next question presented for determination in this case A is whether the compromise decree is invalid for the reason that the Commissioner did not represent the deity. The High Court has taken the view that the Commissioner could not represent the deity because s. 20 of the Hindu Religious & Charitable Endowments Act provided only that the administration of all the endowmets B shall be under the superintendence and control of the Commissioner. Mr. Babula Reddy took us through all the provisions of the Act but he was not able to atisy us that. the Commissioner ha.d authority to represent the delly m the 1ud1cial proceedings. It 1s true that under s. 20 of the Act the Commissioner is vested with the power of superintendence and control over the temple but that does not mean that he has authority to represent the deity in proceedings before the District Judge under s. 84(2) of the Act. As a C matter of law the only person who can represent the deity or who can bring a suit on behalf of the deity is the Shebait, and although a deity is a juridical person capable of holding property. it is only in an ideal sense that property is so held. The possession and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait. but where, however, the Shebait is negligent or where the Shebait himself is the D guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties. It is open, in such a case, to the deity to file a suit through some person as next friend for recovery of possession of the property improperly alienated or for other relief. Such a next friend may be a person who is a worshipper of the deity or as a prospective Shebait is legally in E terested in the endowment. In a case where the Shebait has denied the right of the deity to the dedicated properties, it is obviously desirable that the deity should file the suit through a disinterested next friend, nominated by the court. The principle is clearly stated in Pramath Nath v. Pradymna Kumar.(') That was a suit between contending shebaits about the location of the deity, and the Judicial Committee held that the will of the idol on that question must be F respected, and inasmuch as the idol was not represented otherwise than by shcbaits. it ought to appear through a disinterested next friend appointed by the Court. In the present case no such action was taken by the District Court in 0. P. no. 3 of 1950 and as there was .no representation of th~ deity in that judicial proceeding it is\n\nmmfest that the compromise decree cannot be binding upon the deity. It was also contended by !\\fr. P. Rama Reddy on behalf of G respondent no .. 1 that the compromise decree was beyond the scope of the proceedmgs m O.P. no. 3 of 1950 and was therefore invalid. In our opinion. this argument is well-founded' and must 'prevail. The proceeding was brought under s. 84(2) of the old Act <Act II of 1927) for setting aside the order of the Board dated October 5~.:49 declaring the temple of Sri Kodandaramaswami as a temple H\n\n(1) J.J •. R. 52 C&I. 809. (P. C.)\n\n. '\n\nP.AMARft.OliAVA v. SESHU (Rama5wami, J.) 279\n\ndefined in s. 6, cl. 17 of the Act and for a declaration that the temple was a private temple. After the passing of the new Act, namely Madras Act 19 of 1951, there was an amendment of the original petition and the amended petition included a prayer for a further declaration that the properties in dispute are the personal properties of the petitioner's family and not the properties of the temple.\n\nSuch a declaration was outside the purview of s. 84(2) of Madras Act II of 1927 and could not have been granted. We are, therefore, of the opinion that the contention of respondent no. 1 is correct and that he is entitled to a declaratory decree that the compromise decree in O.P. no. 3 of 1950 was not valid and was not binding upon Sri Kodandaramaswami temple.\n\nWe have gone into the question of the validity of the compromise decree because both the parties to the appeal invited us to decide the question and said that there was no use in CIUr remanding the matter to the trial court on this question and the matter will be unduly protracted.\n\nFor the reasons expressed, we hold that the decree passed by the trial court should be set aside and the plaintiff-respondent no. 1 should be granted a declaratory decree that the compromise decree in O.P. no. 3 of 1950 on the file of the District Court Nellore is not valid and binJing on Sri Kodandaramaswami temple. Subject to this modification, we dismiss this appeal. The parties will bear their own costs throughout.\n\n'Appeal dismissed.\n\nL/85801-20", "total_entities": 73, "entities": [{"text": "VERUAREDDI RAMARAGHA VA REDDY AND. ORS", "label": "PETITIONER", "start_char": 0, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "VERUAREDDI RAMARAGHAVA REDDY AND ORS", "offset_not_found": false}}, {"text": "KONDURU SESHU REDDY AND 2 ORS", "label": "RESPONDENT", "start_char": 50, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "KONDURU SESHU REDDY AND ORS", "offset_not_found": false}}, {"text": "K.' SUBBA RAo", "label": "JUDGE", "start_char": 131, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "K. 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{"document_id": "1966_1_27_37_EN", "year": 1966, "text": "\\..l\n\nDALCHAND & ORS.\n\nDELffi IMPROVEMENT TRUST (NOWI DELHI DEVELOPMENT\n\nAUTHOIUTY)• NEW DELHI\n\nMarch 24, 1966\n\n(K. N. WANCHOO, M. H!DAYATULLAH AND J.C. SHAH, JJ.] United Provinces Town Improvement Act (8 of 1908), ss. 23(a), 24 (h} and 32-Scheme of Town expansion by Improvement Trust- Supplementary scheme to fulfil requireme.nts of company unde! . he Original Scheme-Validity-If Act authorised compulsory acquisition of land-Procedure under Part VII Land Acquisition Act, 1894 if had to be followed.\n\nThe Delhi Improvement Trust (set up under the U.P. Town Improvement Act (8 of 1908) extended to the territory of Delhi) prepared and notified under the Act an industrial development scheme intended to secure the growth of an industrial area so as to induce a flow of population away from the crowded parts of Delhi. Land in the area was to be developed by the Trust and a part of the land was to be allotted to industrial concerns fot construction of industrial building and the rest for construction of residential and other buildings, Under the scheme one particular company was to be allotted a certain acreage of land but the land covered by the scheme was found inadequate for this purpose. A supplementary scheme was therefore notified modifying the original scheme and providing for the acquisition of an additional area of land, to be sold to the company, Under the terms of sale this additional area wa• to be developed by the Company, The appellants, whose lands were sought to be compulsorily acquired under the supplementary scheme, sued the Trust challenging the legality of the scheme and the award made in the acquisition proceedings. The Subordinate Judge decreed the suit but on appeal the High Court reversed this decision.\n\nIn the appeal to this Court three questions fell for determination: (i) whether acquisition of land of the appellants under the supplementary scheme was for the purposes of the Act; (ii) whether for executing the supplementary scheme the Trust had power to compulsorily acquire land; and (hli) whether land of the appellants could be acquired only in the manner provided by Part VII of the Land AcquiSition Act, 1894.\n\nHELD: The High Court was right in refusing to decree the suit.\n\n(i) The .original and supplementary schemes had to be regarded as one composite scheme conceived in the interests of industrial development. The original scheme was primarily a town expansion scheme within the meaning of the Act; and the supplementary scheme was framed for the further progress of and to effectuate the purpose of the original scheme Acquisition of land for industrial development and making provision for the residence of employees in the industries would clearly fall within the terms of s.24(h), read with s.32.\n\nThe provisions of the Act would not justify acquisition of land with a view to handing it over to an industrial concern for private gain. But this was not the position in the present case, as a scheme\n\n8Ul'RF.llE COURT REPORTS [1966] 8Ul'P. 8.C.Jl.\n\nwhich contemplated acquisition of land for affectuating the object of the original scheme was not a device to acquire land for the private gain of an industrialist. The general supervision and control over the execution of the supplementary scheme, as over the original scheme, was retained by the Trust and the Compnay was to develop the' land subject to control under the Town Planning Scheme. [35 C, F, G, H]\n\n(ii) Power to acqufre land compulsorily was conferred by s.23\n\n(a) which in terms authorised acquisition by purchase, exchange or otherwise of any property necessary or affected by the execution of the scheme, and this provision could be incorporated in any of the\n\nimprovement schemes of the type mentfoned in s.:l<t. The power could also be exercised under ss.32, 55 and 5G.\n\nUnder the provisions relating to other classes of schemes express provision with regard to acquisition of land was made and such express provision was absent in s.32 dealing with town expansion schemes. But that would C not justify the inference that the provisions of s.23(a) relating to acquisition of land necessary for or afTected by the execution of the scheme were not available in sanctioning a town expansion scheme. Were it otherwise, s.23(a) would not have application to any scheme at all [36 B-E]\n\n(iii) The provisions of Part VII of the Land Acquisition Act, 1894, did not have to be followed, for, in this case, land was not to D be acquired for the company: it was to be acquired for carrying out an industrial development scheme. Mere inclusion of a provision tor sale of land comprised in the scheme did not vitiate the scheme.\n\nIf the Act was valid and could be resorted to for compulsorily acquiring land, the awards made under the Act were not open to challenge on the ground that if another scheme of acquisition had been resorted to, more compensation could have been paid to the appellants. [36 F. G: 37 Bl\n\nGYIL APPELLATE JURISDICTION: Civil Appeal No. 1107 of 1963.\n\nAppeal from the judgment and order dated September 8, 1959 of the Punjab High Court (Circuit Bench) at Delhi, in Civil Regular Appeal No. 17-D of 1954.\n\nB. D. Jain, for the appellants.\n\nN. S. Bindra and B. R. G. K. Achar. for the respondent.\n\nThe Judgment of the Court was delivered by\n\nShah, J. By a notification issued on March 2, 1937 under\n\ns. 7 of the Delhi Laws Act, 13 of 1912, the Government of India G extended, subject to certain modifications. the United Provinces Town Improvement Act. 8 of 1919. to the territory Clf Delhi, and thereafter set up an Improvement Trust under the Act for that territory. The Trust prepared an industrial development scheme with the object of relieving congestion by inducing a flow of population from the crowded parts of the town of Delhi to certain other B areas. Under the scheme land in those areas was to be developed and after construction of roads, storm water drains, street-Iightin11.\n\n__..... -\n\n....\n\nA refuse and sewage disposal works, schools, parks, playgrounds, dispensaries, weMare centres and police-station a part of the land was to be allotted to industrial concerns for construction of industrial buildings and the rest for construction of residential and other buildings.\n\nB The scheme was sanctioned under s. 42 of the Act by the Government of India, and was duly promulgated. Thereafter the Trust reso2ved in June 1942 to make a supplementary scheme as the land covered by the original scheme was inadequate. It appeared that the Trust had agreed to provide under the original scheme a block of land oomprising 268 acres of land to the Delhi Cloth & General Mills Co. Ltd.-hereinafter called 'the Company' C --on certain terms and conditions embodied in a resolution dated January 9, 1942, but the Trust was able to offer to the Company under the lay-out of the original scheme only 17 4.84 acres. It was therefore proposed by the Trust to modify the scheme as sanctioned and to provide for acquisition of an additional area of 103.16 acres under a supplementary scheme.\n\nD On July 18, 1942 notice under s. 36 of the Act was published in respect of the supplementary scheme for development of the industrial area, specifying the boundaries of the land in which the scheme was to be worked and inviting objections to the scheme. within one month from the date of publication. No objections were, it appears raised to the proposed supplementary scheme, and it was finally approved by resolution dated July 31, 1944, and was E notified under s. 42 of the Act on June 28, 1946. Land acquisition proceedings were then commenced under s. 58 of the Act and awards were made assessing compensation to be paid to the owners of the land for compulsory acquisition. In the scheme so notified was included an area of 13 bighas of land belonging to the appellants and that land was acquired.\n\nOn May 3, 1949 the appellants sued the Delhi Improvement Trust for a declaration that the awards were \"wrong and illegal and did not result in acquisition of the suit property\" and for an order restraining the Trust from taking possession of their lands under the awards and from interfering in any way with their enjoyment of the lands. The appellants in support of their claim contended that the notification extending the United Provinces Town Improvement Act, 8 of 1919, was invalid, that the Improve ment Trust was not lawfully constituted, that the industrial development schemes were invalid, that the Trust had no power to acquire lands for the purposes mentioned in the scheme, and that the resolutions and proceedings of the Trust being procedurally defective, the scheme \"was illegal\". The appellants also contended that the scheme was framed at the instance of and solely for the benefit of ~e. Company, since the land was intended to be given after acqms1t10n to that Company or to other industrialists for\n\nSUPREME COURT REPORTS\n\n(1966] 8'C1'P. 8.C.R.\n\ndevelopment by them for their own benefit. The Subordinate Judge, A Delhi, held that the Act was properly extended to the Delhi territory, that the scheme was valid and the Trust had power to acquire the land, but in the view of the Subordinate Judge there was \"nothing on the record to show that the area in suit\" was \"necessary for or\" was \"affected by the execution of this scheme,\" and that\n\n\"the Act does not authorise compulsory acquisition for purposes B of recoupment or for allotment to some company\". The Subordinate Judge accordingly decreed the suit as claimed by the appellants.\n\nIn appeal to the Senior Subordinate Judge with appellate powers the decree passed by the Trial Court was affirmed. In second appeal to the High Court of Punjab, Falshaw, J., reversed C the decree passed by the First Appellate Court. In the view of the learned Judge, since the original industrial area scheme framed in\n\n1940. was a valid scheme, acquisition of an additional area of land for. meeting the requirements of that scheme was a legitimate extension thereof and merely because the Trust had resolved to acquire land for sale to the Company after development. the scheme was not open to challenge. He also held that the acquisition not D being for the Company, Part VII of the Land Acquisition Act had no application and that the supplementary scheme was not invalid merely because the plan for development was to be worked out not by the Trust directly but by the Company under the general supervision and control of the Trust, and in accordance with the town planning scheme framed under s. 192 of the Punjab Municipal Act. The decree passed by Falshaw, J., was confirmed by a Division Bench of the High Court. With certificate granted by the E High Court, this appeal has been preferred.\n\nThe arguments in this case have ranged over a wide field, but in the main three que, tions of law fall to be decided: (() Whether acquisition of land of the appellants under the supplementary scheme was for the purposes of the Act; (2) whether for executing the supplementary scheme the Trust had power to compulsorily p acquire land; and (3l whether land of the appellants could be acquired only in the manner provided by the Part VII of the Land Acquisition Act, 1894.\n\nThe Act as the preamble discloses was enacted with a view to make provision for the improvement and expansion of towns.\n\nChapter II of the Act deals with the constitution of Improvement G Trusts for carrying out the provisions of the Act. Chapter III deals with the proceedings of the Trust and Committees thereof. Chapter IV deals with different forms of improvement schemes. Section 23 describes in els. (a) to (p) matters which may be provided for in an improvement scheme. Clauses (a) & (g) thereof read as follows:\n\n\"(a) The acquisition by purchase, exchange, or otherwise of H any property necessary for or affected by the execution of the scheme.\"\n\n....\n\n\"(g) The sale, Jetting, or exchange of any property comprised in the scheme.\" By s. 24 it is provided that an improvement scheme shall be one of the following types, or may combine any two or more of such types, or of any special features of, that is to say,-\n\n(a) a general improvement scheme;\n\n(b) a re-building scheme;\n\n(c) a re-housing scheme;\n\n(d) a street scheme;\n\n(e) a deferred street scheme;\n\n(f) a development scheme;\n\n(g) a housing accommodation scheme; and\n\n(h) a town expansion scheme.\n\nSections 25 to 32 set out the conditions in which the different classes of schemes may be framed and provisions which may be made in those schemes. Provisions relating to development schemes in s. 30 and town expansion schemes in s. 32 alone are material.\n\nBy s. 30 els. (I) & (2) it is provided:\n\n\"(I) In regard to any area to which this Act is extended, the Trust may, from time to time, prepare a scheme of proposed public streets with plans showing the direction of such streets, the streets alignment and building line on each side of them, their intended width and such other details as may appear desirable.\n\n(2) When any such scheme has been notified under section 42 the street to which it refers shall be deemed to be projected public street.\" Restrictions are then placed upon the right of occupants of the buildings to erect, re-erect, add to or alter any building or wall, and provision is made for other related matters. Section 32 reads:\n\n\"(I) Whenever the Trust is of opinion that it is expedient and for the public advantage to control and provide for the future expansion of a municipality in any area to which this Act is extended, the Trust may frame a scheme (to be called a \"town expansion scheme\").\n\n(2) Such scheme shall show the method in whioh it is proposed to lay out the area to be developed and the purposes for which particular areas are to be utilized.\n\n(3) For the purposes of a town expansion scheme the provisions of clause (a) of sub-section (2) of section 40 shall not be applicable, but the Trust shall be required to supply such details as the State Government may consider necessary.\n\n(4) When any such scheme has been notified under section 42, if any person desires to erect, re-erect, add to or alter any building or wall within the area comprised in the said scheme, he shall apply to the Trust for permission to do so.\n\n82 Rl'PREME COURT REPORTS\n\n(1966] SUPP. S.C.R.\n\n(5) If the Trust refuses to grant permission to any person A to er7ct, re-erect, add to or alter any building or wall on his land m the aea. aforesaid, and if it does not proceed to acquire such land within one year from the date of such refusal, it shall pay reasonable compensation to such person for any damage sustained by him in consequence of such refusal.\"\n\nection 33 deals with the procedure to be followed in framing B improvement schemes. Section 36, i111er a/ia, deals with the prepa ration, publication and transmission of notices about the improve ment schemes. Section 38 deals with notice of proposed acquisition of land. Section 40 authorises the abandonment of and submission of the schemes for sanction to the State Government with such modifications as the Trust may consider necessary after consider C ing the objections or representations which may be received. Section 41 authorises the State Government to sanction with or without modification, or refuse to sanction, or return for reconsideration, any improvement scheme submitted to it under s. 40. Section 42 provides:\n\n\"(!) Whenever the State Government sanctions an improve ment scheme it shall announce the fact by notification, and D except in the case of a deferred street scheme, development scheme. or town expansion scheme. the Trust shall forthwith proceed to execute the same.\n\n(2) The publication of a notification under sub-section (!) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned.\"\n\nSection 43 provides for alteration in an improvement scheme before it had been carried into execution, subject to certain condi tions specified therein. Chapter V deals with the powers and duties\n\nof the Trust in respect of a scheme which has been sanctioned.\n\nSection 55 authorises the Trust to enter into an agreement with any person for the purchase. lease or exchange by the Trust of any land which the Trust is authorised to acquire or any interest in such r land. Section 56 provides that the Trust may, with the previous sanction of the State Government, acquire land under the provi sions of the Land Acquisition Act, 1894, as modified by the provi sions of the Act for carrying out any of the purposes of the Act.\n\nSection 58 provides that for the purpose of a(Xjuiring land under the Land Acquisition Act for the Trust, the Tribunal constituted\n\nunder s. 57 shall be deemed to be the Court, and the President of G I the Tribunal shall be deemed to be the Judge under the said Act subject to further modifications indicated in the Schedule, and that the award of the Tribunal shall be deemed to be the award of a Court under the Land Acquisition Act, 1894, and shall be final. At this stage, the material provisions of the Schedule referred to in ' 58 may be referred to. The Schedule amends the Land Acquisi B tion Act in certain respects. The expression \"local authority\" in s. 3(ee) of the Land Acquisition Act includes a Trust constituted\n\n, A\n\n' F\n\nunder the United Provinces Town Improvement Act, 1919. By\n\ncl. 2(1) the first publication of the notice of an improvement scheme under s. 36 of the Act is substituted for and has the same effect as publication in the Official Gazette and in the locality, of a notification under sub-section (!) of s. 4 of the Act, except where a declaration under s. 4 or s. 6 of the Act had previously been made and was still in force. By sub-cl. (2) of cl. 2, inter alia, publication of a notification under s. 42 is substituted for and has the same effect as a declaration by the State Government under s. 6 of the Act, unless a declaration under the last mentioned section had previously been made and was still in force. By cl. 6, s. 17-A is incorporated in the Land Acquisition Act, and it reads:\n\n\"In every case referred to in section 16 or section 17, the Collector shall, upon payment of the cost of acquisition, make over charge of the land to the Trust; and the land shall thereupon vest in the Trust, subject to the liability of the Trust to pay any further costs which may be incurred on account of its acquisition.\" Section 65 of the Act deals with disposal of l®d. It provides:\n\n\"Subject to any rules made by the State Government under section 72 of this Act, the Trust may retain, or may let on hire, lease, sell, exchange or otherwise dispose of, any land vested in or acquired by it under this Act.\" Broadly stated the scheme of the Act is that with a view to make improvements in towns the Trust may make certain order after framing an appropriate scheme of a type or containing special features of different types of schemes mentioned in s. 24. The scheme so framed m<1y make provisions for matters which are prescribed by s. 23 and such other matters as are provided for speciallY, in the appropriate sections dealing with the different classes of schemes.\n\nThe relevant resolutions adopted by the Trust for framing the original! and supplementary schemes may be briefly noticed. On June 30, 1942 it was resolved by the Trust to acquire an additional area of 103.16 acres to be sold to the Company. The resolution reads as follows:\n\n\"A reference is invited to Board's resolution No. 78 of the 29th March, 1940 relating to the Trust's Industrial Area Scheme. The scheme as approved by the Board and sanctioned by the Chief Commissioner covers an area of about 479.81 acres and provides for the acquisition and development of 271.21 acres of land . at a cost not exceeding Rs. 6.84 lakhs, and the acquisition and development of the remaining 208.6 acres provided any one or more reputable industrialists deposit with or guarantee to the Trust the cost of acquiring and developing this additional area. As decided by the Board in their Resolution Nos. 108 amd 109\n\neL\"PREME C-OURT REPORTS (1966] SUPP. e.o.n.\n\nof the 16th May, 1941 the scheme as regards block 'I' in sub A scheme 'A' has been held in abeyance and land in block II has been acquired and is under development for factory sites.\n\nThe B?ard have now agreed to sell 268 acres of land in the Industrial Area to the Delhi Cloth and General Mills Co.\n\nLtd., on the terms and conditions embodied in Resolution No B 19 of the 9th of January, 1942 as amended by Resolution No: 50 of the 27th March, 1942.\n\n\"The Trust can . . . . offer only 174.84 acres out of the land falling within the boundaries of the sanctioned scheme to the Company for the present. . . . . .\n\nIt 1s therefore proposed to alter under section 43 of the Trust C Law, the scheme as sanctioned so as to provide for the acquisition of this additional area of 103.16 acres to be sold to the Company.\n\nAs under the terms of the sale this additional area is to be developed by the Company, the Trust will have to incur initially expenditure only on acquisition of this land. \" Pursuant to this resolution notices were issued under s. 36 of the D Act in respect of the acquisition of the area. Thereafter a resolution was passed on July 31, 1944 and it was stated in the introductory part of the resolution:\n\n\"The present site of the industrial area was seleoted as being suitably located vis-a-vis the city and the newly developed Trust area. There was no other site available where such E facilities for roads and railway lines existed. The sizes of the plots were fi xcd on the basis of the demand of different industrialists.\"\n\nThe scheme was then sanctioned under s. 42 of the Act.\n\nThe resolution Of the Trust dated March 29,\n\n1940. clearly indicates that the original scheme was intended to secure growth r of an industrial area and thereby to relieve congestion in the over-crowded localities in the town of Delhi. Such a scheme was primarily a town expansion scheme within the meaning of s. 24(b) read with s. J2. In framing such a scheme the ; Jrovisions of a development scheme were incidentally incorporated, and that the Trust, by express enaetment in s. 24 was competent to do.\n\nIt appears that neither before Falshaw, J., nor before the High G Court the validity of the original scheme of 1940 was challenged.\n\nCounsel for the appellants contended that no reliance was ever placed by the Trust before the Trial Court or the First Appellate Court upon the original scheme and the appellants bad no opportunity for challenging the validity of that scheme, but we are unable to accept that contention. The appellants by their plaint challenged H the application of the U.P. Town Improvement Act, the constitution of the Trust and the various steps taken by the Trust resulting\n\na ...\n\n' '•\n\nDALCBAND V. IMPROVEMENT TRUST (Shah, J.) 35\n\nin the acquisition of their land. The original schee was tendered in evidence before the Court of First Instance. It 1s true that arguments in the Trial Court and the First Appellate Court were primarily directed to canvassing the validity of the supplementary scheme in enforcement of which the property of the appellants was acquired. But it cannot be said that the original scheme was not before the Court or that its validity was not challenged. In any event counsel for the appellants has not been able to suggest any ground on which that scheme is open to challenge. The supplementary scheme, as the resolution dated June 30, 1942 clearly indicates, was framed for the further progress of the original scheme.\n\nThe scheme was one for town expansion, and acquisition of land\n\nfor town expansion, i.e. providing for industrial development and making provision for the residence of employees in the industries and of others, would clearly fall within the terms of s. 24(h) read with s. 32. It is true that in the resolution dated June 30, 1942 it is recited that the scheme was to provide for the acquisition of \"an additional area of 103.16 acres to be sold to the Company\". But from a perusal of the primary scheme it is clear that the Company had expressed its requirement for a large area of land under the development scheme and the resolution dated March 29, 1940 had approved of that requirement. It was recited in the resolution that the Company was employing a large number of labourers and removal of the factory to the outskirts of Delhi would contribute in a substantial measure to relief of congestion and also because esta:blishment of a big concern in the industrial area would afford great stimulus to the development of the area. It was found after Part 'A' of the original scheme was carried out that the area provided for the Company was inadequate for its requirements and the Company requested that a larger area may be provided, and accordingly the supplementary scheme was framed.\n\nResort to the provisions of the Act for a:cquiring land with a view to hand it over to an industrial concern for private gain may not fall within the terms of the Act. But in the circumstances already set out a scheme framed which contemplates acquisition of land for effectuating the object of the original scheme is not open to challenge on the ground that it is a device to acquire land to be disposed of for private gain of an industrialist. The original and the supplementary schemes must be regarded as one composite scheme conceived in the interests of industriaJI development and relief of congestion by inducing a flow of population from the congested areas. The object of the supplementary scheme was to effectuate the purpose of the original scheme and failure to frame that scheme may seriously have affected the utility of the original scheme.\n\nThere is no warrant for the contention raised by the appellants H that the land was not to be developed by the Trust, but was to be acquired and handed over to the Company. It is clear from the scheme that the general supervision and control over the execution\n\n81JPREME COCRT REPORTS [1966]\n\nSUPP.\n\nS.C.R.\n\nof the supplementary scheme as over the original scheme was ro- A tained by the Trust and the Company was to develop the land subject to control under the Town Planning Scheme.\n\nThe argument that in a town expansion scheme under s. 32 read with s. 24(h) of the Act, there is no power to acquire land compulsorily is futile. Section 23(a) in terms authorises acquisition by purohase. exchange, or otherwise of any property necessary for B or affected by the execution of the scheme. That provision may be incorporated in any of the improvement schemes of the types men tioned in s. 24. Again Section 32 clearly implies that in a town ex pansion scheme such a power would be reserved, for the Trust is statutorily declared liable to pay compensation when permission to alter any building or wall on the land in the area is denied, if the Trust docs not proceed to acquire such land within one year from C the dato of such reful. By s. 55 a general power to purchase or lease by agreement of any land which the Trust is authorised to acquire is granted and by s. 56 power to acquire land under the Land Acquisition Act, 1894, is expressly conferred. It is true that under the provisions relating to other classes Of schemes, for instance, s. 26(2)(0, s. 28(2)(a), s. 29(3) an express provision with regard to acquisition of land is made, and there is no such express D provision in s. 32. But that by itself is not sufficient to justify an inference that the provisions of s. 23(a) relating to acquisition of land necessary for or affected by the execution of the scheme may not be conferred in sanctioning a town expansion scheme. If the view contended for be correct, s. 23(a) will not have application to any scheme. We are unable to see any reason why s. 56 which authorises the Trust to acquire land is to be restricted only to those E cases in which in the case of a specific scheme an express provision conferring power of acquisition apart from s. 23(a) is conferred.\n\nNor is there any substance in the contention that the provi sions of Part VII of the Land Acquisition Act had to be resorted to by the Trust for acquiring land which was to be allotted to a Company after development. If the land is to be notified for acqui- F sition under the Land Acquisition Act for a Company, the require ments of Part VII of the Land Acquisition Act must undoubtedly be complied with, and failure to do so would render the acquisition invalid. In this case land was not to be acquired for the Company: it was to be acquired for carrying out the industrial development and town expansion scheme of the Trust, and then it was to be allotted for carrying out the scheme to the Company for develop- G ment. Power to include provision for sale of land comprised in the scheme may competently be conferred under s. 23(gl of the Act and may be exercised under s. 65. Mere inclusion of a power of sale of land acquired under a scheme does not therefore vitiate a scheme.\n\nThe argument that in passing the resolution for bringing into H force the supplementary scheme one of the Directors of the Com\n\npany had participated need not detain us. This argument was\n\n\\ ..\n\n' .\n\nI '\n\nDALOHAND v. IMPROVEMENT TRUST (Shah, J.) 37\n\napparently not raised before the High Court, and having regard to the terms of ss. 42 & 100 of the Act has no force.\n\nIt is true that if the land of the appellants had been acquired under the Land Acquisition Act, the appellants may have become entitled to the statutory solatium in addition to the market value.\n\nBut if the Act is valid, and could be resorted to for oompulsorily acquiring land of the appellants, the awards made under the Act are not open to challenge on the ground that if another scheme of acquisition had been resorted to, the appellants may possibly have obtained more compensation.\n\nThe appeal must therefore fail. Having regard however to the circumstances of the case, we think that in this case there should be no order as to costs throughout.\n\nAppeal dismissed.", "total_entities": 92, "entities": [{"text": "l\n\nDALCHAND & ORS", "label": "PETITIONER", "start_char": 3, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "DALCHAND & ORS", "offset_not_found": false}}, {"text": "DELffi IMPROVEMENT TRUST (NOWI DELHI DEVELOPMENT\n\nAUTHOIUTY)• NEW DELHI", "label": "RESPONDENT", "start_char": 23, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "DELHI IMPROVEMENT TRUST (NOW DELHI DEVELOPMENT AUTHORITY), NEW DELHI", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 113, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "C. SHAH, JJ.", "label": "JUDGE", "start_char": 150, "end_char": 162, "source": "metadata", "metadata": {"canonical_name": "J.C. 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{}}, {"text": "Section 58", "label": "PROVISION", "start_char": 16507, "end_char": 16517, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "Xjuiring land under the Land Acquisition Act", "label": "STATUTE", "start_char": 16553, "end_char": 16597, "source": "regex", "metadata": {}}, {"text": "s. 57", "label": "PROVISION", "start_char": 16645, "end_char": 16650, "source": "regex", "metadata": {"linked_statute_text": "Xjuiring land under the Land Acquisition Act", "statute": "Xjuiring land under the Land Acquisition Act"}}, {"text": "Tribunal shall be deemed to be the award of a Court under the Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 16859, "end_char": 16947, "source": "regex", "metadata": {}}, {"text": "s. 3(ee)", "label": "PROVISION", "start_char": 17169, "end_char": 17177, "source": "regex", "metadata": {"linked_statute_text": "the Tribunal shall be deemed to be the 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{"document_id": "1966_1_280_285_EN", "year": 1966, "text": "JAHURI SAH & ORS.\n\nDW ARKA PRASAD JHUNJHUNW ALA & ORS.\n\nApril 27. 1966\n\n[M. HIDAYATVLLAll, J. R. MuDHOLKAR, R. S. BACHA WAT AND J.M.\n\nSHELAT, JJ.J\n\nBihar Buildings (Lease, Rent and Eviction) Control Act 1947 (Bihar Act 3 of 1947)-Co-owner of house agreeing to pay compensation to other c<>-owner for occupation of house-Relationship of tenant and landlord whether arises-Act whether applicable-Agreement to pau compensation whether enforceable.\n\nAdoption-Existence of deed of adoption admitted-Oral evidence wheter barred.\n\nTwo Hindu undivided families one of them being represented by the appellants and the other by the respondents were co-owners of a house which was purchased by them jointly. The appellants occupied a major portion of the house on an agreed compensation being payable by them to the respondents in respect of the latter's hare occupied by them. On the compensation not being paid as agreed, the respondents filed a suit for its recovery, as well as for partition. In the plaint one S was mentioned as having been adopted out of the plaintiff family and for that reason he was not impleaded. The appellants resisted the suit on the grounds that: (il S had not been impleaded alt.hough a co-owner, (; i) th\" S'Uit was barred by the Bihar Building (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947), and (iii) the contract fCJr payment of compensation was not enforceable as there was no ouster of the plaintiffs by the respondents. The trial court decided in favour of the appellants but the High Court held against them. They came to this Court by special leave.\n\nHELD: (i) The suit was not incompetent because S was not made a party thereto. The fact of adoption was stated in the plaint and had not been specifically denied by the appellants in their written statements. No specific issue on the question of adoption \\Vas raised and it could not be therefore argued that S's adoption had not\n\nlJeen established. [284 A-B. Fl\n\nOral evidence of the fact of adoption did not become inadmissible merP.ly brcause the existence of a deed of adoption \\Vas admitted. A deed of adoption merely records the fact that an adoption had taken place and noth!ng more. Such a deed cannot be likened to a document \\vhich by its sheer force brings a transaction into existence\n\n[284 D-E] .\n\n(ii) The me:• fact that the defendants agreed to pay compensation to the plaml1fTs for their occupation of the plaintifT's share\n\nwould. not brmg mto existence a relationship of landlord and tenant.\n\nB~ this agreement the part 1es never intendP.d to constitute a relation- H ship of Ia.ndlord and tenant lJetween the defendants and their coowners. B1har Act 3 of 1947 was therefore inapPlicable and the suit could not be said to be barred under its provisions. [285 CJ\n\nJAHURT SAii i. JJIUNJllUNWAl.A (Mudlwlkar, .l.) 281\n\n(iii) Co-owners are legally competent to come to any kind of agreement for the enjoyment of their undivided property and are free to lay down any terms covering the enjoyment of the property.\n\nOuster of a coowner is not a sine qua non for enabling him to claim compensation from the co-owner who is in occupation and enjoyment of common property. [285 E-F]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 193 of 1964.\n\nAppeal from the judgment and decree dated May 13, 1960 of the Patna High Court in Appeal from Original Decree No. 132 of 1955 and order dated February 15, 1962 in M. J. C. No. 265 of 1961. c Sar; oo Prasad, S. C. Sinha and B. P. Jha, for the appellants.\n\nS. T. Desai and R. C. Prasad. for the respondents.\n\nThe Judgment of the Court was delivered by '\"* Mudholkar, J. This is an appeal by certificate from a judg-\n\n' '\n\nI ~\n\nment of the Patna High Court reversing that of the trial court D dismiss; ng the plaintiffs' suit for partition and separate possession of t:1eir half share in a house and for payment of compensation from May 2, 1947 to September 11, 1951 at the rate of Rs. 200/- p.m. with interest and for payment of compensation at the same rate from the date of suit till the recovery of possession of theii; share in the house.\n\nThe facts which are not disputed before us are these: The property in dispute which is situate within the limits of the municipality of Bhagalpur was purchased jointly by five persons, Juri Mal, Gajanand, Ramasahai Sah, Jahuri Sah and Ramgali Sah. The first two of these are father and son (and were members of a joint Hindu family).· Both of them are dead.\n\nPlaintiffs 1 to 4 are the sons and plaintiff 6 is the widow of Gajanand and plaintiff No. 5 is the widow of Jurimal. Jurimal, Gajanand (constituted a joint Hindu family) and plaintiffs 1 to 4 constituted a joint Hindu family. Ramsahai, Jahauri Sah and Ramgali were brothers and were members of a joint Hindu family. Jahuri Sah is defendant No. 1 and Ramgali Sah is defendant No. 2. They, along with the remaining defendants, are members of a joint Hindu family of which J ahauri Sah is the kart a.\n\nThe property in question was purchased by the two joint families, each family having ha.Jf interest therein. The date of the transaction was June 26, 1942. At the time of the purchase of the property it was in the possession of Mohanlal Marwari as a tenant. He was evicted therefrom by a decree of the court and H thereafter it was let out to Government, the compensation having been settled at Rs. I 00 /- per mensem. The Government vacated the house after some time whereafter the defendants occ11pied the L/S5SCI-20(a)\n\n282 BUPREllE OOUJIT REPORTS\n\n(1966] SUPP. 8.C.R,\n\nhouse excepting a portion thereof which was in the occupation A of Isri Sah and Shib Charan Sah as tenants paying a monthly rent of Rs. 30/-. Half of this rent was being realised by each family.\n\nAccording to the plaintiffs when the defendants entered into possession of the property they agreed to pay Rs. 200/- per mensem as compensation to the plaintiffs' family with respect to their half share in the property. They, however, did not pay any compensation to the plaintiffs despite 1he agreement.\n\nOn these allegations the plaintiffs instituted their suit. In the plaint they stated that Gajanand had another son named Shankarlal but he was given in adoption to Sreclal, P. W. 6 and he was, therefore, not joined as party to the suit.\n\nThe defendants denied the claim and stated that the sui~ was barred by the provisions of the Bihar Buildings <Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947) (hereafter referred to as the Act) as well as by the rule of cstoppel. They also raised the plea that under the contract entered into between the two families Rs. 50/- p.m. was payable as compensation and not Rs. 200 /- p.m. as alleged by the plaintiffs. According to them the suit was barred by the rule of estoppel. They contended that the claim for compensation for a period prior to the expiry of 3 years from the date of suit was barred by time. They also raised some other contentions in the written statement but it is unnecessary to refer to them inasmuch as we must confine ourselves to the points urged before us by Mr. Sarjoo Prasad on their behalf. The points arc: (I) that the suit for partition and separate possession was not maintainable; and (2) that the contract under which the plaintiffs claimed compensation is not enforceable.\n\nThe suit is said to be not maintainable because\n\n(a) one of the co-owners of the property was not joined as a party to the suit and (b) also because it was barred by the Act. The contract for payment of compensation was said to be not enforceable as there was no ouster of the plaintiffs by the defendants.\n\nThe trial court held that the provisions of the Act applied and by virtue of those provisions the plaintiffs were not entitled to a decree for eviction of the defendants nor were they entitled to a decree for compensation and that the adoption of Shankarlal not having been proved the suit as constituted was not maintainable.\n\nOn this point the High Court arrived at different conclusions. The view taken by the High Court was that the provisions\n\nof the Act did not apply to this case. that the defendants not having specifically denied the fact of adoption and no issues thereon having been raised the trial court erred in holding that H the adoption was not proved and that non-joinder of Shankarlal was not an impediment to the institution of the suit. Further\n\njAlfURI SAll v. JllUJljHTJNWAM (!vlwlholkar, J.) 283\n\naccording to the High Court the contract to pay compensation at the rate of Rs. 200 /- p.m. was duly established and that as it was competent to a civil court to enforce the contract the suit for recovery of arrears of compensation was maintainable. The High Court accepted the defendants' contention that the claim for arrears must be limited to a period of three years prior to ths institution of the suit. It allowed interest on the arrears at 6 % p.a. and decreed the claim of the plaintiffs for partition and for arrears of compensation. The plaintiffs then moved the High Court under s. 151 read with O.XX, r. 18, Code of Civil Procedure for granting them appropriate relief with respect to their claim for compensation, for use and occupation of the house from the date of suit till delivery of possession of their share after passing the final decree. The High Court allowed this application and directed that the plaintiffs shall also be entitled to compensation from the date of institution of the suit until recovery of physical possession of their share after partition or until the expiry of three years from the date of its decree, whichever event first occurs. It also made an appropriate order regarding costs.\n\nAggrieved by this decree of the High Court as amended by its subsequent order upon the plaintiffs' application under s. 151 read with O.XX, r. 18, C.P.C. the defendants have come up to this Court.\n\nIn our opinion the High Court was right in holding that the Act is inapplicable to this case. The plaintiffs and defendants were admittedly co-owners of the property. As the property had not been partitioned it was open to either or both the parties to occupy it. The defendants occupied the property except a small portion which was in possession of the tenants. The plaintiffs acquiesced in it because of an agreement between the parties that the defendants would pay Rs. 200 /- p.m. as compensation to them. The defendants did not dispute that there was an agreement about payment of compensation between the parties but their plea was that the amount agreed to was Rs. 50 /- p.m. and not Rs. 200 /- p.m. Their contention in this behalf was rejected by the High Court which accepted the plaintiffs' contention that the amount was Rs. 200 /- p.m. This part of the High Court's judgment is not challenged before us by Mr. Sarjoo Prasad. He, however. challenged the finding of the High Court that the claim to compensation was enforceable. But before we deal with this matter it would be appropriate to deal with the reasons given by him in support of the contention that the suit was not maintainable. He reiterated the argument urged before the trial court based upon the non-joinder of Shankarlal as a party to the suit.\n\nAccording to him. as Shankarlal's adoption has not been established by the plaintiffs he was also a co-owner of the property\n\nSUPREME COURT REPORTS\n\n(1966] SUPP. S.C.R.\n\nand his non-joindcr as a party to the suit rendered the suit incompetent. The High Court has pointed out that the plaintiffs have clearly stated in para 1 of the plaint that Shankarlal had been given in adoption to Srcelal.\n\nIn neither of the two written statements liled on behalf of the defendants has this assertion of fact by the plaintiffs been specifically denied. Instead, what is stated in both these written statements is that the defendants have no knowledge of the allegations made in para I of the plaint. Bearing in mind that O.VllI, r. 5, C.P.C. provides that every allegation of fact in the plaint, if not denied specifically or by necessary implie<1tion or stated to be not admitted in the pleading of the defendant shall be t,1ken to be admitted, to say that a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact, not even an implied denial. No specific issue on the question of adoption was. therefore, raised. In the circumstances the High Court was right in saying that there was no occasion for the parties to lead any cnvdence on th.e point. However. Srcclal who was examined as a witness on behalf of the plaintiffs has spoken about the fact of adoption and his statement can at least be regarded as prima facie evidence of adoption. It is true that he admits the existence of a deed of adoption and of its non-production in the court. This admission. however, would not render oral evidence inadmissible because it is not by virtue of a deed of adoption that a change of status of a person can be effected. A deed of adoption merely records the fact that an adoption had taken place and nothing more. Such a deed cannot be likened to a document which by its sheer force brings a transaction into existence. It is no more than a piece of evidence and the failure of a party to produce such a document in a suit does not render oral evidence 111 proof of adoption inadmissihle. We. therefore. agree with the High Court that the plaintiffs' suit for partition of their half share in the property was not incompetent because Shankarlal was not made a party thereto.\n\nWe will now deal with the other ground urged by Mr. Sarjoo Prasad in support of hi, contention that the suit is not maintainable. Under sub-s. (21 of s. 11 of the Act as it stood on the date of the suit a claim for eviction of a tenant or a claim for recovery of possession of a building and claim for rent thereof\n\nhad to be made before the Rent Controller alone and consequ- G ently the jurisdiction of the civil court for the enforcement of such claims was ousted. But, for the provisions of this section to apply.\n\nthe relationship between the plaintiff and the defendant should be that of a landlord and tenant.\n\nIf they arc co-owners of the property and the property is held by them as tenants-in-common no question of relationship of landlord and tenant comes into H being as between them. The common case of the parties is that they are in fact co-owners of the property and the respective\n\n, I\n\nA •\n\n, IAHU!U SAH v. JHIJNJHUNWALA (Mudholkai\", J.) 285\n\nshares of the two families have not been demarcated. They, therefore, continue to be tenants in common. It is true that the entire property (save a small portion which was in possession of tenants) is in the actual occupation of the defendants which means that they are in occupation not only of their share in the property but also of the plaintiffs' share. That fact, however, would not make them tenants of the plaintiffs. Under the law each tenantin-common is entitled to the possession of the entire property, that is, to every part of it though its right to possession is limited to the extent of the share in the property. The mere fact that the defendants agreed to pay cgmpensation to the plaintiffs for their occupation of the entire property (ignoring the portion in possession of the tenants) would not bring into existence a relationship of landlord and tenant. By this agreement, the parties never intended to constitute a relationship of landlord and tenant between the defendants and their co-owners. The provisions of the Act are, therefore, inapplicable. The second ground urged by Mr.\n\nSarjoo Prasad, therefore, fails.\n\nWhat we have to consider then is whether the contract for payment of compensation is not enforceable. It is no dbubt true that under the law every co-owner of undivided property is entitled to enjoy the whole of the property and is not liable to pay compensation to the other co-owners who have not chosen to enjoy the property. It is also true that liability to pay compensation arises against a co-owner who deliberately excludes the other co-owners from the enjoyment of the property. It does not, however, follow that the liability to pay compensation arises only in such a case and no other. Co-owners are legally competent to come to any kind of arrangement for the enjoyment of their undivided property and are free to lay down any terms concerning the enjoyment of the property. There is no principle of law which would exclude them from providing in the agreement that those of them as arc in actual occupation and enjoyment of the property shall pay to the other co-owners compensation. No authority was cited by learned counsel in support of his contention that ouster of a co-owner is a sine qua non for enabling him to claim compensation from the co-owner who is in occupation and enjoyment of common property. We, therefore, reject the contention.\n\nIn the circumstances, therefore, we dismiss the appeal with costs.\n\nAppeal dismissed.", "total_entities": 14, "entities": [{"text": "JAHURI SAH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 16, "source": "metadata", "metadata": {"canonical_name": "JAHURI SAH & ORS", "offset_not_found": false}}, {"text": "DW ARKA PRASAD JHUNJHUNW ALA & ORS", "label": "RESPONDENT", "start_char": 19, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "DWARKA PRASAD JHUNJHUNWALA & ORS", "offset_not_found": false}}, {"text": "R. MuDHOLKAR", "label": "JUDGE", "start_char": 94, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "SHELAT, JJ", "label": "JUDGE", "start_char": 134, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "J.M. 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{"document_id": "1966_1_286_295_EN", "year": 1966, "text": "281!\n\nSTATE QF PUNiil A\n\nMAJOR SINGH\n\nApril 28, 1966 II\n\n(A.K. SARKAR, C.J., ]. R. MUL>HOLKAR ASD R. S. BACHAWAT, JJ.J\n\nIndian Penal Code (.J5 of 1860), s. 354-Scope of-Relevancy of age of victim.\n\nPer Mudholkar, J.: Unde~ s. 354 of the Indian Penal Code, while the individual reaction of the victim to the act of the accused would be irrelevant, when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind, that act must fall within the mischief of the section and would constitute an offence under the section. [293 A-CJ\n\nSince the action of the accused (respondent) in interfering with and thereby causing injury to the vagina Qf the child, who was seven and half months old, was deliberate, he must be deemed to have intended to outrage her modesty. (293 CJ\n\nPer Bachawat J: The essence of a woman's modesty is her sex.\n\nEven a female of tender age from her very birth possesses the modesty \\vhich is the attribute of her sex. Under the secti0n the culpable intention of the accused is the crux of the matter. The reaction of the\n\n\\voman is very relevant, but its absence is not al\\vays decisive.\n\nThe respondent is punishable for the offence under the section because, by his act he outraged and intended to outrage whatever modesty the little victim was possessed of. [293 F; 294 B-C]\n\nPer Sarkar, C.J., (dissenting): Under the section the accused would be guilty of an offence if he assaults or uses criminal force \"'intending to outrage or knowing it to be likely that he will thereby outrage\" the modesty of a woman. This intention or knowledge is the ingredient of the offence and not the woman's fC<'lings or reacc\n\ntion. The test therefore. would be whether a reasonable man will F think that the act of the offender was intended to or was known to be likely to outrage the modesty of the woman. [288 B. FJ.\n\nIn the present case. there could be no question of the aocused having intended to outrage the modesty of the child or having known that his act was likely to have that result, because, though the victim is a \"\\\\.'Oman\" under the Penal Code, no reasonable man would say that a female child of that age was possessed of womanly G modesty. [289 GJ\n\nCRIMl~AL AP PELLA IE JURJSDICTIOS: Criminal Appeal No. 54 of 1964.\n\nAppeal from the judgment and order dated the May 31. 1963 of the Punjab High Court in Criminal Appeal No. 1023 of 1962.\n\nDipak D1111 Cha11dlt11ri and R. N. Sachthcy, for the appellant.\n\n. .\n\nl'tJlihll v.\n\nMAJol\\ SINGH (Sarkar, C.J.i 281\n\nA. S. R. Chari, for the respondent.\n\nThe following Judgments of the Court were delivered.\n\nSarkar, C.J. The question is whether the respondent who caused injury to the private parts of a female child of seven and half months is guilty under s. 354 of the Penal Code of the offence of outraging the modesty of a woman. In the High Court, the matter was heard by three learned Judges two of whom answered the question in the negative and the third answered it in the affirmative. Hence this appeal by the State.\n\nIt would be convenient to set out the section at once.\n\nC S. 354. \"Whoever assaults or uses criminal force to\n\nany woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both\".\n\n\"Criminal force\" is defined in s. 350 of the Code and it is not in dispute that such force had been used by the respondent to the child. It is also not in dispute that the child was a woman within the Code for in the Code that word is to be understood as meaning a female human being of any age: sec ss. 7 and 10.\n\nThe difficulty in this case was caused by the words \"outrage her modesty\". The majority of the learned Judges in the High Court held that these words showed that there must be a subjective element so far as the woman against whom criminal force was used is concerned. They appear to have taken the view that the offence could be said to have been committed only when the woman felt that her modesty had been outraged. If I have understood the judgment of these learned Judges correctly, the test of outrage of modesty was the reaction of the woman concerned.\n\nThese learned Judges answered the question in the negative in the view that the woman to whom the force was used was of too tender an age and was physically incapable of having any sense of modesty. The third learned Judge who answered the question in the affirmative was of the view that the word \"modesty\" meant, accepted notions of womanly modesty and not the notions of the woman against whom the offence was committed. He observed that the section was intended as much in the interest of the woman concerned as in the interest of publid morality and decent behaviour and the object of the section could be achieved only if the word 'modesty' was considered to be an attribute of a human female irrespective of whether she had developed enough understanding to realise that an act was offensive to decent female behaviour or not. The reported decisions on the question to which our attention was drawn do not furnish clear assistance. None of them deals with a case like the present.\n\n288 stn>ru:l!E COURT REPORTS\n\n(1966) SGPP. B.C.R.\n\nBut I do not think that there is anything in them in conflict with A what I propose to say in this judgment.\n\nI would first observe that the offence does not, in my opinion, depend on the reaction of the woman subjected to the assault or use of criminal force. The words used in the section arc that the act has to be done \"intending to outrage or knowing it to be B likely that he will thereby outrage her modesty\". This intention or knowledge is the ingredient of the offence and not the woman's feelings. It would follow that if the intention or knowledge was not proved, proof of the fact that the woman felt that her modes ty had been outraged would not satisfy the necessary ingredient of the offence. Likewise. if the intention or knowledge was proved, the fact that the woman did not feel that her modesty had C been outraged would be irrelevant. for the necessary ingredient would then have been proved. The sense of modesty in all women is of course not the same; it varies from woman to woman. In many cases, the woman's sense of modesty would not be known to others. If the test of the offence was the reaction of the woman, then it would have to be proved that the offender knew the standard of the modesty of the woman concerned, as otherwise.\n\nD it cJuld not be proved that he had intended to outrage \"her\" modesty or knew it to be likely that his act would have that effect.\n\nThis would be impossible to prove in the large majority of cases.\n\nHence, in my opinion. the reaction of the woman would be irrelevant.\n\nIntention and knowledge are of course states of mind. They E arc nonetheless facts which can be proved. They cannot be proved by direct evidence. They have to be inferred from the drcumstances of each case. Such an inference. one way or the other. can only be made if a reasonable man would, on the facts of the case, make it. The question in each case must. in my opinion. be: will a reasonable man think that the act was done with the intention of outraging the modesty of the woman or ., with the knowledge that it was likely to do so'? The test of the outrage of modesty must, therefore. be whether a reasonable man will think that the act of the offender was intended to or was known to he likely to outrage the modesty of the woman.\n\nIn considering the question. he must imagine the woman to be a reasonable woman and keep in view all circumstances concern ing her. such as. her station and way of life and the known notions G of modesty of such a woman.\n\nThe expression \"outrage her modesty\" must be read with the words \"intending to or knowing it to be likely that he will\". So read. it would appear that though the modesty to be considered is of the woman concerned. lhe word \"her\" was not used to indicate her reaction. Read all together. the words indicate an act done with the intention or R knowledge that it was likely to outrage the woman's modesty, the emphasis being on the intention and knowledge.\n\nA •\n\nPUNJAB t'.\n\nMAJOR SlNGH (Sark11r, 0; J.) 289\n\nAnother argument used to support the view, that the reaction of the woman concerned decided the question, was that the section occurred in a chapter of the Code dealing with offences affecting human body and not in the chapter dealing with offences relating to decency and morals. I think this argument is fallacious. None of the other offences against human body, which occur in the same chapter as s. 354, depends on individual reaction and therefore there is no reason to think that the offence defined in s. 354 depends on it. There is no incongruity in holding that the commission of an offence against human body does not depend on the reaction of the person against whom it is alleged to have been committed but on other things.\n\nIt will be remembered that the third learned Judge (Gurdev Singh, J.) had said that modesty in the section has W be understood as an attribute of a human female irrespective of the fact whether she has developed a sense of modesty or not. This view seems to me to be erroneous. In order that a reasonable man may think that an act was intended or must be taken ta have been known likely to outrage modesty. he has to consider whether the woman concerned had developed a sense of modesty and also the standard of that modesty. Without an idea of these, he cannot decide whether the alleged offender intended to outrage the woman's modesty or his act was likely to do so. I see no reason to think. as the learned Judge did, that such a view would defeat the object of the section. The learned Judge said that modesty had to be judged by the prevalent notions of modes ty. If this is so, it will also have to be decided what the prevalent notions of modesty in the society are. As such notions concerning a child may be different from those concerning a woman of mature age, these notions have to be decided in each case separately. To say that every female of whatever ge is possessed of modesty capable of being outraged seems to me to be laying down too rigid a rule which may be divorced from reality. There obviously is no universal standard of modesty.\n\nIf my reading of the section is correct, the question that remains to be decided is, whether a reasonable man would think that the female child on whom the offence was committed had modesty which the respondent intended to outrage by his act or knew it to be the likely result of it. I do not think a reasonable man would say that a female child of seven and a half months is possessed of womanly modesty. If she had not, there could be no question of the respondent having intended to outrage her modesty or having known that bis act was likely to _have that result. I would for this reason answer the question in the negative.\n\nAt the Bar, instances of various types of women were mentioned. Reference was made to an imbecile woman, a sleeping woman who does not wake up, a woman under the influence of drink or anaesthesa, an old woman and the like. I would point\n\nSUPREME COURT REPORTS [1966L~UPP. _s.c.R.\n\nout that we are not concerned in this case with any such woman.\n\nA But as at present advised, I would venture to say that I feel no difficulty in applying the test of the outrage of modesty that I have indicated in this judgment to any of these cases with a satisfactory result. If it is proved that criminal force was used on a sleeping woman with intent to outrage her modesty, then the fact that she does not wake up nor feel that her modesty had B been outraged would be no defence to the person doing the act.\n\nThe woman's reaction would be -irrelevant in deciding the question of guilt.\n\nBefore concluding, I may point out that the respondent had been convicted by the trial court under s. 323 of the Code for the injury caused to the child and sentenced to rigorous imc prisonment for one year and a fine of Rs. 1 ,000 /- with a further period of imprisonment for three months in default of payment of the fine.-That sentence has been maintained by the High-court and as there was no appeal by the respondent to this Court, that sentence stands. -\n\nI would, for these reasons, dismiss the appeal.\n\nMudholkar, J. It has been found as a fact by the _courts below that the respondent hadcaused injuries to the vagina of a seven and. a hall month old child by fingering. He has been held\n\nguilty of an offence under s. 323, Indian Penal Code. The contention on behalf of the State who is the appellant before us is that the offence amounts to outraging the modesty of a woman and is thus punishable under s. 354; _Indian -Penal Code. The learned Sessions Judge and two of the three learned Judges of the High Court who heard the appeal against the decision of the Sessions Judge were of the view that a child_ seven and a haU month old being incapable of having a developed sense of modesty, the offence was not punishable under s. 354; The third learned Judge, Gurdev Singh, J., however, took a different view.\n\nThe learned Judge quoted the_ meaning of the word \"modesty\" given in the Oxford English Dictionary (1933 Edn.)-which is, \"womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in men or women) reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggcstions\"-and observed: \"This obviously does not refer to a particular woman but_ to the accepted notions of womanly behaviour and conduct: It is in this sense that the modesty _ appears to have been used.in section 354 of the Indian Penal Code\". The learned Judge then referred to s. 509 of the Penal Code in which also the word \"modesty\" appears and then proceeded to say:\n\n\"The object of this provision seems to have been to protect women against indecent behaviour of others which is -offensive to morality. The offences created by section -354 and section 509 of the Indian Penal Code are as much in the\n\n...\n\n\\\\\\\n\nPUNJAB t'. MAJOR SINGH \\Mudholkar, J.) 291\n\ninterest of the women concerned as in the interest of public morality and decent behaviour. These offences are not only offences against the individual but against public morals and society as well, and that object can be achieved only if the word \"modesty\" is considered to be an attribute of a human female irrespective of fact whether the female concerned has developed enough understanding as to appreciate the nature of the act or to realise that it is offensive to decent female behaviour or sense of propriety concerning the relations of a famale with others\".\n\nS. B. Capoor J., one of the other two Judges, on the other hand, referred with approval to the following passage from the judgment of Jack J., in Soko v. Emperor('):\n\n\"Under section 354 it must be shown that the assault was made intending to outrage or knowing it to be likely to outrage the modesty of the girl. It is urged for the petitioner that the conduct of the girl shows that in fact her modesty was not outraged. There is no suggestion that she had any hesitation in telling her mother exactly what had happened. In the circumstances, I think that it is. therefore, doubtful whether in fact the modesty of the girl was outraged He also referred to two other decisions in Mt. Champa Pasin & Ors. v. Emperor(') and Girdham Gopal v. State(') and took the view that the authorities do not support the view that in construing s. 354, I.P.C. it is irrelevant to consider the age, physical condition or the subjective attitude of the woman against whom the assault has been committed or the criminal force used. The third Judge Mehar Singh J., in his judgment referring the case to a larger bench has quoted the following passage from Dr. Gaur's Penal Law of India, 7th Edn., Vol. 3, p. 1744:\n\n\"Ordinarily, then, women who are likely to be made victims of this offence are those who are young and who are old enough to feel the sense of modesty and the effect of the acts directed against it. But it does not deprive others of the protection from the licence of man, provided their sense of modesty is sufficiently developed\". and observed that the opinion of the learned author tends to agree with the dictum of Jack J., in Soko's case(').\n\nThe respondent before us was unrepresented and considering the importance of the question we had requested Mr. A. S. R.\n\nChari to assist us by appearing amicus curiae. He drew our attention to the fact that the Sexual Offences Act, 1956 (4 & 5 Eliz. 2 c. 69) enacted by the British Parliament has used much H wider language in s. 14 which deals with indecent assault on\n\n(') A.LR. 1933 0•1. 142. (') A.I.R. 1928 P•tna 326. (') ;\\., l, R, 1953 M.B. 147.\n\nSUPHEME OOL'RT REPORTS\n\n[1966] SUPP.\n\n8, C, I\\.\n\nwomen than that used in s. 354, I.P.C. He also said that in one A sense s. 354 can also be said to be wider than s. 14 of the British Act in that it is not CDnlined to 'exual o!Tcnces which is quite correct. The two provisions mn thus: -\n\nSection 14 of the Sexual O!Tcnces Act. J 956:\n\n\"Indecent assault on a woman-(!) It is an offence, subject to the exception mentioned in sub-section (3) of this section for a person to make an indecent assault on a woman.\n\n(2) A girl under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of this section.\n\n(3) Where a marriage is invalid under section two of the Marriage Act. 1949. or section one of the Age of Marriage Act, 1929 (the wife being a girl under the age of sixteen), the invalidity does not make the husband guilty of any offence under this section by reason of her incapacity to consent while under that age, if he believes her to be his wife and has reasonable cause for the belit>f''.\n\n(4) A woman who is a defective cannot in law give any consent which would prevent an act being an assault for the purposes of this section. but a person is only to be treated as guilty of an indecent assault on a defective by reason of that incapacity to consent, if that person knew or had reason to suspect her to be a defective\".\n\nSection 354 of the Indian Panel Code reads thus:\n\n\"Assault or criminal force to woman with intent to outrage her modesty-Whoever assaults or uses criminal force to any woman. intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years. or with fine, or with both\".\n\nWhat is made an offence under s. 14 is the act of the culprit irrespective of its reaction on the woman. The question is whether under s. 354 the position is different. It speaks of outraging the modesty of a woman and at first hlush seems to require that the outrage must be felt by the victim herself. But such an interpretation would leave out of the purview of the section assaults. not only on girls of tender age hut on even grown up women when such a woman is sleeping and did not wake u; i or is under anaesthesia or stupor or is an idiot. It may also perhaps. under certain circumstances. exclude a case where the woman is of depraved moral character. Could it be said that the legislature intended that the doing of any act to or in the presence of any woman which according to the common notions of mankind is suggestive of sex, would~ be outside this section unless the woman\n\n. .._\n\nPUNJAB v. MAJOR SINGH (Bachawat, J.) 293\n\nherself felt that it outraged her modesty? Again, if the sole test to be applied is the woman's reaction to particular act, would it not be a variable test depending upon the sensitivity or the upbringing of the woman? These considerations impel me to reject the test of a woman's individual reaction to the act of the accused.\n\nI must, however, confess that it would not be easy to lay down a comprehensive test; but about this much I feel no difficulty. In my judgment when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that act must fall within the mischief of this section.\n\nWhat other kind of acts will also fall within it is not a matter for consideration in this case.\n\nIn this case the action of Major Singh in interfering\\ with the vagina of the child was deliberate and he must be deemed to have intended to outrage her modesty. I would, therefore, allow the appeal, alter the conviction of the respondent to one under s. 354, I.P.C. and award him rigorous imprisonment to a term of two years and a fine of Rs. 1,000/- and in default rigorous imprisonment for a period of six months. Out of the fine, if realised, Rs. 500/- shall be paid as compensation to the child.\n\nBacbawat, I. Section 10 of the Indian Penal Code explains that \"woman\" denotes a female human being of any age.\n\nThe expression \"woman\" is used in s. 354 in conformity with this explanation, see s. 7. The offence punishable under s. 354 is an assault on or use of criminal force to a woman with the intention of outraging her modesty or with the knowledge of the likelihood of doing so. The Code does not define \"modesty\". What then is a woman's modesty?\n\nI think that the essence of a woman's modesty is her sex.\n\nThe modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under s. 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as, for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anaesthesia, she may be sleeping. she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section.\n\nA female of tender age stands on a somewhat different footing. Her body is immature, and her sexual powers are dormant.\n\nIn this case, the victim is a baby seven and half months old. She has not yet developed a sense of shame and has no awareness of sex.\n\nB Nevertheless, from her very birth she possesses the modesty which is the attribute of her sex. But cases must be rare indeed where the offender can be shown to have acted with the intention of\n\nSUPRf:l.!E COURT REPORTS\n\n(1966] SUPP. B.C.R.\n\nOlltraging her modesty. Rarely docs a normal man use criminal A ... force to an infant girl for satisfying his lust. I regret to say that we have before us one of such rare cases. Let us reconstruct the scene. The time is 9-30 p.m. The respondent walks into the room where the baby is sleeping and switches off the light. He strips himself naked below the waist and kneels over her. In this indecent posture he gives vent to his unnatural lust, and in the process B\n\n-\"I ruptures the hymen and causes a tear r long inside her vagina.\n\nHe flees when the mother enters the room and puts on the light.\n\nI think he outraged and intended to outrage whatever modesty the little victim was possessed of, and he is punishable for the offence under s. 354.\n\nI agree with the order proposed by Mudholbr, J. c\n\nORDER\n\nIn view of the judgment of the majority, the appeal is allowed, the conviction of the respondent is altered to one under s. 354 I.P.C., and he is awarded rigorous imprisonment for a term of n' two years and a fine of Rs. 1,000 I, and in default, rigorous Imprisonment for a period of six months. Out of the fine, if realised, Rs. 500/· shall be paid as compensation to the chil<l.\n\n• F\n\nNALNIKANT AMBALAL M:ODY\n\n1'.\n\nCOMMISSIONER OF INCOME-TAX, BOMBAY May 4, 1966\n\n[A. K. SARKAR, C.J., J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]\n\nIndian Income-tax Acl 1922, ss. 46, 10, 12-0utstanding fees from !ega! profession received after cessation of practice-cash sy_stem of accounting-Receipts whether can be taxed under s. 12 income from 'other sources'.\n\nThe appellant an advocate who maintained his accounts on the cash system gave up practice when he was elevated to the Bench in\n\n1957. Certain outstanding professional dues were however received by him in the accounting years 1958 and 1959. These receipts were shown by him as income in his return for the assessment years 1959-60 and W60-61 and were assessed by the Income-tax Officer. The appellant then went in revision to the Commissioner of Income-tax contending that the said receipts were not income and had been wrongiy taxed. The Commissioner having decided against him the appeJ, ant came to this Court under Art. 136 of the Constitution.\n\nHELD: (i) The receipts in the present case were clearly the fruits of the assessee's professional act1vity and fell under the fourth head of s. 6 of the lndian Income-tax Act 1922. They were however not chargeable to tax under that head because under the corresponding computing section that is. s. 10, an income received by the assessee who kept his accounts on the cash basis in an accounting year in which the profession had not been earned on at all is not chargeable. [297 D-F]\n\nCommissioner of Income Tax v. Express Newspapers Ltd., 53 I.T.R. 250, relied on.\n\n(ii) The income could not be taxed under s. 12 either. Section 12 deals with income which is not included under any other preceding heads covered by ss. 7 to 10. If the income is so included, it falls outside s. 12. It follows that if, as in the present case, the income is profits and gains of profession it cannot come under s. 12. (301 E] The heads of income in s. 6 are mutually exclusive and it would be<incorrect to say that as the receipts could not be brought to tax under the fourth head they could not fall under that head and must therefore fall under the residuary head 'other sources'. There is no justification for the assumption that an income falling under one head has to be put under another head if it escapes taxation under the computing section corresponding to the former head. (298 A;\n\n300 E-FJ The character of the income cannot change merely because the assessee received it at a certain time or adopted a certain system of accounting. (301 BJ\n\nSection 4 does not say that whatever is included in total income must be brought to tax. 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"PROVISION", "start_char": 17024, "end_char": 17029, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Section 14", "label": "PROVISION", "start_char": 17150, "end_char": 17160, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Age of Marriage Act, 1929", "label": "STATUTE", "start_char": 17617, "end_char": 17642, "source": "regex", "metadata": {}}, {"text": "Section 354", "label": "PROVISION", "start_char": 18249, "end_char": 18260, "source": "regex", "metadata": {"linked_statute_text": "the Age of Marriage Act, 1929", "statute": "the Age of Marriage Act, 1929"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 18674, "end_char": 18679, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 354", "label": "PROVISION", "start_char": 18779, "end_char": 18785, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 354", "label": "PROVISION", "start_char": 20583, "end_char": 20589, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 20591, "end_char": 20596, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 10", "label": "PROVISION", "start_char": 20846, "end_char": 20856, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 20864, "end_char": 20881, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 354", "label": "PROVISION", "start_char": 20980, "end_char": 20986, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 7", "label": "PROVISION", "start_char": 21028, "end_char": 21032, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 354", "label": "PROVISION", "start_char": 21063, "end_char": 21069, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 354", "label": "PROVISION", "start_char": 21627, "end_char": 21633, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 354", "label": "PROVISION", "start_char": 23334, "end_char": 23340, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 354", "label": "PROVISION", "start_char": 23522, "end_char": 23528, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 23529, "end_char": 23534, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 46, 10, 12", "label": "PROVISION", "start_char": 23957, "end_char": 23971, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 24111, "end_char": 24116, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 24765, "end_char": 24773, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 24937, "end_char": 24941, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act 1922", "label": "STATUTE", "start_char": 24956, "end_char": 24975, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10", "label": "PROVISION", "start_char": 25092, "end_char": 25097, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act 1922", "statute": "Income-tax Act 1922"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 25403, "end_char": 25408, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act 1922", "statute": "Income-tax Act 1922"}}, {"text": "Section 12", "label": "PROVISION", "start_char": 25417, "end_char": 25427, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act 1922", "statute": "Income-tax Act 1922"}}, {"text": "ss. 7 to 10", "label": "PROVISION", "start_char": 25511, "end_char": 25522, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act 1922", "statute": "Income-tax Act 1922"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 25571, "end_char": 25576, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act 1922", "statute": "Income-tax Act 1922"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 25689, "end_char": 25694, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act 1922", "statute": "Income-tax Act 1922"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 25727, "end_char": 25731, "source": "regex", "metadata": {"linked_statute_text": "Income-tax Act 1922", "statute": "Income-tax Act 1922"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 26332, "end_char": 26341, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 26486, "end_char": 26490, "source": "regex", "metadata": {"statute": null}}, {"text": "S5S", "label": "PROVISION", "start_char": 26593, "end_char": 26596, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_1_295_310_EN", "year": 1966, "text": "NALNIKANT AMBALAL KODY\n\nCOMMISSIONER OF INCOME-TAX, BOMBAY\n\nMay 4~ 1966\n\n[A. K. SARKAR. C.J., J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.]\n\nIndian Income-tax Act 1922, ss. 46, 10, 12-0utstanding fees from legal profession received after cessatwn of practtce-cash sy.stem of accounting-Recetpts whether can be taxed under s. J.2 income from 'other sources'.\n\nThe appellant an advocate who maintained his accounts on the cash system gave up practice when he was elevated to the Bench in\n\n1957. Certain outstandmg professional dues were however received by him in the accounting years 1958 and 1959. These receipts were shown by him as income in his return for the assessment years 1959-60 and 1!160-61 and were assessed by the Income-tax Officer. The appellant then went in revision to the Commissioner of Income-tax contending that the said receipts were not income and had been wrong'.iy taxed. The Commissioner having decided against him the D appe!J.ant came to this Court under Art. 136 of the Constitution.\n\nHELD: (i) The recipts in the present case were clearly the fruits of the assessee's professional actlvity and fell under the fourth head of s. 6 of the Indian Income-tax Act 1922. They were however not chargeable to tax under that head because under the corresponding computing section that is. s. 10, an income received by the assessee who kept his accounts on the cash basis in an accoun~ ting year in which the profession had not been earned on at all is not chargeable. [297 D-F]\n\nCommissioner of Income Tax v. Express Newspapers Ltd., 53 I.T.R. 250, relied on.\n\n(ii) The income could not be taxed under s. 12 either. Section 12 deals with income which is not included under any other preceding heads covered by ss. 7 to 10. If the income is so included, it falls outside s. 12. It follows that if, as in the present case, the income is profits and gains of profession it cannot come under s. 12. [301 E] The heads of income in s. 6 are mutually exclusive and it would bet:incorrect to say that as the receipts could not be brought to tax under the fourth head they could not fall under that head and must therefore fall under the residuary head 'other sources'. There is no justification for the assumption that an income falling under one head has to be put under another head if it escapes taxation under the computing section corresponding to the former head. [298 A;\n\n300 E-F] The character of the income cannot change merely because the assessee received it at a certain time or adopted a certain system of accounting. [301 B] Section 4 does not say that whatever is included in total income must be brought to tax. The income has to be brought under one of the heads mentioned is s. 6 and can be charged to tax only if it is so chargeable under the computing section corresponding to\n\nLJS5SCI .\n\n8UPRBW:E OOURT REPORTS\n\n(1966] 8UPP. 8.C.R.\n\nthat head. Income which falls under the fourth head can be brought A to tax only if it can be so dona under the rules of computation laid down in s. 10. l298 G-299 B] .\n\nIn re: B. M. Kamdar, 14 I.T.R. ~0. not approved.\n\nThe United Commercia[ Bank v. The Commissioner of Income Tax, [1958] S.C.R. 79, Suhsbu111 House Estate Ltd., v. FTy, 15 Tax Cases 266 and Commissioner of Income-tax v.\n\nCocanada Pad~ ami Bank Ltd., 57 l.T.R. 306. relied on.\n\nProbhat Chandra Barua v. King Emperor. a7 l.A. 228, distin auished.\n\nPer Bachawat J. {dissentin.o)- The receipts in question were chargeable under B. 12.\n\nAny income chargeable under a specific head can be charged only C under that head, and no part of that income can be charged again under s. 12. But any part of the total income of the assessee not asse~ sable under a specific head is assessable under the residuary head\n\n:overed by s. 12. [305 C]\n\nThe income in question was not exempt under s. 4(3). The receipts ~- were liable to be included in total income under s. 4. 'This income tould not be incJuded under s. 10 owing to the method of accountini D adopted by the assessee. Nor did it fall under any other head. It fol- !owed that the income must fall unacr the residuary head specified in s. 12. This was not a case where tnc Revenue had taxed or could tax the income under s. 10 and again sought to tax the income Wlder s. 12. [306 C, G-H] avtL APPELLATE JURJSDlCTlO!'oi: Civil Appeab Nos. 731-73~ of 1964.\n\nAppeals by special leave from the order dated January 29, 1963 of the Commissioner of Income-tax, Bombay Cityl, in No. 1/RP/BBY/40 and 41 of 1961.\n\nN. A. Palkhivala. T. A. Ramachandran, S. P. Mehta and\n\n0. C. Mathur, for the appellant.\n\nSarjoo Prasad, R. Ganapathy lyer and R. N. Sachthey, for r the respondent. • The Judgment of SARKAR., C.J. and MUDHOLKAR, J. was de!ivered by SA~KAR, C.J. BACHAWAT, J. delivered a dissenting Opinion.\n\nSarkar, C.J. The assessee was an advocate of the High Court of Bombay and was practising his profession there till March l.\n\nG 1957 when he was elevated to th~ Bench of that Court. He then '>. ceased to carry on his profession and has not resumed it since. As an advocate he had been assessed to income-tax on his professional income, his accounting years for the assessmentc; being the calendar years. When he was raised to the Bench. various fees for professional work done by him were outstanding. In the years 1958 B and 1959 during no part of wllich he had carried on any profession. he received certain mnneys on account of these outstanding f~.\n\n.A.MBAI.AL MOD\"'r L C. I. T. (Sa.r!t-at, C. J .) 297\n\nHis accounts had always been kept on the cash basis. The question is. whether he is liable to pay income-tax on these receipts.\n\nWe shall first make a few general observations. Section 6 of the Income-tax Act, 1922 specifies six sources or heads of income which are chargeable to tax. In order to be chargeable. an income has to be brought under one of these six heads. S. 6 also provides that the chargeability to tax shall be in the manner provided in ss. 7 to 12B of the Act. Each of these sections lays down the rules for computing income for the purpose of chargeability to tax under one or other of the heads mentioned in s. 6. An income falling under any head can only be charged to tax if it is so chargeable under the corresponding computing section. The fourth head of income in s. 6 is \"Profits and gains of business, profession or vocation\" and the fifth head \"income from other sources.,. The fifth head is the residuary head embracing all sources of income other than those specifically mentioned in the section under the other heads. Then we observe that the several heads of income mentioned in s. 6 are mutually exclusive; a particular income can come only under one of them: The United Commercial Bank v.\n\nThe Commissioner of Income Tax( 1).\n\nWe now turn to the present case. The receipts in the present case are the outstanding rlues of professional work done.\n\nThey were clearly the fruits of the assessee's professional activity.\n\nThey were the profits and gains of a profession. They would fall under the fourth head. viz., \"Profits and gains of business. profession or vocation\". They were not. however. chargeable to tax under that head because under the corresponding computing section. that is. s. 10, an income recdved by an assessee who kept his accounts on the cash basis in an accounting year in which the profession had not been carried on at all is not chargeable and the income in the present case was so received. This is reasonably clear and not in dispute: see Commissioner of Income Tax v. Express\n\nNewspapers Ltd.e).\n\nCan the receipts then be income falling under the residuary head of income and charged to tax as such? The Commissioner of Income-tax from whose decision the present appeal has been taken by the assessee, held that it was chargeable under that head. He came to that conclusion on what he thought were the general principles and also on the authority of a certain observation of Chagla. J. in Re. B. M. Kamdare). The observation of Chagla. J. does not seem to us to be of much assistance for the decision in that case was not based on it nor is it supported by reasons. We find ourselves unable to agree with the learned Judge. We may add that apart from the observation in Kamdar's case e), there does not appear to be any direct authority supporting the view of the Commissioner.\n\n(') rt958] S.C.R. 79. (I) fl9134] 53 I.T.R. 250: [1964] 8 S.C.R. 1H9.\n\n(') 14 J, T.R. 10. l.!S3SCI-2l(il)\n\nSUPREME OOURT REPORTS J . (l966)~SUPP, S.C.R. . . :, ..\n\nAs to the general principles, we first observe that as the heads of income are mutually exclusive, if the receipts can be brought under the fourth head, they cannot be brought under the residuary head. It is said by the Revenue that as the receipts cannot be brought to tax under the fourth head they cannot fall under that head and must therefore fall under the residuary head. This argument assumes. in our view, without justification, that an income falling under one head has to be put under another head if it is not chargeable under the computing section corresponding to the former head. If the contention of the revenue is right. the position would appear to be that professional income of an assessee who keeps his account on the cash basis would fall under the fourth head if it was received in a year in which the profession was being carried on. but it wouJd take a different character and fall under the residuary head if received in a year in which the profession was not being carried on. We are unable to agree that this is a natural reading of the provisions regarding the heads of income in the Act. Whether an income falls under one head or another has to be decided according to the common notions of practical men for the Act does not provide any guidance in the matter. The question under which head an income comes cannot depend on when it was received. If it was the fruit of professional activity. it has always to be brought under the fourth head irrespective of the time when it was received. There is neither authority nor principle for the proposition thaL an income arising from a particular head ceases to arise from that head because it is received at a certain time. The time of the receipt of the income has nothing to do with the question under which particular head of income it shouJd be assessed.\n\nIt is then said that the receipts had to be included in the total income stated in s. 4 and since they do not fall under the exceptions mentioned in that section, they must be liable to tax and, therefore, they must be considered as income under the residuary head as they could no~ otherwise be brought to tax. This contention seems to us to be iU-founded. \\Vhile it is true that under s. 4 the receipts are liable to be includ.d in the total income and they do not come under any-:ot the exceptions, the contention is based on the assumption that whatever is included in total iucome under s. 4 must be liable to tax. We find no warranty for this assumption. Section 4 docs not say that whatever is included in total income must be brought to tax. It does not refer at all to chargeability to tax. Section 3 states that \"Tax .... .. shall be charged ...... in accordance with. and subject to the provisions. of this Act in respect of the total income\". This section does not, in our opinion, provide that the entire total income shall be chargeable to tax. It says that the chargeability of an income to tax has to be in accordance with. and subject to the provisions of the Act.\n\nThe income has therefore to be brought under one of the heads fn s. 6 and can be charged to tax only if it is so chargeable under\n\nr r\n\n~ ..\n\nr--\n\n~[-\n\n. \"\"\n\n! -~\n\n~\"f~ r!\n\n'<1 ..\n\n~· 1!.'! -·\n\n\" -·\n\n~ .. r ..\n\n'I-I n\n\n~, ;;\n\nH \" {! '\n\n' I\n\nAMB.ALAL MODY v. C. I. T. (Sarkar~ 0. J.) 299\n\nthe computing section corresponding to that head. Income which comes under the fourth head, that is~ professional income, can be brought to tax only if it can be so done under the rules of coput.a~ tion laid down in s. 10. If it cannot be so brought to tax~ 1t will escape taxation even if it be included in total income under s. 4.\n\nFurthennore, the expression \"total income\" in s. 3 has to be understood as it is defined in s. 205). Under that definition. total income means \"total amount of income, profits and gains referred to in sub-s. ( l) of s. 4 computed in the manner laid down in this Act'\\ that is, computed for the purpose of chargeability under one of the sections from s. 7 to s. 12-B. The receipts in the present case, as we have shown, can only be computed for chargeability to tax, if at all, under s. 10 as income under the fourth head. If they cannot be brought to tax by computation under that section. they would not be included in \"total income\" as that word is understood in the Act for the purpose of chargeability. That all income included in total income is not chargeable to tax may be illustrated by referring to income from the SO'!JfCe mentioned in the third head in s. 6, namely, \"Income from property\". The corresponding computing section iss. 9 which says that tax shall be payable on income under this head in respect of bona fide annual value of property.\n\nJt is conceivable that income. actually received from the property in a year may exceed the notional figure. The excess would certainly be liable to be included in total income under s. 4. It however, cannot be brought to tax as income under the head \"other sources\", see Salisbury House Estate, Ltd. v. FryC). It is an income which cannot be taxed at all though it is included in total income as defined in s. 4.\n\nIn Probhat Chandra Barua v. King Emperor(2) it was no doubt said that s. 12 which is the computing section in respect of the residuary head of income. was clear and emphatic and expressly framed so as to make the head of \"Other sources\" describe a true residuary group embracing within it all sources of income, profits . and gains. provided the Act applies to them. that is, provided they are liable to be included in total income under s. 4 which deals with income to which the Act applies. We are in full agreement with that observation but we do not think tijat it affords any support to the contention that all income liable to be included within total income under s. 4 must be brought to tax. The observation must be read keeping in mind the undisputed principle that a source of income cannot be brought under the residuary head if it comes under any of the specific heads, for the Judicial Committee could not have overlooked that principle. If we do that, it will be clear that all that the Judicial Committee said was that all sources of income which do not come under any of the other heads of income can be brought under the residuary head. The words used are \"embracing ... all sources of income\" and not aii income. It did not say that an\n\n(1) 15 T.C. 266.\n\n(S) 57 I., A. 228.\n\nsoo\n\n~UPRP!II~ OOURT 1\\P.P<'>~TS f1966J 8UPP. 8.C.B.\n\nincome liable to b~ included in the total income is chargeable to tnx as income under the residuary head if it is not chargeable under a specific head under which it normally falls. In Probhat Chandra\n\nBarva's case(') the Judicial Committee was not concerned with that aspect of the matter; the only question before it was, whether zamindari and certain other income fel1 under the third head of income from property, as the word 'property' was understood in the Act.\n\nAnother aspect of Probhat Chandra Barua's cascn requires a mention. The question that there arose, as we have just now said, was, whether the Income--tax Act did not impose a tax on the income of a zamindar derived from his zamindari and certain other properties. It was said on behalf of the assessee that the zamindari and the other income being income from property fel1 under the third head and could be brought to tax only under the correspond ing computing section, s. 9. It was pointed out that the income could not be chnrged to tax under that section because it dealt only with income from house property which the income concerned was not.\n\nIt was then said that the income could not be ta,; cd under the residuary head because it was really income from property and could be taxed only as such. The Judicial Committee did not accept this contention. It took the view that the word 'property' in the third head \"Income from property .. had to be interpreted as restricted only to that kind of property which is described in the computing section, s. 9 and as that section deals only with house property the income from zamindari and other properties did not fall under the head .. Income from property\". It, therefore. found no difficulty in holding that the 7amindari income was income from the residuary source. We find no support in this case for the view that an income which is admittedly under a specific head can be brought to tax under the residuary bead if it cannot be so brought under the computing section corresponding to that head. That case only held that zamindari income was not income which fe11 under the head ••rncome from property•• and that it could never so fall. It provide~ no warranty for the contention that an income from one source may. in certain circumstances. be treated as income from a different source. which is the contention of the Revenue in the present case.\n\nWe think it right also to observe that if the receipt'\\ in the present case could be treated as income from the residuary source. the position would be most anomalous. We have earlier said that if that were so. the placing of an income under this head wouh! depend on the act of the assessee, it would depend on the time when the assessee chose to receive it. That we conceive is not u situation which the Act contemplates. But there is another nnd stronger reason to show that the Act did not contemplate it. Suppose the assessee had kept his accounts on the mercantile basis.\n\nF ,\n\n• -\n\nAMBALAL MODY fl. O. T. T. (Sa.rka.r, C. J.) 301\n\nA He would then have been charged to tax on these receipts in the year when the income accrued which must have been a year when he was carrying on his profession as an advocate. It could not then have been said that the receipts should be taken under the head\n\n\"other sources\". If we are tO accept the contention of the Revenue, we have to hold that the method of book-keeping followed by an B assessee would decide under which head a particular income will go. If the Revenue is right, the income of the assessee would go under the fourth head if the method of accounting was mercantile and it would go under the fifth head if the accounting was the cash basis. We are whollv unable to take the view that such can be the position under the Act. The heads of income must be decided from the nature of the income by applying practical notions C and not by reference to an assessee's treatment of income: see Commissioner of Income-tax v. Cocanada Radhaswami Bank\n\nLtd.(l).\n\nIt now remains to see whether s. 12 justifies a view contrary to that which we have taken. It lays down the rules for computation of income under the head \"Other sources\". It says that tax under the head \"Income from other sources\" shall be payable in respect of income of every kind which may be included in the total income if not included under any of the preceding heads. It seems to us dear that the words \"if not included under any of the preceding heads\"-which refer to the heads considered in ss. 7 to 10-refer to income and not to a head of income. S. 12, therefore. deals with income which is not included under any of the preceding heads.\n\nIf the income is so included, it falls outside s. 12. Whether an income is included under any of the preceding heads would depend on what kind of income it was. It follows that if the income is profits and gains of profession. it cannot come under s. 12. Section\n\n12 does not say that an income which escapes taxation under n preceding head will be computed under it for chargeability to tax.\n\nIt only says-and this is most important-that an income shall be chargeable to tax under the head \"other sources\" if it does not come under any other head of income mentioned in the Act.\n\nSection 12 therefore does not assist the contention of the Revenue\n\nthl:lt professional income which cannot be brought to tax under s. 10 may be so brought under s. 12.\n\nFor these reasons we have come to the conc1usion that thr 6 receipts were not chargeable to tax either under the head of pro# fessional income or under the residuary head. It was not said thal the receipts might be brought to tax under any other hetJd. In our opinion. therefore. the receipts were not chargeable to tax at all.\n\nH We accordingly allow these appeals with costs. --------------------------- ..\n\n(1) 57 I.T.R. 306: [196:1] 3 S.C.R. 619.\n\n8'0PlUDO OOURT REPORTS\n\n(1966) BUPP, S.C.R.\n\nBachwat, J. These appeals raise the question whether the professional income of an assessee whose accounts are kept on a cash basis, received by him during his life-time after the discontinuance of the profession and after the close of the accounting year in which the profession is discontinued. is assessable to income-tax either under s. 10 or under s. 12 of the lndinn Income-tax Act. 1922.\n\nThe assessee was practising as an advocate in the High Court of Bombay till March I, 1957 when he was appointed a Judge of the High Court at Bombay. His method of accounting was cash, and his accounting year was the Calendar year. The relevant orders of the Income-ta~ Officer suggest that his accounting year was the financial year ending on March 31. but it is now the common case of both the assessee and the Revenue that the accounting year was the Calendar year.\n\nIn the assessment year, 1958-59, the assessee was assessed to income-tax in respect of the entire professional income received by\n\nhim, during the Calendar year including the income received after\n\nMarch 1, 1957. It js not disputed that the assessee was liable to pay tax in respect of the income received by him between March I, 1957 and December 31, 1957.\n\nDuring the Calendar years, 1958 and 1959, the assessee received the sums of Rs. 30,570 and Rs. 15,240 respectively on account of professional fees for work done by him before March\n\nl. 1957. In the returns for the assessment years, 1959-60 and 1960- 61, the assessee included the aforesaid two sums as his income from profession. By his orders dated May 30, J 960 and October 26, 1960, the Income-tax Officer subjected the aforesaid two sums to tax treating them as receiptc; of fees for professional services rendered in the earlier years and as part of the total income of the assessee. On ApriJ 4, 1961, the assessee filed two revision petitions before the Commissioner of Income-tax, Bombay City I. under s. 33'-A contending that the aforesaid two sums were no part of his\n\ntotal income of the relevant accounting years and were included in his returns through an error and asking for their exclusion from bis assessable income for the relevant assessment years.\n\nBy a common order dated January 29, 1963, the Commissioner of Income-tax held that the two sums were assessable on general principles and also on the authority of the decision in Re. B. M.\n\nKamdar('). and rejected the revision petitions. From this order. the assessee now appeals to this Court by special leave.\n\nThe first question is whether the two sums were assessable to\n\nta~ under s. 10 of the Indian Income-ta~ Act, 1922. Section 10(1) provides:\n\n\"The tax shall be payable by an assessee under the head 'Profits and gains of business. profession or vocation' in respect of the profits and gains of any business, profession or vocation carried on by him.\"\n\n(1'...,.... ) \"\"\"\"[1-=-~ =-=- ] ...,.1-;;::\n\n.T:-.R.':-. -;-1~0.--------------\n\n• u !l !1\n\nII'\n\n~ ..\n\n~ ;:,\n\n\"' ! ' ;..\n\n\" ,..\n\nI M\n\nH!lBALAl, MODY V. C. I. T. (Baohawat, J .) 303\n\nSection 10 applies to the profits and gains of any business, profes sion or vocation carried on by the assessee. Considering that the subject-matter of charge is income of the previous year, the expression \"carried on by him\" must mean \"carried on by him at any time during the previous year.\" To attract s. 10(1). it is not essential that the assessee should have carried on the profession throughout the entire previous year or at the time when he realised the outstanding professional fees~ it is sufficient that he carried on the profession at any time during the accounting year in which he realised his fees, see in re. Kamdar(').\n\nOn the other hand. the section does not apply to the profits and gains of any profession which was not carried on by the assessee at any time during the prev1ous year.\n\nOur attention was drawn to several decisions of this Court dea1ing with s. 10(2)(viii) and the second proviso to s. 10(2)(vii). In Commssioner of Income-tax v. Express Newspapers LtdC) and Commissioner of Income-tax v. Ajax Products Lttl.(3), this Court held that one of the essential conditions of the applicability of the second proviso to s. 10(2)(vii) is that during the entire previous year or a part of it the business shall have been carried on by the assessee. In the Express Newspapers Ltd. casee). at page 259. Subba\n\nRao. J. said: ''Under section 10(1), as we have already pointed out, the necessary condition for the application of the section is that the assessee should have carried on the business for some part of the accounting year., These observations support the conclusion that the profits and gains of a business or profession are not chargeable under s. 10(1), if the assessee did not carry on the business or profession during any part of the previous year.\n\nIn the instant case, the assessee discontinued his profession as soon as he became a Judge of the Bombay High Court. He could not carry on the profession after he became a Judge. It is not possible to hold that he continued to carry on the profession merely because he continued to realise his outstanding fees. It follows that the assessee did not carry on his profession as an advocate at any time during the Calendar years, 1958 and 1959.\n\nThe receipts of the outstanding professional fees during 1958 and 1959 were not profits and gains of a profession carried on by the assessee during those years, and were not assessable to tax under s. 10(1).\n\nSection 13 provides that except where the proviso to that section is applicable. the income for the purposes of s. 10 must be computed in accordance with the method of accounting regularly H employed by the assessee. Section 13 is mandatory. In the instant\n\n(l) [1946] I.T.R. 10.\n\n(1) [1964} 53 I.T.R. 260, [1964]8 S.C.R. 189.\n\n{8) [1965] 55 I.T.R. 74:1: [1965] I S.C.R. 700.\n\n30-1\n\n~L~REKE COURT REPORT~\n\n[1008] 8UPP. 8.0.11..\n\ncase, <.ts the assessee employed the cash method of accounting and A as the proviso to s. 133 did not apply, his professional income during 1957 and the previous accounting years had to be computed on the cash basis. The Revenue had no option in the matter.\n\nHad the assessee adopted the mercantile method of accounting. the entire income of the assessee arising from his profession before\n\nMarch 1. 1957 would have been included in his assessable income 8 for those years. and no portion of it would have escaped assessmt.!nt under s. J 0. Rut as the assessee adopted the cash method of accounting. the outtamling fees could not be included in the as;, essment for those years. The question is whether this income now escapes taxati_on altogether. There is no doubt that by the method of accounting employed by the assessee. he has chosen to treat th~ receipts in question as income of the accounting years~ C 1958 and 1959.\n\nThe Revenue cbims that the income was assessable to tax Ut'!dcr s. 12. On behalf of the assessee, Mr. Palkhiwala submitted tlnt (I) the income from the defunct source of profession. though not assessable under s. J 0, continued to faH under the head covered by s. I 0 and the residuary head under s. 12 was not attmcted. (2) D s. 12 covers residual heads and not residual receipts. and (3) that if s. 12 were applied to this income. the assessee wollld suffer in~\n\njustice because the deductibns properly allowable under s. 10 in respect of the income could not be allowed. On the other hnnd, Mr. Sarjoo Prasad appearing on behalf of the Revenue st1bmitted that the receipts in question were part of the total income of the asc; essec for the relevant accounting years chargeable under s. 3 E read with ss. 2(15) and 4. and as the income was not exempt from tax and as it did not fall under s. 10 or any other head, it must be assessed to tax under s. 12. In support of his contention. Mr.\n\nSnrjoo Prasad relied upon the opinion of Chagla. J. in rl'.\n\nK amdar( 1 ) at p. 58.\n\nBy s. 3 read with ss. 2( 15) and 4. income-ta1. is charged for every year in accordance with and subject to the provisions of the Act in respect of the total income of any previous year of the assessee computed in the manner laid down in the Act, including all incoiTle, profits and gains from whatever source derived, which accrue or arise or are received or are deemed to accrue. arise or to be received as provided by s. 4~ I) and which are not exempted under s. 4(3). The crucial words in s. 4 are •'from whntever source derived\". The nature of the source docs not affect the chargeability of the income. Section 6 sets out the heads of income chargeable to tax. The several heads arc dealt with specifically in sg. 7, 8. 9. 10 and 12. Income is classified under different heads for the purpose of computing the net income under each head after making suitable deductions. Income, profits and gains from wh:\\tever source derived. included in the total income falJ under one -------------------------\n\n) 4 •\n\nI •\n\n'' ·:;\n\n(Badmrot, J .)\n\nhead or the other. If any part of the total income does not fall under the specific heads under ss. 7. 8, 9 and 10, it must faU\n\nunder the residuary head under s. 12. Section 12( 1) provides :\n\n\"The tax shall be payable by an assessee under the bead 'Income from other sources' in respect of income, profits and gains of every kind which may be included in his total income (if not included under any of the preceding heads).\" Income, profits and gains of every kind are covered by s. 12. pro\n\nvided two ccmditions are satisfied, viz., (l) they are not included under any of the preceding heads and (2) they may be included in the total income of an assessee. Any income chargeable under a specific head can be charged only under that head, and no part of that income can be charged again under s. 12. But any part of the total income of the assessee not assessable under a specific head is assessable under the residuary head covered by s. 12.\n\nReferring to similar words in s. 12(1), as it stood before its amend~\n\nment in 1939, Lord RusseH observed in Probhai Chandra Barua\n\nv. The King Emperor(~):-\n\n\"These words appear to their Lordship!S clear and emphatict and expressly framed so as to make the sixth head mentioned in s. 6 describe a true residuary group embracing within it all the sources of inct:>me. profits and gains provided the Act applies to them i.e., provided that they accrue or arise or are received in British India or are deemed to accrue or arise or to be received in British India, as provided by s. 4, sub-s. (1). and are not exempted by virtue of s. 4. sub-s. (3).\" Referring to the words \"income. profits and gains'' in s. 12, Lord Russell said in Gopdb Saran Narain Shigh v. Income-tax Commis sioner(2):\n\n\"The word 'income• is not limited by the words 'profits' and 'gains'. Anything which can properly be described as income is taxable under the Act unless specially exempted.\" And Sarkar, J. said in Sultan Brothers v. Commissioner of Jncometat'):\n\n\"Section 12 is the residuary section covering income, profits and gains of every kind not assessable under any of G the heads specified earlier.\" Section 6 gives the short label of each head, but the actual contents of the several heads are to be found in ss. 7, 8. 9, I 0 lHld 12. Take the head \"(iii) Income from propertyn In s. 6.\n\nSection 9 shows that only income from buildings or lands appurtenant thereto, of which the assessee is the owner, falJs under this R head. Income from other properties, e.g., land not appurtenant to\n\n(1) fl9301 L.R. 57 LA. 228,239.\n\n(~) [1935} L.R. 62 I.A. 207, .213.\n\n(8) (1964J 51 I.T.R. 35'!, 3:>7: [1964] 5 s.c.R. so:-.\n\n306 l\"PREME COURT REPORTS\n\n[1966] SUPP. S.C.R.\n\na building is outside the purview of this head and falls under s. 12. & Again. take the head ''(iv> Profits and gains of business, profession or vocation.\" Section I 0 on its proper construction applies only to the profits and gains of a business, profession or vocation carried on by the assessee during any part of the previous year. Profits and gains of business, profession or vocation of the assessee which was not carried on by him during any part of the previous year being B outside the purview of s. 10 must necessarily fall under s. 12.\n\nMr. Palkhiwala conceded that the receipts in question were the income of the assessee. He also admitted that the income was not exempt from tax under sub-s. (3) of s. 4. The income was received by the assessee in the taxable territories during the rele~ vant previous years. The receipts are, therefore. liable to be in~ c eluded in the total income. We have found that this income cannot be included under s. 10. It is common case that it cannot be included under any other head. It follows that the income must fall under the residuary head specified in s. 12.\n\nSection 12 dealing with the residuary head is framed in general terms and in computing the income under this head. requires deduction of any expenditure (not being in the nature of capital D expenditure) incurred solely for the purpose of making or earni.ng such income. As the income in the present case falls under s. 12, the allowance for the necessary expenditure must necessarily be given under this head and not under s. 10. There is no question of the assessee suffering an injustice by not being given the allowances under s. 10. He cannot be given the allowances under s. 10, as the income does not fall under that section.\n\nCounsel rightly submitted that s. 12 covers residual heads and not residual receipts. In this connection, he relied upon Salisbury /louse Estates Ltd. v. FryC). That case decided that the variou~ Schedules of the English Income-tax Act, 1918 are mutually ex~ elusive, Sch. A must be applied to the class of income faiHng under it and no pay of this income is chargeable under Sch. D.\n\nF This decision received the approval of this Court in United Com~ mercia/ Bank Ltd. v. The Commissioner oj lnco;;;,•tax('). On the principle of this decision. if a particular income is taxable as income from property under s. 9. any residunl receipt from the property in excess of the annual value assessed under s. 9 cannot be assessed again as residual income under s. 12. This principle has no application to the case before us. Th~ relevant professional G income of the assessee is not taxable under s. 10 or under any other specific head, and it must. therefore, be taxed under s. 12. This is not a case where the revenue has taxed or can tax the incomeunder s. 10 and again seeks to tax the income under s. 12.\n\nMr. Palkhiwala next referred us to several English decisions in support of his contention that the receipts of the professional\n\n---~--· ·--·-·--· ---.--\n\n(1) til T.C. 266.\n\n(I) [I9'8) S.C.H. 79.\n\n-.I(\n\nC.\n\n)-·\n\nJ.MBALAL AODY V~ C:. I. 1'. (Bachawat, tf.) 307\n\nincome after the discontinuance of the profession are not assessable to income-tax. Rowlatt, J. in Bennett v. Ogston(l) said:\n\n\"When a trader or a follower of a profession or vocation dies or goes out of business-because Mr. Needham is quite right in saying the same observations apply here-and there remain to be collected sums owing for goods supplied during the existence of the business or for services rendered by the professional man during the course of his life or his business, there is no question of assessing those receipts to Income Tax~ they are the receipts of the business while it lasted, they are arrears of that business. they represent money which was earned during the life of the business and are taken to be covered by the assessment made during the life of the business, whether that assessment was made on the basis of bookings or on the basis of receipts.\" These observations received the approval of the House of Lords in Purchase v. Stainer's Executors(2) and Carson v. Cheyney's\n\nExecutors(3). In the last two cases, the Court held that the pr~ fessional earnings of a deceased individual realised by his executor were not liable to income-tax either under Case II or under Cases III and VI of Schedule D of the English Income-tax Act, 1918.\n\nIn Cheyney's case(s). the professional earner had died in one of the assessment years and part of his earnings had been realised by his executor during the same assessment year. It is remarkable, however, that in Cheyney's case(3) at p. 265 Lord Reid said:\n\n\"In my opinion, the ground of judgment in this House in\n\nStainer's case was that payments which are the fruit of professional activity are only taxable under Case II and cannot be taxed under Case III, even when it is no longer possible when they fall due to tax them under Case II. and when looked at by themselves and without regard to their source they would fall within Case III. I am not sure that I fully appreciate the rea sons for the decision, but I have no doubt that that is what was decided, and I am bound by that decision whether I agree with it or not.\" The rule in Stainer's case(!), rests on shaky foundations and has been subjected to criticism even in England. The rule is subject to exceptions in England, and as pointed out by Jenkins, L. J. in Stainer's case(!) is subject to the application of Rule 18 of the General Rules. The Indian Income-tax Act, 1922 is not pari materia, the scheme is in many respects different from the scheme of the English Act, and I think that the rule in Stainer's caseC) is not applicable to the Indian Act.\n\nIn England, the tax is on the current year's income, the Revenue has the option to assess the\n\n(1) J5 T.C. 374,378.\n\n(1) [1951] 32 T.C. 367.\n\n( 8) [1960] 38 T.C. 240.\n\nSOB ~UP~EME OOURT Rltl'OR1'$ (196~) 8UPP, 8.0.i.\n\nincome on the accrual basis, and even if it chooses to make an asses_sment on the cash basis, the entire accrued income might be constdered to be covered by the assessment. But under the Indian law. the tax is on the previous year's income, the Revenue has no option to assess the income from a business or profession on the accrual basis if the accounts of the assessee are regularly kept on the cash basis, and the assessmenl on the cash basis cannot cover the receipts in the subsequent years.\n\nMoreover, it is impossible to say under the Indian law that aU receipts of outstanding professional fees after the retirement of the assessee from profession escape taxation. Beyond doubt, the receipt of the professional fees in tho accounting year during which the assessee ried on the profession is assessable under s. 10, though at the time of the receipt he has retired from the profession.\n\nThe decision in The Commissioner of Income-tax, Bombay City I. Bombay v. Amarchand N. ShroOC> is entirely distinguishable.\n\nIn that case. this Court held that the income of a deceased solicitor received by his heirs subsequent to the previous year in which he died was not Hable to be assessed to income-tax under s. 24B as his income in the hands of his heirs, and apart from s. 248. no assessment can be made in respect of a person after his death. In the instant case. the assessee is alive. and no ques1ion of assessment under s. 24B arises.\n\nNeither side relied on s. 250>. and. in my opinion. rightly.\n\nThat sub-section gives an option to the Revenue to make an R assessment in the year of the discontinuance of the business or profession on the basis of the income of the period between the end of the previous year and the date of the discontinuance in addition to the assessment, if any, made on the basis of the income of the previous year. The sub-section docs not preclude the Revenue from making an assessment on the professional income under any other section of the Act.\n\nOur attention was drawn to s. 176(4) of the Income-tax Act,\n\n1961. which provides:\n\n\"Where any profession is discontinued in any year on account of the cessation of the profession by, or the retirement or death of, the person carrying on the profession. any sum received after the discontinuance shall be deemed to be the income of the recipient and charged to tax accordingly \"in the year of receipt, if such sum would have been included in the total income of the aforesaid person bad it been received before such discontinuance.\"\n\n(L) {1003] Supp. l S.C.R. 6!)9.\n\n--.(\n\nAMDALAT~ MODY v. 0. I. '1'. (Ba.chawat, J.)\n\nThe note on cl. 178 of the Income--tax Bill, 1961 suggests that this sub-section was passed with a view to give effect to the follo.wing recommendations of the Direct Taxes Administration Enqmry Committee in paragraph 7.81(11) of its Report:\n\n\"There is no provision in the law at present to assess the income received after the cessation of practice or re tirement or death of the assessees carrying on a profession, like Solicitors. Advocates, Doctors. Consulting Surveyors. Engineers etc. The law should be amended in such a way that even on the assessee's cessation of his vocation or retirement from the profession or death income received after such cessation. retirement or death would be taxed.\"\n\nThe Repon does not purport to base its opinion on any judicial decision. The assumption in this Report that there is no provision in the Indian Income-tax Act to assess the entire income received after the retirement or death of professional men cannot be wholly correct, because. beyond doubt, the income received n after the retirement in an accounting year during any part of which the assessee practised his profession is assessable under s. I 0 and the income received after his death by his legal representative during the previous year in which he practised his profession is assessable in the hands of the legal representative under s. 24B.\n\nMoreover, the Report is silent on the question of the assessment of the outstanding profits of business realised by a trader after the E discontinuance of his business. In this case. we are concerned with the interpretation of the Indian Incometax Act. 1922, and the question is whether we can take into account the provision of the later Act in interpretin, g the earlier Act.\n\nIn Craies on Statute Law, 6th Edn, p. 146. the law is stated thus:\n\n\"Except as a parliamentary exposition, subsequent Acts are not to be relied on as an aid to the construction of prior unambiguous Acts. A later statute may not be referred to interpret the clear terms of an earlier Act which the later act does not amend. even although both Acts are to be construed as one. unless the later Act expressly interprets the earlier Act; but if the earlier Act is ambiguous. the later Act may throw light on it. as where a particular construction of the earlier Act will render the later incorporated Act in effectual.\"\n\nThis passage is fully supported by the decision of the House of Lords in Kirkness v. John Hudson & Co.(!). In Hariprasad Shiv- H sltankar Shukla v. A. D. Divikar(i). this Court gave effect to the\n\n(l) [1005) A.O. 696: [if.l51l] 2 All. E.R. lUi~.\n\n(2) [19 ~'i] 8.C.R. 12 l ,14.0.\n\nSUPREHB OOURT RBPORT8\n\n(1966) SUPP. B.C.R.\n\nplain meaning of an unamended Act, though on the interpretation given by it a later amendment would become largely unnecessary, and quoted with approval t:he following passage in the opinion of Lord Atkinson in Ormond Investment Co. Limited v. Bells(~): \"An Act of Parliament does not alter the law by merely betraying an erroneous opinion of it., I do not find any ambiguity in the clear terms of ss. 2(15), 3, 4, 6, 10, 12 and 13 of the Indian Incometax Act, 1922 and the later Act cannot be used as an aid to their construction. On the construction of the Indian Income-tax Act,\n\n1922. I hold that the profession income of an assessee whose accounts were kept on a cash basis received by him during his lifetime after the discontinuance of the profession and after the dose of the accountmg year in which the profession was discontinued, is assessable to income-tax under s. 12 of the Act.\n\nIn the result, the appeals arc dismissed. There will be no order as to costs.\n\nORDER\n\nIn accordance with the Judgment of the majority the appeals are allowed with costs.", "total_entities": 155, "entities": [{"text": "NALNIKANT AMBALAL KODY", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "NALNIKANT AMBALAL MODY", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, BOMBAY", "label": "RESPONDENT", "start_char": 24, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX, BOMBAY", "offset_not_found": false}}, {"text": "A. K. 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"s. 10", "label": "PROVISION", "start_char": 1303, "end_char": 1308, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act 1922", "statute": "the Indian Income-tax Act 1922"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 1616, "end_char": 1621, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act 1922", "statute": "the Indian Income-tax Act 1922"}}, {"text": "Section 12", "label": "PROVISION", "start_char": 1630, "end_char": 1640, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act 1922", "statute": "the Indian Income-tax Act 1922"}}, {"text": "ss. 7 to 10", "label": "PROVISION", "start_char": 1724, "end_char": 1735, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act 1922", "statute": "the Indian Income-tax Act 1922"}}, {"text": "s. 12", "label": "PROVISION", "start_char": 1784, "end_char": 1789, "source": "regex", "metadata": {"linked_statute_text": "the 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{"document_id": "1966_1_311_372_EN", "year": 1966, "text": ", .\n\nTHE BARIUM CHE.l\\'IICALS L'.J.'D. AND ANR.\n\nTHE COMPANY LAW BOARD AND OTHERS\n\nMay 4, 1966\n\n[A. K. SARKAR, C.J., M. HIDAYATULLAH, J. R.\n\nMUDHOilKAR,\n\nR. S. BACHAWAT AND J. M. SHELAT, JJ.] Companies Act, 1956, ss. lOE, 234, 235, 236 and 237-scope Of- Whether s. 237(b) violative of Articles 14 and 19(1) (g) of the Constitution.\n\nT~ Company Law Board was constituted under Section 10E of the Companies Aet, 1956, and the Central Government delegated some of its powers under the Act, including those under Section 237, to•the lil<Mrd. The Government also framed rules under Section 642(1) ritatl with. Section 1QE(5) called the Company Law Board (Procedure) Rules lml4 Rule 3 of which empowered the Chairman of the Board to\n\ndistribute the business of the Board among himself and other member or members and to specify the cases or classes of cases which were to be considered jointly by the Board. On February 6, 1954, nnder the power vested in him by Rule 3 the Chairman passed an ordev s)!>eci]y!ng the cases that had to be considered jointly by himself and the only other member of the Board and distributing the remaining business betwee;-i h'mself and the member.\n\nUnder this ol'der the business od' ordering investigations under Sections 235 and 23'7 was allotted to himself to be performed by him singly,\n\nOh May 19, 1965 an order was issued on behalf of the Company Law Board under Section 237(b) of the Compan'es Act, appointing E four inspectors to investigate the affairs of the appellant company, on the ground that the Board was of the opinion that there were 1. circumstances suggesting that the business of the appellant company ,.. waB being conducted with intent to defraud its creditors, members or any other persons and that the persons concerned in the management of the affuirs of the company had in connection therewith been guilty of fraud, misfeasence and other misconduct towards the company and its members.\n\nF Soon afterwards the appellants filed a petition under Art. 22'6 of the Constitution for the issue of a wtit quashing the order of the Board on the grounds, inter alia, that the order had been iS5ued ma/a fide that there was no material on which such an order could have been made, etc.\n\n0ne of the affidavits filed in reply to the petition was by the Chl!ir'.lhan of the Company Law Board, in which it was contended, inter alia, that there was material on the basis of which the impugn- G ed order was issued and he had himself examined this material and formed the necessary opinion within the meaning of sec. 237(b) bef0re the issue of the order; and that it was not competent for the court to go into the question of the adequacy or otherwise of such materi'al. In the course of replying to some of the allegations in the petition it was stated in paragraph 14 of the affidavit, however, that ft.Om memorand:a received from some ex-directors of the company H and other exammation it appeared, inter aliu, that there had been del'ay, bungling and faulty planning of the company's ma.in project\n\nreulting_ in double expenditure; that.the company had incurred hui!e losses; there had been a sharp fall m the price of the cdtnJ)any's\n\nT4S5SCI-22\n\n~12 sUPR&llE OOURT REPORTS\n\n(1966) BUPP. S.C.R.\n\nshares; and some eminent persons had resigned from the Board of A D!rectors of the company because of differences with the Managing\n\nDirector on account of the manner in which the affairs of the company were being conducted.\n\nThe appellant's petition was dismissed by the High Court.\n\nIn the appeal to this Court it was contended on behalf of the appellants: B\n\n(I) That the order was made made fide on account of the competing interests of a firm in which the Mmister in charge of the department was interested and also because of his personal hostility against the second petitioner who was the managing director of the company; that the High Court had erred in deciding the petition on the footing that the first respondent Board was an independent authority and that it was its Chairman who on his own had formed the requisite opinion and passed the order and therefore the motive or the evil eye of the Minister was irrelevant; the High Court also erred in failing to appreciate that even though the impugned order was by the Chairman, as under s. 10E(6) it had to receive and in fact received the Minister's agreement, if the Minister's mala fidea were established, that would vitiate the order; furthermore, in the circumstances of the case. the High Court ought to have allowed the appellants an opportunity to establish their case of mala fide by the cross-examination of the Minister and the Chairman, both of whom had flied affidavits.\n\n(2) That clause (b) of Section 237 required two things: (i) the requisite opinion of the Central Government, in the present case, of the Board, and (ii) the existence of circumstances iuggesting that the company's business was being conducted as laid down in sub-clause\n\n(i) or that the persons mentioned in sub-clause (ii) were guilty of fraud, misfeasance or misconduct towards the company or any of its members; though the opinion to be formed is subjective, the existence of circumstances set out In cl. (b) is a condition precedent to the formation of such opinion and therefore even if the impui; ned order were to contain a recital of the existence of those circumstances, the court can go behind that recital and determine whether they did in fact exist, that even taking the circumstances said to have been found by the respondent Board, they were extraneous to sec. 237(b) and could not constitute a basis for the impugned order.\n\n(3) That the impugned order was in fact made on the basis of allegations contained in memoranda submitted by four ex-directorw of the company who continued to be shareholders; and by ordering an investigation unde.r s. 237(b) the respondent Board had in effec'I enabled these shareholders to circumvent the provisions of s. 235 &nd s. 236. On this ground also the impugned order was therefore made mala fide or was otherwise invalid.\n\n(4) That the impugned order was in any case bad as it was passed by the Chairman of the Respondent Board &lone acting under rules under which such a power was conferred in contravention of the provisions of Section lOE. The power under s. 237 was delegated by the Central Government to the Board as a whole and could not in turn be sub-delegated to the Chairman alone in the absence of a provision such as sub-sec. (4A) added to sec. lOE after the impugned order was issued, and which now enabled the solidarity of the Board to be broken. Such sub-delegation could not be done in accordance with rules made under s. 10E(5) which merely enabled the procedure of the Board to be regulated.\n\nBARIUM CIIEM!CALS v. COMP. LAW BD. (Mudholkar, J.) 313\n\n(5) That the impugned order was bad because Section 237(b) itself was bad as offending against Arts. 14 and 19 of the Constitution.\n\nHELD: (By Hidayatullah, Bachawat and Shelat, JJ., Sarkar C.J. and Mudholkar J. dissenting): The impugned order must be set aside.\n\n(1) (By the Court): The respondents had failed to show that the impugned order was passed ma!a fide. [330 E; 335 B-C; 342 F; 354 F-G].\n\n(Per Sarkar C.J. and Mudholkar J.3: The decision to order the investigation was taken by the Chairman of the respondent Board and there was nothing to indicate that in arriving at that decision he was influenced by the Minister. If the decision arrived at by the Chairman was an independent one, it could not be said to have been rendered mala fide because it was later approved by the Minister.\n\n[320 D].\n\nIn a proceeding under Art. 226 of the Constitution, the normal rule is, as pointed out by this Conrt in The State of Bombay v. Pur shottam Jog Naik [19541 S.C.R. 674, to decide disputed ciuestions on the basis of affidavits and that it is within the discretion of the High Conrt whether to allow a person who has sworn an affidavit before it to be cross-examined or not. The H.gh Conrt having refused permission for the cross-examination, it would not be appropriate for this Conrt, while hearing an appeal. by special leave, to interfere lightly with the exercise of its d, scretion. [320 G-H; 321 A].\n\n(Per Shelat J.): The allegations of mala fides in the petition were not grounded on any knowledge but only on \"reasons to believe11. Even for their reasons to believe, the appellants had not dis-- closed any informaton on which they were founded. No particulars of the main allegations were given. Although in a case of this kind it would be difficult for a petitioner to have persona! knowledge in regard to an averment of ma!a fides, where such knowledge is wanting, he must disclose his source of information so that the other side gets a fair c.hance to verify it and make an effective answer. In the absence of tangible materials, the only answer which the respondents could array against the allegations as to ma!a fides would be one of general denial. [352 D-H].\n\nIn a petition under Art. 226, there is undoubtedly ample power in the High Court to order attendance of a deponent in court for Ji' being cross-examined. Where it is not possible for the court to arrive at a definite conclusion on account of there being affidavits on either side containing allegations and counter-allegations, it would not only be desirable but in the interest of justice the duty also of the court to summon a deponent for cross-examination in order to arrive at the truth. However, the High Court was rightly of the view that in the present case even if the tv.)o deponents were to be called for cross-examination, they could in the absence of particllars of allegations of mala fides and the other circumstances of the case, G only repeat their denials in the affidavits of the allegations in the petition and therefore such cross-examination would not take the court any further than the affidavits. [353 D-H].\n\n(2) (Per Hidayatullah, Bachawat and Shela! JJ. Sarkar, C. J. and Mudholkar J. dissenting,): The circumstances d'sclosed in paragraph H of the. affidavit must be regarded as the only materials on H the basis of which the respondent Board formed the opinion before ordering an investigatiun under Section 237(b). These circumstances cuuld not reasonably suggest that the business of the company was being conducted to defraud the creditors, members or other L/llliSCI-22(•)\n\nSUPl<EME COt; RT Rl:PURTS\n\n[1966] 8UPP. S.C.I\\.\n\npersons or that the management wa' guilty of fraud towards the .l company and its members; tW..y were therefore extraneous to the matters mentioned in s. 237(b) and the impugned order was ultra\n\nviTes the Section. [339 A-D, G-H; 340 A; 342 G-H: 343 A~· 365 D-E\n\n367 A.C]. ' '\n\n(Per Hidayatullah J.): The power-under Section 2:fl(b) in a dia:ret1onacy power and the first requirement for its exercise is the hGnest formation of an opinion that an investigation is necESSary.\n\nB Th.e next requirement is that ''there arc circumstances suggesting\" the inferences set out in the Section, An action, not based on circumstances suggestmg an inference of the enumerated k•nd will not be valid. No doubt the formation of opm>on is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable, If their existence is questioned, it has to be proved at least prima facie. It is not sufficient to assert, that\n\nthe circumstances exist and give no clue to what they are, because C the aircwnstances must be such M to lead to conclusions of certain dcfini1leness. The conclusions must relate to an intent to defraud, a fraudulent or unlawful purpose, fraud or misconduct or the withhobiing of information of a particular kind. [335 F-H; 3S6 G-H].\n\nAn examination of the affidavit filed by the Chairman of the rmrent Board showed that the material examined by the Chairman merely indicated the need for a deeper probe. This was not suftlc'.ent. 'l'he material must suggest certain inferences and not the .B need for \"a deeper probt.:\". The former is a definite conclusion the lat:ter a mere fishing expedition. [338 E-H].\n\n(Pe'!' She lat J .) : Althouugh the formation of opinion i:iy central Government is a purely subjective process c:.nd such an cipiniun canuot be challenged m a court on the ground of propnety, reasonableness or sufficiency, the Authurity concerned is nevertheless required to arrive at such an opinion from circumstances suggesting what is set out in sulrelauscs (i), (Ii) or (iii) of s. 237(bJ. The expresii1 sion uclrcurnstances suggesting\" cannot support the construction that even the existence of circumstances is a matter of subjective opinion. It is hard to contemplate that the legislature cou; d have left to the subjective process both the formation of opinion and also the existence of circumstances on which it is to be founded. It is also not reasonable to say that the clause permitted the Authority to say that it has formed the opinion on circumstances which in its opinion exjst and which in its opm:on suggest an intent to defraud or a frauj' dulent or unlawful purpose. If it ls shown that the circumstances do not exist or that they are sach that it is imposs:ible for any one to form an opinion th.arefrom sugge:-.t:We of the matters f'numer.ated in s. 237\n\n(b) the opinion is challenge.1ble on the ground of non-ai; plicat:on of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statut<>. I 362 H; 363 A-G].\n\nWer Sarkar C.J., and Mudholkar J., dissenting): An examination of section 23'1 would show that cl. (b) thereof confers a diser& G tion upon the Board to appoint an Inspector to investigate the aft'ains of a company. The words \"in the opinion or' govern the word \"there are circumstances suggesting\" and not the words \"may do so\". The words 'circumstances' and 'suggesting' cannot be dis..c; ociated without making it impossible for the Board to form an 'opinion' at all. The formation of an opinion must, therefore, be as to whether there are circ:umstances suggesting the existence of one or H more of the matters in sub-els. (i) to (iii) and not about anything else. The opinion must of course nat have been arrived at mala /idi!.\n\nTo say that the opinion to be formed must be as to the neeeseit.y\n\nA •\n\nF •\n\nOARll'M CHE>!TCALS '' COMP. L.lW Im. (M.uilholi'f'lr, J.) 31'5'\n\nof making an investigation would be making a clear depRrture from the language in which s. 237 (b) is couched. It is only after the f~ mation of certain opinion by the Board that the stage for exercising the discretion conferred by the provision is reached. The discretion conferred to order an investigation is administrative and not\n\njudicial since its exercise one way or the other does not affect the rights of a company nor does it lead to any serious consequences as, for instance, hampering the business of the company. As has been pointed out by this court in Raja Narayanalal Bansilal v.\n\nManed< Phiroz Mistry and Anr. fl9611 1 S.C.R. 412, the investigation undertaken under this provision is for ascertaining facts and is thus merely exploratory. The scope for judicial review of the action of the Board must, therefore be strictly limited. If it can be shown that the Board had in fact not formed an opinion its order could be ooccessfully challenged. There is a difference between not forming an opinion at all and forming an opinion upon grounds, which, if a court could go into that question at all, could be regarded as inapt or insufficient or irrelevant.\n\nThe circumstances set out in paragraph 14 of the affidavit of tba Chairman of the respondent Board were nothing more than certain conclusions drawn by the Board from some of the material which it had before it. Moreover, the express:on \"inter aria\" used bv the Chairman v, i<ould show that the conclusions set out by him specifically were nm the only ones which could be drawn from the material before the Board. It would not therefore be right to construe the affidavit to mean that the only conclusions emerging from the material before the Board were those set out in paragraph 14. [352 A-El\n\n(3) (Per Sarkar C. J. and Mudholkar J.): As it could not be said that the investigation had been ordered either at the instance of 4 ex-directors of the company or on the sole basis of the memoranda submitted by: them. there was no contravention of the provisions of Sections 235 and 236 of the Act. f328 C, El.\n\n(4) (Per Sarkar C. J., Mudholkar and Bachawat JJ., Hidayatullall. and Shelat JJ., dissenting): Rule 3 of the Company Law Board\n\n(Procedure) Rules. 1964, ancl the order dated April 6, 1964 made pm-- suant thereto distributing the business of the Board, were both valid.\n\nThe impugned order was not therefore invalid because it was made by the Chairman alone and not by the Board. [33() C. D; 342 BcC].\n\n(Per Sarkar C.J. and Mudholkar J.): Bearing in mind the fact that the power conferred by Section 237(b) is merely administrative, the allocati<>n of the business of the Board relating to the exercise .of such power must be regarded as a matter of procedure. Strictly sp\"\"- king the Chairman to whom the businass of the Board is allocated does not become a delegate of the Board at all. He acts in the name of the Board and is no more than its agent. But even if he is looked upon as a delei<ate of the Board and, therefore, sub-delegate vis-avis the Central Government, he would be as much subject to the control of the Central Government as the Board itself, for sub-s. (6) of s. lOE orovides that the Board shall, in the exercise of the powers delegated to it, be subject to the control od' the Central Government and the order distributing the business was made with permission of tfie Central Govermnent. Beating in mind that the maxim delegatus non wtest delega.re sets out what is merely a rule of construction, subdelegation can be sustained if permitted by an express provisicm or by necss.ary i_mplication. Where, as here, i.vhat is subdelegated is an adm1n1strat1ve power and control over its exercise is retained by tbe. nominee of Parliament, that is. here tbe Central Government, the power to make a delegatio\" may be inferred. f329 F-H; 330 A-C].\n\n-- -...\n\n316;\n\nSUPREME COURT REPORTS\n\n. [1966) SUPP. S.C.R.\n\n', . (Per Bachwat J.): The function under s. 237(b) irivolves-tle exercise of a discretion. Prima facie all the members of the Board acting together were required to discharge this function and they could not delegate their duty to the Chairman. However,. under ss. 10E(5) and 642(1), the Central Government may frame rules regulating the procedure of the Board and generally to carry out the purpose of the Act. In the context of s. lOE, the rule making power should be construed liberally. The Central Government has power to constitute the Company Law Board, to delegate its function to the Board and to control the Board in the exercise of its delegated functions.\n\nIn this background, by conferring on the Central Government the additlonaJ power of framing rules regulating the procedure of the Board and generally to carry out the purposes of s. lOE, Parliament must have intended that the internal organisation of the Board and the mode and manner of transacting its business should be regulated ent'.rely by rules framed by the Government. The Government had, therefore. power to frame the Company Law Board (Procedure) Rules. 1964 authorising the Chairman to distribute the business of the Board .. In the exercise of the power conferred by this rule, the Chairman assiJ?ned the. business under s. 237 to himself. The Chairman alone could, therefore, pass the impugned order. [341 F-H; 342 .A-Cl-\n\n(Per' Hida'yatullah J.): The new sub-section 4A f Section lOE, which was not there when the impugned order was made. enables the work of the Board to be distributed among members, while sub-s. (5) merely enables the procedure of the Board to be regulated. These are two verv different things. One provides for di<tribution of work in such a wav that each constituent part of the Board. properlv authorised. becomes the Board. The other provides for the procedure of the Board. What is the Board is not a question which admits of solu~ tion bv nrocedural rules but bv the enactment of a substantive provic:; ion ::illowlnr{ for a different ifeli:>i::r::ition. Snrh an enctment has been framed in relation to the Tribunal constituted under s. !OB and has nnw bPen framed under s. lOE ::i lso. ThPnew sub-se-ction involvPS a dPleg::ition of the powers of. the Central Government to a member of the Board which the Act nreviously allowed to be made . to the Board onlv. The statute, as it was formerly, gave no authority to delegat.> if differentlv or. to another nerson or persons. When it spoke of procedure in sub-section (5) it spoke of the procedure of the Board\n\n;:ic:: ronstitnterl. Thi:> lacnn~ in thp Art mut h::ivp h,,.,,...., .f',.., lt; otherwise there was no need to enact sub-section (4A), [334 B-E].\n\n<PeT Shel at .. T.l: Th~ statut,, hairi~.i nermitterl -the rleleitat; on of powers to the Board only as the statutory Authority the powers so\n\ndele<rated have to be exercised by the Board and not bv its comoonents. To authorise . its Chairman to hand over those functions and pow0 rs to the Board onlv as the statutorv Authoritv. tl-e powers so bv the Act. The efl'0 ct of r. 3 and the order of distribution of work made in PUrsuance thereof wac:; not laving dowri a procedure but authotisin~ and making. a sub..aele\"ation in favour of the members.\n\nThe only procedure which the Government could prescribe was the\n\npro<'Pdure in rel:Jtion to Bord. the manner in which it should discharge and exercise the functions and pawers delegated to it, but it canlrl not make_ a nroviinn which under the cloak of procedure authorfred sub-dele1tation. r3R9 F-H; 370 A, Bl.\n\n(5) (By the Court): The provisions of Section 2:J71b) were not ,,;,, JoHve of Articles 14 and 19 of the Constitution. f328 E-G; 342 D-F;\n\n371 H]. . .\n\nSecF'>ns ?\"4. 2~5. 236 onn 2371b) l!av<> nower to different authnrities i.e. the Registrar and the Government, provided powers which\n\nB '\n\nRARIIJ~! CHEMICAL~ v. COMP. I.AW l!D. (Mudholkar, J.) 317\n\nare different in extent and nature, exercisable in sets of circumstances and in a manner different from one an?ther. Therefore, there is no question of discriminatory power having been vested in the Government under these Sections to pick and choose between rone company and the other. [370 G, H].\n\nWhen investigation is ordered, there would be inco11venience in the carrying on of the business of the company. It might also perhaps shake the credit of a dompany. But an investigation directed under section 237(b) is essentially of an exploratory character and it is not as if any restriction is placed on the right of the concerned company to carry on its business and no restrictions are imposed on those who carry on the company's affairs. Even if it is regarded as a restriction, it is not possible to say that it is not protected as a reasonable restriction under Clause 6 of Art. 19(1). r371 B-D].\n\nCase Jaw referred to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 381 of 1966.\n\nAppeal by special leave from the judgment and order dated October 7, 1965 of. the Punjab High Court (Circuit Bench) at Delhi in Civil Writ No. 1626-C of 1965.\n\nD M. C. Setalvad, R. K. Garg and S. C. Agarwala, for the\n\n11'\n\nappellants.\n\nC. K. Daphtary, Attorney-General, B. R. L. Iyengar, R. K. P.\n\nShankardass and R. H. Dhebar, for respondents Nos. 1 and 3 to 7.\n\nS. Mohan Kumaramangalam, C. Ramakrishna and A. V. V.\n\nNair, for respondent No. 2.\n\nThe dissenting Opinion of SARKAR, CJ. and MUDHOLKAR, J. was delivered by MUDHOLKAR, J HIDAYATULLAH, BACHAWAT and SHE LAT JJ. delivered separate judgments allowing the Appeal.\n\nMudholkar, J. On May 19, 1965 Mr. D. S. Dang, Secretary of the Company Law Board issued an order on behalf of the Company Law Board made under s. 237 (b) of the Companies Act, 1956 appointing 4 persons as Inspectors for investigat ing the affairs of the Barium Chemicals Ltd., appellant No. I before us, since its incorporation in the year 1961 and to report to the Company Law Board inter a/ia \"all the irregularities and contravention in respect of the provisions of the Companies Act, 1956 or of any other law for the time being in force and the person or persons responsible for such irregularities and contraventions.\" The order was made by the Chairman of the Board, Mr. R. C. Dutt on behalf of the Board by virtue of the powers conferred on him by certain rules to which we shall refer later. On June 4, 1965 the Company preferred a writ petition under Art. 226 of the Constitution in the Punjab High Omrt for the issue of a writ of mandamus or other appropriate writ, direction or order quashing the order of the Board dated May 19, 1965. The Managing Director, Mr. Balasubramanian joined in the petition as petitioner No. 2. The writ petition is directed against 7 respondents, the first of which is the\n\nSIB RUPRJ!lll: COURT IY'JPORTS ( Hl6CJ SUl'P. B.0.R,\n\nCompany Law Board. 1'he second rospondMt 1s Mr. T\" T.\n\nA Ktishnamac.hari, whc> was at that time Minister for Finance in the Government of India. The Inspectors a.ppointed are respondents 3 to 6 and Mr. Dang 1s the 7th respondent. Apart from the relief of\n\nquashin~ the order of May 19, 1965 the appellants sought the issue of a writ restrammg the Company Law Board and the Jnspei:ton Cr~ giving effect to the order dated May 19, 1%5 and also so14fbt B\n\n~Q81et-Other incideaw.I reliefs: The order of the Board \\V'.tS challe11ged\n\n011 5 grounds which are briefly as follows:\n\nm that the order was made ma/a fide;\n\n(2) tbat in making the ordi:r the Board hd acted on material extraneous to the matters mentioned in s 237(b) of the Companies Act:\n\n(3) that the order having in fact been made at the instance of the shareholders is invalid and on a true construction of s. 2~7 this could not be done;\n\n(4) that the order was invalid because it was made by the Chairman of the Board and not hy the Board; a.nd\n\n(5) that the provisions of s. 237(b) arc void as offending\n\nArts. 14 and 19(1) ~) of the Coastitution.\n\nThe allegations of ma/a (ides were denied on behalf of the\n\nr.cspo.ndn\\S. They dbputeil thl: validity of aU th!: other grounds raised by the petitioners. The High Court rejcded the contentio!l6 urged before it on behalf of the appellants and dismissed the writ ! petitic:m. The appellants thereafter sought to obtain a certificate of fitness for appeal to this Court; but the High Court refused to grant such a certificate. They have now come up to this Court by scial leave.\n\nIn order to apprcci:ue tbe argument' ao..lressed OOfore us. a hr.iel statement of the rnlevant facts would be necury. The Comf pany was registered in the ye111 1%1 and md an <Wtborised capital of Rs, 1 crQCe divided into 100.000 shares of Rs. 100 ea1::h.\n\nJu pJimary object wa.s to carry 011 business of 1uamuactwing all type~ of. bariu111 c_ornp.olUl<ls. Appc.lla.nt No. 2 wa~ appointed M~\n\nOir~tor of the Company from December 5, 196) <U1d his appointment ao.d remuneration were. approved by the Central G1ive<nruent on July 30, 1962. The erection of the plant was unde!'taken Q by M/s. L. A. Mitchell Ltd., of Manchcler in pursuance of a C9lla.bQiatioo agre.ement be.tween it and the cnlllµoi.ny eiitercd ~\n\nOctobr. 1961 and approved by the Cc.ntral Government in NovOlllbi:r of that year. Thereafter a permit for importing the requisi.te machinery was granted to the CO,!Dpany. The issued capitaJ of the O>mpa.oy was Rs. 5.0.00.000 aw the public was invited lo s~ ¥ scribe for shares in the Company. It is sakl that the issue w.a6 .O\"fi s11bscribe4 by MarC'Jl li. 1962,.\n\n'! .. \"\n\nA •\n\nF •\n\nHARLUM CHEMIOALS v. COMP. LAW BD. (Mudholkar, J.) 319\n\nIt would seem that soon after the collaboration agreement was cntere.cl into MI s. L. A. Mitchell Ltd., was taken over by a financial group (MI s. Pearson & Co. Ltd.), to which a pers.011 nam.ed Lvrd. Poole belonged. It would appear that as the work of setting\n\nup of the plant was being delayed the Company sent a notice to M/s. Mitohell Ltd., on April 2, 1965 in which the Company sta.ted that if the plant was not completely installed and got into mnuing ord.er by June I, 1965 the Company will have to make aJternatiye arrangements and that it would hold MI s. L. A. Mitchell Ltd., liable to pay damages to the Company for the loss suffered by it.\n\nAs a result of the notice Lord Poole visited India in April/May,\n\n1965. In his opinion the design of the plant was defective. Certain negotiations took place between the Company and Lord Poole in the co.ursc of which an undertaking was given by Lord Poole on be.half of the collaborators that the work would be completed with necessary alterations and modifications in accordance with the report of M/s. Humphrey & Co., and that the collaborators wouJd spend an additional amount upto £250,000 as may be required for the purpose. It is said that the p'ant was producing at that time only 25 per cent of its installed capacity but that according to the\n\nassurance given by Lord Poole it would yield full production by April, 1966.\n\nAccording to the appellants, before entering into a collaboration agreement with MI s. L. A. Mitchell Ltd., the appellant No .. 2 Balasubramanian was negotiating with a German firm named.Kali Chemie A. G. of Hanover for obtaining their collaborat\\on. It is said that the firm of MI s. T. T. Krishnamachari & Sons were and still are the sole agents in India for some of the products of Kali Chemie. The firm of T. T. Krishnamachari & Sons appro.ached appellant No. 2 for the grant of sole selling agency of the products of the plant to be established in collaboration with Kali Chemie.\n\nAppellant No. 2 did not agree to this with the result that the c.oinpany's negotiations with Kali Chemie broke down. The appellants also say that T. T. Krishnamachari & Sons were later also granted a licence to set up a plant for manufacturing barium chemicals but that on appellant No. 2 bringing certain facts to th.e notice of Mr. Nehru the licence in favour of T. T. Krishnamachari & Sons was revoked.\n\nThe relevance of these facts is in connection with the plea of ma/a {ides.\n\nOn this part of the case the appellant's contention is that the Chairman of the Company Law Board Mr. R. C. Dutt made the order for investigation into the affairs of a.ppellant No. I at the instance of Mr. T. T. Krishll;!machari, the then Finance Minister and also because of his bias against appellant No. 2.\n\nThe suggestion is that as the licence of M/s. T. T. Krishnamachari & Sons was revoked and as they were not even given sole selling agency for the sale of the products of barium chemicals Mr. T. T. Krishnamachari wanted action to be taken under this nrovision either for penalising appellant No. 1 or putting pressure on it.\n\n~20 SUPRnllo: COURT REPORTS\n\n[1960) WPP. S.C.R.\n\nA lengthy argument was addressed belore us by Mr. Setalvad A bearing on the question of ma/a fides in tbe course of which he • referred us to certain documents.\n\nHe also wanted us to bear in mind the sequence in which certain events occurred and said that these would indicate that the former Finance Minister must have been instrumental in having an order under s. 237(b) made by the B Chairman of the Board. We were, however, not impressed by this argument.\n\nOur learned brother Shelat has dealt with this aspect of the matter fully in his judgment and as we agree with him it is not necessary to say much on the point. We would, however, like to refer to and deal with one aspect of the argument bearing on the question of ma/a fides.\n\nMr. Setalvad points out that the Company Law Board had decided in December 1964 to take action c against appellant No. 1 under s. 237(b) and had actually obtained approval of Mr. T. T. Krishnamachari to the proposed action.\n\nTherefore, according to him tbe real order is of Mr. Krishnamachari even though the order is expressed in the name of the Board.\n\nWe find no substance in the argument. The decision to take action was already taken by the Chairman and there is nothing to .,;. indicate that in arriving at that decision he was influenced by the D Finance Minister.\n\nIf the decision arrived at by the Chairman was an independent one it cannot be said to have been rendered ma/a fide because it was later approved by Mr. Krishnamachari whose sons undoubtedly constitute the partnership firm of M/s.\n\nT. T. Krishnamachari & Sons.\n\nIt is also suggested by Mr.\n\nSetalvad that the action approved of in December, 1964 was delayed till May, 1965 because in the interval some negotiations with E Kali Chemie had been started and had they ended fruitfully M /s.\n\nT.T. Krishnamachari & Sons would have got the sole selling agency of the products of barium chemicals.\n\nNow it docs seem from certain material brought to our notice that negotiations with Kali Chemic were revived by appellant No. 2 because of the difficulties which were being experienced in the working of the collaboration F agreement with M/s. L. A. Mitchell Ltd. No material. however, is placed before us from which it could be reasonably inferred that had the negotiations with Kali Chemie fructified M / s. T. T.\n\nKrishnamachari & Sons would have secured the sole monopoly for sale of the products of barium chemicals. One more point was urged in connection with this aspect of the argument and it is that the appellants were not given an opportunity to cross-examine G Mr. T. T. Krishnamachari and Mr. Dutt. In our opinion, in a proceeding under Art. 226 of the Constitution the normal rule is, as pointed out by this Court in The State of Bombay v. Purshottam Jog Naik to decide disputed questions on the basis of affidavits and that it is within the discretion of the High Court whether to allow a person who has sworn an affidavit before it-as indeed Mr.\n\nH Krishnamachari and Mr. Dutt have-to be cross-examined or not to permit it.\n\nIn exercise of its discretion the High Court has re-\n\nBARIUM CHEMIOALR v. COMP. LAW HD. (Mudholkar, J.) 321\n\nfused permission to cross-examine them.\n\nIn such a case it would not be appropriate for this Court while hearing an appeal by special leave to interfere lightly with the exercise of that discretion.\n\nMr.\n\nSetalvad said that as the appellants had made out a prima facie case of ma/a fides in their affidavits, and as these allegations had been denied by the respondents, the High Court was in error in refusing permission to the appellants to cross-examine the persons who swore the affidavits on the side of the respondents.\n\nWe are not aware of the rule on which Mr. Setalvad bases himself. There is nothing to show that the High Court thought that a prima facie case of ma/a fides had been made out. Even in such a case a court might well hold that it has been demolished by the affidavits in answer. The court has to find the facts and if it finds that it can do so without cross-examination it is not compelled to permit cross-examination.\n\nWe have no reason to think that the High Court could not have ascertained the facts on the affidavits themselves.\n\nComing to the second point, it would be desirable to repro- D duce s. 237 which reads thus:\n\n\"Without prejudice to its powers under section 235 the Central Government-\n\n(a) shall appoint one or more competent persons as inspectors to investigate the affairs of a company and to report thereon in such manner as the Central Government E may direct, if-\n\n(i) the company, by special resolution, or\n\n(ii) the Court, by order, declares that the affairs of the company ought to be investigated by an inspector appointed by the Central Government; and\n\n(b) may do so if, in the opinion of the Central Government, there are circumstances suggesting-\n\n(i) that the business of the company is being conducted with intent to defraud its creditors, members or any other persons, or otherwise for a fraudulent or unlawful purpose, or in a manner oppressive of any of its members, or that the company was formed for any fraudulent or unlawful purpose; or\n\n(ii) that persons concerned in the formation of the company or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards the company or towards any of its members; or\n\n(iii) that the members of the company have not been given all the information with respect to its\n\nli966) SUPP. R.r.R.\n\natfairs which they might reai; onably expect, including information relating to the calculation of the commission payable to a managing or other director, the managing agent. the secretaries and treasurers, or the manager of the company.\"\n\nIn view of the fact that the Central Government, by virtue of the (l<Dwers conferred by ss. 10-E and 637 delegated its powers llll<ller s. 237 to the Company Law Board we shall read s. 237 as\n\nii. in place of the WPrds \"Central Government\"' there arc the words \"Company Law Board\" Of for brt!vity 'Board'. According to Mr.\n\nSetalvad. cl. (b) of s. 237 requires two things: (I) the opinion of the Board and (2) the existence of circumstances suggesting one more of the matters specified in sub-els. (i) to (iiil. He oontends tllllt th1>ugh the opinion of the Board is subjective the existence of. circumstances set out in the sub-els. (i) to (iii) is a conditio11 precedent to the formation of the opinion. Therefore, according to him. the Court ;, entitled to a.<ccrt;, in whether in f:tct any of those circumstances exists.\n\nThe Attorney-General disputes this construction and contends that the clause is incapable of a dichotomy and that the subjective process embraces the formation of an opinion that circumstances suggestive of any of the matters comprised in sub-els. (i) to <iii! exist.\n\nOnce it is conceded that the formation of an opinion by the Board is intended to be subjective-and if the provision is constitutional which in our view it is -the question would arise: what is that about which the Board is entitled to form an opinion? The opinion must necessarily concern the existence or non-existence of' facts suggesting the things ment 'oncd in the several sub-clauses of cl. (b). An examination of the section would show that ol. <b) theroof confers a discretion upon the Board to appoint an Inspcc tor to investigate the affairs of a company.\n\nThe words \"in the opinion of\" govern the words \"there arc circumstances suggesting\" and oot the words \"may do so\".\n\nThe words 'circumstances' and 'suggesting' cannot he dissociated without making it impossible for the Board to form an 'opinion' at all.\n\nThe formation of an opinion must. therefore. be as to whether there are circumstances suggesting the existence of one or more of the matters in sub-els.\n\n(j) to (iii) and not about anything else.\n\nThe opinion must of a, course not have been axrivcd at mala fide.\n\nTu say that the opinion to be forme<I must be as to the necessity of making an investigation would be makinµ a clear departure from the language in which s. 237<bl is couched.\n\nIt is only after the formation of certain opinion by the Board that the stage for exercising the discretion H conferred by the provision. is reached.\n\nThe discretion conferred to order an investig.tion is administrative and not judicial since\n\n• I\n\n~ .. ! .\n\n1~ II\n\ni' i ..... .,\n\nj i • t\n\n~! .:\n\n' •\n\n• A\n\nBARIUM C'HEMl('Jd.~. I'. COl\\1P. I.AV{ J:\\,), (illur///lllkar, J.) 323\n\nits exercise one way or the other does not alfect the rights of a company nor does it lead to any serious consequences as, for .instance, hampering the business of the company.\n\nAs has been pomted out by this Court in Raja Narayanalal Bansilal v. Maneck Phiroz Mistry & Anr.(') the investigc.tion undertaken under this provision is for ascertaining facts and is thus merely exploratory. The scope for judicial review of the action of the Board must, therefore, be strictly limited.\n\nNow, if it can be shown that the Board had in fact not formed an opinion its order could be successfully challenged. This is what was sa'd by the Federal Court in Emperor\n\nv. Sliibnath Banerjee(') and approved later by the Privy Council.\n\nQuite obviously there is a difference between not forming an opinion at all and forming an opinion upon grounds, which, if a court could go into that question at all, could be regarded as inapt or insufficient or irrelevant. It is nol disputed that a court cannot go into the question of the aptness or sufficiency of the grounds 4pon which the subjective satisfaction of an authority is based.\n\nBut, Mr. Setalvad says, since the grounds have in fact been disclosed in the affidavit of Mr. Dutt upon which his subjective satisfaction was based it is open to the court to consider whether those grounds are relevant or are irrelevant because they are extraneous to the question as to the existence or otherwbe of any of the matters referred to in sub-els. (i) to (iii).\n\nLet us now examine the affidavit of Mr. Dutt. Since this affidavit is in answer to the allegations made in the writ petition the two should be considered together. In paragraphs 1 to 19 of the writ petition certain facts and figures concerning the formation, registration etc. of the company, the activities of the company and other related matters have been set out.\n\nThese wern admitted by Mr. Dutt in paragraph 14 of the counter'affidavit. Paragraph 20 onwards of the writ petition deals with the action taken by the Board and the varimrn grou!'lds on which according to the appellants the action of the Board is open to challenge. The first 4 paragraphs of the counter-affidavit deal with certain formal matters.\n\nIn paragraph 5 Mr. Dutt has set out that the petition is liable to be dismissed summarily being grounded on facts which are false, speculative and lacking in material particulars. Thereafter he has set out what, according to him, are the true facts. In paragraphs 6 to 8 he has dealt with the legal aspects of the case.\n\nThe 8th paragraph is the most important amongst them. Here Mr.\n\nDutt has stated that it was not competent to the Court to go into the question of adequacy or otherwise of the material on the basis of which orders uunder s. 2J7lb) are passed by the Board. Then he stated: 'However, if in spite of what has been stated and contrary to the submissions above, this Hon'ble Court still holds that it is necessary for the Court to examine the relevant material in\n\n(') [rn61J 1 s.c.R. 417.\n\n(') [1944] F.C.R. I.\n\nSUl'REllE OOURT REPORTS [1960] BUPP. l.C, R.\n\norder to do justice, then the Board would have no objection to A producing the same for the Court's perusal provided it is not shown to the petitil)ners.\" It may be mentioned that the Court did not call for this material at all nor did the appellants seek its production.\n\nIn paragraph 9 Mr. Dutt has categorically stated that the order of May 19, 1965 was passed after careful and independent examination of the material by the Chairman and that it was issued B in proper exercise of the powers conferred upon it. He has specifically denied that it was issued at the instance of the second respondent.\n\nIn paragraph 10 Mr. Dutt has taken the plea that the petition was liable to be dismissed as it had not been made bona fide but for extraneous reasons and to create prejudice with a view to thwart statutory investigation. Then he has set out the circumstances upon c which his contention is based.\n\nIn paragraph 13 he has stated that without prejudice to his submissions in the earlier paragraphs he would reply to allegations contained in the various paragraphs of the writ petition. Then follows paragraph 14 upon which Mr. Setalvad has founded an argument that the grounds disclosed therein being extraneous the order is invalid. In this paragraph Mr. Dutt has admitted some of the facts stated in paragraphs I to D 19.\n\nHe has also said that the Board was aware of the fact that the company had entered into collaboration with M/s. L. A.\n\nMitchell Ltd. He has then added: \" ...... but it has no information of any of the other matters and/or negotiations with M/s. L. A.\n\nMitchell Ltd., Manchester.\n\nHowever, from the Memoranda received by the Board referred to in paragraph 5 and other exami nation it appeared inter alia that: •\n\n(i) that there had been delay, bungling and faulty plan\n\nning of this project, resulting in double expenditure, for which the collaborators had put the responsi bility upon the Managing Director, Petitioner No. 2:\n\n(ii) Since its floatation the company has been continuously showing losses and nearly I/ 3rd of its share capital has been wiped off;\n\n(iii) that the shares of the company which to start with were at a premium were being quoted on the Stock Exchange at half their face value; and\n\n(iv) some eminent persons who had initially accepted seats on the Board of Directors of the company had subsequently severed their connections with it due to differences with Petitioner No. 2 on account of the manner in which the affairs of the company were being conducted.\"\n\nIn paragraph 5 it may be recalled Mr. Dutt has set out the grounds on which the writ petition deserved to be summarily\n\n• A\n\nBARIUM CHRMICM, S v. COidP. LAW BD. (lYiudholkar, J.) 325\n\nrejected. It will thus be clear that what are characterised by Mr. Setalvad as the grounds upon which the order of the Board is based are nothing more than certain conclusions drawn by the Board from some of the material which it had before it. Moreover the expression \"inter alia\" used by Mr. Dutt would show that the conclusions set out by him specifically are not the only ones which could be drawn from the material referred to by him in paragraph 5 of his affidavit.\n\nTurning to paragraph 16 of the affidavit we find that Mr. Dutt has clearly reiterated that there was ample material before the Board on which it could and did form the opinion that there were circumstances suggesting that as stated in the order of May, 19, 1965, the business of the company was being conducted with intent to defraud creditors, members and other persons and further that the persons concerned in the management of the affaqs of the company had in connection therewith been guilty of fraud, misfeasance and other misconduct towards the company and its members.\n\nThis paragraph is in answer to paragraph 21 of the writ petition. It is in that paragraph alone that the appellants had specifically raised the contention that the recital in the order as to the existence of material is not correct and that in point of fact there was no material before the Board to form the said opinion.\n\nIn this state of pleadings it would not be right to construe the affidavit of Mr. Dutt to mean that the only conclusions emerging from the material before the Board are those that are set out in paragraph 14 of his affidavit.\n\nApart from this we do not think that the conclusions set out in paragraph 14 are extraneous to the matters indicated in the order of May 19, 1965. What is said therein is that there are circumstances suggesting that the business of the appellants is being conducted with intent to defraud its creditors, members and others, and that the persons concerned with the management of the affairs of the company have been guilty of fraud, misfeasance and other misconduct towards the company and its members. It has to be borne in mind that what the Board is to be satisfied about is whether the circumstances suggest any of these things and not whether they establish any of these things. Now, the first of its conclusion is to the effect that the materials show that there was delay, bungling, faulty planning of the project and that this resulted in double expenditure for which the collaborators had put the responsibility upon the Managing Director, that is, appellant No. 2.\n\nWould it be farfetched to say that these circumstances could reasonably suggest to the Board that these happenings were not just pieces of careless conduct but were deliberate acts or omissions of appellant No. 2 done with the ulterior motive of earning profit for himself? Similarly could not the fact that the company was continuously showing losses since its floatation and that 1I3rd of its\n\n3'!6 :0-:l' l'RE)lt: {:l)l'lff IU:f'oHT; o; [1966] >t:1r. s.c.n.\n\nmare eapital had been wiped out could have biien suggestive of .a fnll!tl to the Board?\n\ntn this connection. we think it right to point out that the spirit of the section must be kept in mind in determining its interpretation. The section was enacted to prevent the Management Gf a company from acting in a manner prejudicial to the interesls B elf the shareholdi:rs for whom it was difficult to get together anti take steps for the protection of their interests jointly.\n\nIt was this ditlkully of the shareholders-which is a reality-which had led le the enactment of the =tion. There is no doubt that few sharellelders have the means or ability to act against the Management.\n\nit would furthermore be difficult for the shareholders to find out !lie fac1s leading to the poor financial condition of a company. c Tiie G:Jovernment thought it right to take power to step in where there.was reason to suspect that the anagement may not have been aioting in the interests of the shareholders-who would not be able 1\" take the steps against a powerful body like the Managementalld to take steps for protection of such interests.\n\nAs we have said, the section gves the exploratory power only.\n\nIts object is to find out the facts, a suspicion having been entertained that all D weo; not well with the company.\n\nThe powers are exercised for as-taining facts and, therefore. before they are finally known, ail that is necessary for the exercise of the powers is the opinion of the lloard that there re circumstances which suggest to it that fr.aud and other kinds of mismanagement mentioned in sub-els.\n\n(i) to (iii) of cl. (b) of the section may have been committed. ff the facts do reasonably suggest any of these things to the Board, E the power can be exer4ised, though another individual might think that the facts suggest otherwise.\n\nIt cannot be said that from a huge 1085 ineun:ed by a C<>mpany and the working of the company in a digorganised and un•businesslike way, the only conclusion pet1Sible is that it was due to lat?k of capability.\n\nIt is reasonably (f.Onceivable that the result had been produced by fraud and other F \"8rieties of dishonesty or miQcasance.\n\nThe order does not amount to a finding of fraud. It is to find out what kind of wrong aatien has led to the company's ill-fate that the powers under the !lseiion.are gwen.\n\nThe anquiry may reveal that there was no fraud l)f other similar kind of malfeasance. It would be destroying the\n\nbolleficial and effective u'e of the powers given by the section to say that lite Board mui; t first show that a fraud can clearly be said 0 to ha¥e been committed. It is enough that the facts show that it can' oo reasonably thought that the company's unfortunate positfon mislJt have been caused by fraud and other species of dislwliest action.\n\nIn our opinion, therefore, the argument of Mr.\n\nSatawad about the circumstances being extraneous cannot be aooepted.\n\nH Coming to the third point of Mr. Setalvad pointed out that four ~.Dir.eetos of the Company who had resignel:I submitted n\n\ni 'I\n\nBARIUM CiiEMICALS v. COMP. LAW BD. (MuJhulkar, J.) 327\n\nmemorandum to Mr. T. T. Krishnamachari while he was holding the office of Finance Minister in which grave allegations were made concerning the affairs of the Company and the management of the Company by the second appellant. The investigation, according to Mr. Setalvad, was the outcome of this memorandum and that by ordering it the Board has in effect enabled the ex- Directors who continue to be shareholders to circumvent the provisions of ss. 235 and 236 of the Companies Act. Section 235 deals with \"Investigation of affairs of company on application by members or report by Registrar\". Clause (a) of this section provides that in the case of a company having a share capital the investigation can be ordered either on the application of not less than 200\n\nmembers or of members holding not less than one-tenth of the total voting power therein. We are not concerned with els. (b) and (c).\n\nApparently the four ex-Directors were not holding 10% of the voting power of the Company. At any rate the case was argued on this footing. Section 236 provides that such application has to be supported by such evidence as the Board (reading 'Board' for 'Central Government') may require. It also empowers the Board to require the applicants to furnish security for such amount, not exceeding one thousand rupees as it may think fit, for the payment of the costs of the investigation. The contention is that though the Board acted upon the memorandum submitted by four ex-Directors it did not even require them to comply with the provisions of s. 236. The contention is that the order of the Board appointing Inspectors is invalid. In other words the argument amounts to this that the provisions of s. 237(b) have been utilised by the Board as a cloak for taking action under the provisions of s. 235.\n\nIn other words this is an argument that the order was made ma/a fide.\n\nIt is true that a memorandum was presented to Mr. Krishnamachari by four ex-Directors containing grave allegations against the two appellants. But it was not solely on the basis of this memorandum that action was taken by the Board. It is clear from the counter-affidavit of Mr. Dutt and particularly from paragraph 5 thereof that the Board had before it not only two sets of memoranda dated May 30, 1964 and July 9, 1964 respectively from four ex-Directors of the Company alleging serious irregularities and illegalities in the conduct of the affairs of the Company but also other materials. The Board points out that over a long period beginning from September 1961 the Department had been receiving various complaints in regard to the conduct of the affairs of the Company. One complaint had also been received by the Special Police Establishment and forwarded by it to the Department in November, 1963. The matter was enquired into by the Regional Director of the Board at Madras and he, in his report, sent to the Board in September 1964 suggested an urgent and comprehensive investigation into the affairs of the Company. In his l/SPS0!-23\n\n328 8UPREMB COt:RT REPORTS\n\n(1966) BUPP. S.C.R.\n\naffidavit the Chairman of the Board Mr. Dutt has stated further A in paragraph 5(b) as follows:\n\n\"The material on the file was further examined in the light of the Regional Director's recommendation by the two Under Secretaries of the Board (Sarvashri M. K.\n\nBanerjee C. S. S. and K. C. Chand, I. R. S. at the headquarters of the Board in New Delhi and both of them endorsed the recommendation of the Regional Directer to order an investigation. The matter was then considered by the Secretary of the Company Law Board in charge of investigation (Shri D. S. Dang, I.A.SJ and he also expressed his agreement that there was need for a deeper probe into the affairs of the company.\" Then again in paragraph 5(c) he has stated as follows: \"Accordingly, the matter was put up to me at the end of November 1964 and after consideration of all the material on record, I formed the opinion that there were circumstances suggesting the need for action under section 237(b) of the Companies Act, 1956\".\n\nD ll is abundantly clear from all this that the investigation cannot be said to have been ordered either at the instance of the four ex-Directors or on the sole basis of the memoranda submitted by them.\n\nThere is, therefore, no contravention of the provisions of ss. 235 and 236 of the Act.\n\nAs a corollary to this it would follow that the order was not made ma/a fide or is otherwise invalid.\n\nAs already stated the appellant had challenged the provisions E of s. 237(b) on the ground that they are violative of the fundamental rights under Arts. 14 and 19(l)(g) of the Constitution. Our brother Shch1t has dealt with this attack on the provisions fully and we agree generally with what he has said while dealing with the contentions. We would, however, like to add that the company being an artificial legal person cannot, as held by this Court in 1'he State Trading Corporation of India Ltd .. v. Commercial Tax l Officer Visakhapatnam & Ors.('), claim the benefit of the provisions of Art. 19(1)(g\\ though appellant No. 2 Balasubramanian can do so. We agree with our learned brother that the action proposed under s. 237(b\\ being merely exploratory in character the fundamental right of Balasubramanian to carry on business is not affected thereby.\n\nSince that is so, the question whether the provisions of the aforesaid section arc a reasonable restriction on the Cl exercise of the right under Art. 19(1)(g) does not arise for consideration.\n\nIn the circumstances, therefore, we do not think that there is anything more that we need say.\n\nThe last question is whether it was not competent to Mr. Dutt alone to take the decision that an investigation be ordered against B the company.\n\nIn taking the decision Mr. Dutt acted under a rule\n\n(') [ lllMJ < 8.C.R. 911.\n\ni l\n\n'~ i ! !\n\nBAJ<!~M CHEMICALS '. COMP. !.AW RD. (.Murfholkar, J.) 329\n\nof procedure prescribed in the order dated February 6, 1964. The validity of this rule is challenged by Mr. Setalvad on the ground that this amounts to sub-delegation of a delegated power and 1s ultra vires the Act. Clause (a) of sub-s. (!) of s. 637 read with s. 1 O(E)(!) empower the Central Government to delegate its powers under s. 237 to the Company Law Board. By notification dated February I, 1964 the Central Government has delegated, amongst other powers and functions, those conferred upon it by s. 237 upon the Company Law Board. By another notification of the same date the Central Government has made and published rules made by it in exercise of its powers under s. 642(1) read with s. IOE(5) rule 3 of which reads thus :\n\n\"Distribution of business;-The Chairman may, with the previous approval of the Central Government, by order in writing, distribute the business of the Board, among himself and the other member or members, and specify the cases or classes of cases which shall be considered jointly by the Board.\"\n\nBy order dated February 6, 1964 the Chairman of the Company Law Board specified the cases and classes of cases to be considered jointly by the Board and distributed the remaining business between himself and other members of the Board. Amongst the matters allocated to the Chairman is the appointment of an Inspector under s. 237 to investigate the affairs of a company. This, Mr. Setalvad says, could not be done in the absence of an express provision in the Act.\n\nIn this connection he has referred us to sub-s. 4A of s. JOE which was subsequently added-but not made retrospective-by an amendment of the Act which confers an ex press power on the Central Government to enable the Chairman to distribute the powers and functions of the Board. According to the learned Attorney-General this provision was enacted only to make what was implicit in s. JOE(5) read with s. 642(1) clear and that the distribution of the work of the Board being merely a matter of procedure the order of the Chairman allocating the power under s. 237(b) to himself did not amount to sub-delegation of the power of the Board.\n\nBearing in mind the fact that the power conferred by s. 237(b) is merely administrative it is difficult to appreciate how the allocation of business of the Board relating to the exercis.e of such power can be anything other than a matter of procedure. Strictly speaking the Chairman to whom the business of the Board is allocated does not become a delegate of the Board at all.\n\nHe acts in the name of the Board and is no more than its agent. But even if he is looked upon as a delegate of the Board and, therefore, a subdelegate vis-a-vis the Central Government he would be as much subject to the control of the Central Government as the Board itself. For sub-s. (6) of s.\n\nJOE provides that the Board shall, in\n\nL/83SOI-23(•)\n\nSUPREME COURT REPORTS [1966] SUPP. a.c.r..\n\nthe exercise of the powers delegated to it, be subject to the control of the Central Government and the order distributing the business was made with the permission of the Central Government. Bearing in mind that the maxim delegatus 11011 po/est de/egare sets out what is merely a rule of construction, sub-delegation can be sustained if permitted by an express provision or by necessary implication. Where, as here, what is sub-delegated is an administrative power and control over its exercise is retained by the nominee of Parliament, that is, here the Central Government, the power to make a delegation may be inferred.\n\nWe are, therefore, of the view that the order made by the Chairman on behalf of the Board is not in val id.\n\nTo sum up, then, our conclusions may be stated thus: The 0 discretion conferred on the Central Government by s. 237(b) to order an investigation and delegated by it to the Company Law Board is administrative, that it could be validly exercised by the Chairman of the Board by an order made in pursuance of a rule enacted by the Central Government under s. 642(!) read with s. 10E(5J, that the exercise of the power does not violate any fundamental right of the company, that the opinion to be formed under ]) s. 237(b) is subjective and that if the grounds are disclosed by the Board the Court can examine them for considering whether they are relevant.\n\nIn the case before us they appear to be relevant in the context of the matter mentioned in sub-ds. (i) to (iii) of s. 237(b).\n\nThough the order could successfully be challenged if it were made ma/a fide, it has not been shown to have been so made. The attack on the order thus fails and the appeal is dismissed with costs. •\n\nHidayatullah, J. We are concerned in this appeal with the legality of an order of the Chairman, Company Law Board, May 19, 1965, (purporting to be under s. 237(b) of the Companies Act.\n\n1956) declaring that the affairs of the Barium Chemicals Ltd. be investigated.\n\nAs a consequence Inspectors have been appointed and searches have been made. The Company and its Managing J Director ftled a petition under Art. 226 of the Constitution in the High Court of Punjab seeking to quash the order and on failure there, have filed this appeal by special leave of this Court.\n\nThe action of the Chairman was and is challenged on diverse grounds but those which were presented before us were few and clear cut.\n\nThe action is challenged as without jurisdiction because not the G Board but the Chairman alone acted, as ma/a fide because no honest opinion was formed on the matters which under the section give rise to the power but on irrelevant and extraneous material, and further because the order was passed under the influence and malice of a Minister of Cabinet who was interested in another Company belonging to his sons and sought this means to oust a rival.\n\nB The facts have been stated already in some detail by my brother Shelat and I need not take time in restating them.\n\nI!'\n\nBAR!Ulll CHEM!C., LS V. COMP. LAW Bn. (Hidayatullah, 1.) 331\n\nbrother Shelat has quashed the order and I agree with him i.n the order proposed by him but as I view the matter a little differently on some of the aspects of the case, I wish to record my reasons briefly.\n\nUnder the Companies Act 1956, a power of superintendence over the affairs of Companies is retained by the Central Government in much the same way as the Board of Trade in England exercise over Companies in that country. This power is of two kinds (a) calling for information or explanation from the Company and (b) ordering an investigation into the affairs of the Company by appointment of Inspectors for inspection, investigation and report.\n\nThe power is not only varied but is capable of being exercised variously. The power to c<1ll for information is conferred on the Regisrar in two different ways. Firstly, jurisdiction is conferred on the Registrar by s. 234 to call for information or explanation in relation to any document submitted to him, which information or explanation must be furnished on pain of penalties.\n\nIf the information or explanation is not furnished or is unsatisfactory the Registrar can report to the Central Government for action. Secondly, if a contr; butory, creditor br other person interested places materials before the Registrar (a) that the business of the Company is being carried on in fraud of its creditors or of persons dealing with the Company or (b) otherwise for a fraudulent or unlawful purpose, the Registrar can, after hearing the Company, call upon it to furnish any information or explanation. A further power is conferred after December 28, 1960, on the Registrar, who may, after being authorised by a Presidency Magistrate or a Magistrate First Class, enter any place, search and seize any document relating to the Company, its managing agents, or Secretaries and treasurers or managing director or manager, if he has reason to believe that it may be destroyed or tampered with.\n\nSections 235-251 provide for investigation of the affairs of a company and for sundry matters related to such investigations.\n\nThey follow the scheme of ss. 164-175 of the English Act of 1948.\n\nSection 235 enables the Central Government to appoint inspectors for investigation and report generally if the Registrar reports under s. 234 and also if a stated number of shareholders or shareholders possessing a stated voting power apply. When members apply they must support their application by evidence and give security for costs of investigation.\n\nJn the present case no action under any of the sections noted so far was taken but it was taken under s. 237.\n\nThis section is in two parts.\n\nThe first part which is (a) compels the Central Government to appoint inspectors to investigate and report if the company by a special resolution or the court by order declares that the affairs be investigated. The second part which is (b) gives a discretionary power. As this dis-\n\n~UPREVE 00UR1' REPORT!! [1966] Bt'PP. 8.0, B.\n\ncretionary power was in fact exercised this is a convenient place to A read part (b) of s. 237.\n\nIt reads:\n\n\"237. Without prejudice to its powers under section 235, the Central Government- - (a) I\n\n(b) may do so <i.e. appoint one or more competent persons as inspectors to investigate etc.) if, in the opinion of the Central Government, there are circumstances suggesting-\n\n(i) that the business of the company is being conducted with intent to defraud its creditors, members or any other persons. or otherwise for a fraudulent or unlawful purpose, or in a manner bppressive of any of its members, or that the company was formed for any fraudulent or unlawful purpose;\n\n(ii) that persons concerned in the formation of the company or the management of its affairs have in connection therewith been guilty of fraud. misfeasance or other misconduct towards the company or towards any of its members; or\n\n(iii) that the members of the company have not been given all the information with respect to its affairs which they might reasonably expect. including information relating to the calculation of the commission payable to a managing or other director. the managing agent, the secretaries and treasurers, or the manager, of the company.\"\n\nBy s. 237(b) the power is conferred on the Central Government but under the Companies (Amendment) Act, 1963 a Board of Company Law Administration consisting of a Chairman and a member has been set up.\n\nThis Board is constituted under s. 1 OE which has been introduced in the parent Act.\n\nThe section may be read here:\n\n\"!OE. Constitution of Board of Company Law Administration.\n\n(I) As soon as may be after the commencement of the Companies (Amendment\\ Act.\n\n1963. the Central Government shall. by notification in the Official Gazette, constitute a Board to be called the Board of Company Law Administration to exercise and discharge such powers and functions conferred on the Central Government by or under this Act or any other law as may be delegated to it by that Government.\n\nJI' '\n\nllAlllUM CHEMICALS t'. COMP. LJ.\\V l\\D. (llidayatullah, J.) 333\n\n(2) The Company Law Board shall consist of such number of members, not exceeding five, as the Central Government deems fit, to be appointed by that Government by notification in the Official Gazette .\n\n(3) One of he members shall be appointed by the Central Government to be the chairman of the Company Law Board.\n\n(4) No act done by the Company Law Board shall be called in question on the ground only of any defect in the constitution of, or the existence of any vacancy in, the Company Law Board.\n\n(5) The procedure of the Company Law Board shall be such as may be prescribed.\n\n(6) In the exercise of its powers and discharge of its functions, the Company Law Board shall be subject to the control of the Central Government.\n\nThe Board was constituted on February l, 1964 by a notification and by a notification of even date in exercise of the powers conferred by cl. (a) of sub-s. (1) of s. 637 read with sub-s. (1) of s. !OE of the Companies Act, the Central Government delegated its powers and functions to the Board under s. 237(b) among others.\n\nSimultaneously acting in exercise of the powers conferred by sub-s. (I) of s. 642 read with sub-s. (5) of s. !OE the Central Government made the Company Law Board (Procedure) Rules, 1964 and one such rule dealt with distribution of business to the following effect:\n\n\"3. Distribution of business-The Chairman may, with the previous approval of the Central Government. by order in writing, distribute the business of the Board among himself and the other member or members, and specify the cases or classes of cases which shall be considered jointly by the Board.\" The Chairman by an order dated February 6, 1964 specified the cases or classes of cases which are to be considered jointly by the Board and distributed the remaining business of the Board between the Chairman and the member each acting individually. The power under s. 237 was placed among the powers exercisable by the Chairman singly. That is how action was taken in the name of the Board but by the Chairman and is the subject of challenge for the reason that a power delegated to the Board as a whole cannot be delegated to an individual member in the absence of a\n\nprovision such as sub-s. (4A) added recently to s. lOE enabling the solidarity of the Board to be broken.\n\nSub-section (4A) of s. !OE, which has been added by an amending Act of 1965, after the events in this case, reads :\n\n\"!OE. (4A). The Board with the previous approval of the Central Government, may, by order in writing,\n\n334 RUl'RFMll COURT RF.PORT!! [ Hl6t) SlTPP. s.o.a.\n\nauthorise the chairman or any of its other members or its principal officer (whether known as secretary or by any other name) to exercise and discharge, subject to such conditions and limitations, if any, as may be specified in the order, such of its powers and functions as it may think fit; and every order made or act done in the exercise of such powers or discharge of such functions shall be deemed to be the order or act. as the case may be. of the Board.\"\n\nThis sub-section enables the work of the Board to be distributed among members while sub-s. (5) merely enables the procedure of the Board to be regulated. These arc two very different things .\n\nOne provides for distribution of work in such a way that each constituent part of the Board properly authorised, becomes the Board. The other provides for the procedure of the Board. What is the Board, is not a question which admits of solution by procedural rules but by the enactment of a substantive provision allowing for a different delegation. Such an enactment has been framed in relation to the Tribunal constituted under s. JOB and has now been framed under s. JOE also.\n\nThe new sub-section involves a delegation of the powers of the Central Government to a member of the Board which the Act previously allowed to be made to the Board only. The statute, as it was formerly, gave no authority to delegate it differently or to another person or persons. When it spoke of procedure in sub-section (5) it spoke of the procedure of the Board as constituted. The lacuna in the Act must have been felt, otherwise there was no need to enact sub-section (4A). The argument of the learned Attorney-General that sub-s. (4A> was not needed at all. does not appeal to me.\n\nIt is quite clear that its absence would give rise to the argument accepted by me, which argument is unanswerable in the absence of a provision such as the new sub-section.\n\nMy brother Shelat has dealt with this aspect of the case fully and I cannot add anything useful to what he has said.\n\nI agree with him entirely on this point.\n\nI shall now consider the question of ma/a {ides.\n\nThis uises in two different ways.\n\nThere is first ma/a fides attributed to the chairman because he is said to have acted under the behest of a Minister of Cabinet interested in another rival Company.\n\nIt is not necessary to go into it.\n\nThe Chairman obtained the opinion of quite a few of his assistants (perhaps more than was altogether necessary) and this fact is stated to establish his fairness to and honest dealing with the Company. There is nothing lo show that this was done on purpose to cover up a conspiracy to do ham1 to the Company. On the other hand I cannot overlook the fact that the rival Company itself had obtained a licence to manufacture Barium Chemicals which it allowed to lapse.\n\nThis shows that rivalry between two manufacturing concerns was not the prime\n\n' . '\n\n'.!\n\n~ i\n\nUARruM CHEMICALS v. COM!'. I.Aw BD. (HW.ayutu!l.al1, J.) 335\n\nmotive.\n\nNo doubt the rival Company had tried to obtain the sole selling rights of, and even a share in, this Company. This might have weighed with me but for the fact that the Company itself had done nothing even before action was taken, to establish itself.\n\nThe whole project had hung fire and capital was eaten into a rapid rate because there were technical defects in the setting up of the plant and machinery. There was not much hope of profits as a sole selling agent or even as a partner.\n\nIn these circumstances, I cannot go by the allegations made against the Chairman of the Board personally or those made against the Minister, and I find no evidence to hold that dishonesty on the part of the one or malice on the part of the other lies at the root of this action.\n\nThis brings me to the third and the last question, namely, whether ma/a [ides or the ultra vires nature of the action has been established in this case to merit interference at our hands. In view of my decision on the question of delegation it is hardly ncessary to decide this question but since contradictory opinions have been expressed on it by my brethren Mudholkar and Shelat. I must give my views on this matter. The question naturally divides itself into two parts. The first is whether there was any personal bias, oblique motive or ulterior purpose in the act of the chairman. The\n\necon'.! is what are the powers of the Board in this behalf and whether they have been exercised contrary to the requirements of the Act. The first ground has already been dealt with in part when I considered the malice and influence of the Minister. It may be said at once, that \"part from that allegation, nothing has been said attributing to the Chairman any personal bias, grudge, oblique motive or ulterior purpose. Even in the arguments it was not suggested that the Chairman acted from improper motives. Therefore, all that r have to consider is whether the action of the Chairman can be challenged as done either contrary to the provisions empowering him or beyond those provisions.\n\nIn dealing with this problem the first point to notice is that the power is discretionary and its exercise depends upon the honest formation of an opinion that an investigation is necessary. The words \"in the opinion of the Central Government\" indicate that the opinion must be formed by the Central Government and it is of course implicit that the opinion must be an honest opinion. The next requirement is that \"there are circumstances suggesting etc.\" These words indicate that before the Central Government forms its opinion it must have before it circumstances suggesting certain inferences. These inferences are of many kinds and it will be useful to make a mention of them here in a tabular form:\n\n(a) that the business is being conducted with intent to defraud-\n\n(i) creditors of the company, or (ii) members,\n\nI I 966) BUPP. 8.C.I.\n\nor (iiiJ any other person;\n\n(b) that the business is being conducted-\n\n(i) for a fraudulent purpose or (ii) for an unlawful purpose;\n\n(c) that persons who formed the company or manage its affairs have been guilty of -\n\n(j) fraud or (ii) misfeasance or other misconducttowards the company or towards any of its members.\n\n(d) That information has been withheld from the memo bers about its affairs which might reasonably be expected including calculation of commission payable to- (iJ managing or other director.\n\n(ii) managing agent.\n\n<iiil the secretaries and treasurers.\n\n(iv) the managers.\n\nThese grounds limit the jurisdiction of the Central Government. No jurisdiction, outside the section which empowers the initiation of investigation, can be exercised. An action, not based on circumstances suggesting an inference of the enumerated kind will not be valid. In other words, the enumeration of the inferences which may be drawn from the circumstances. postulates the absence of a general discretion to go on a fishing expedition to find evidence. No doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. If the action is questioned on the ground that no circumstance leading to an inference of the kind contemplated by the section exists. the action might be exposcJ to interference unless the existence of the circumstances is made out. As my brother Shel at has put it trenchantly:\n\n\"It is not reasonable to say that the clause permitted the Government to say that it has formed the opinion on circumstances which it thinks exist... \" Since the existence of \"circumstancs\" is a conditian fundamental\n\nto the making of an opinion. the existence of the circumstances, G if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusions of certain definiteness. The conclusions must relate to an intent to defraud, a fraudulent or unlawful purpose, fraud or misconduct or the withholding of information of a particular H kind. We have to see whether the Chairman in his affidavit has shown the existence of circwnstances leading to such tentative\n\n• F\n\nl<.ll<IU!d CHEMIOALS \"· mMP. LAW P.D. (Hidayatulla.h, J.) 337\n\nconclusions. If he has, his action cannot be questioned because the i:1ference is to be drawn subjectively and even if this Court would not have drawn a similar inference that fact would be irrelevant.\n\nBut if the circumstances pointed out are such that no inference of the kind stated in s. 237(b) can at all be drawn the action would be ultra vires the Act and void.\n\nNow the Chairman in his affidavit referred to two memoranda dated May 30, 1964 and July 4, 1964 presented by certain exdirectors and also stated that from September 1961 complaints were being received in regard to the conduct of the affairs of the Company, and one such complaint was received from Special Police Establishment in November 1963. The nature of the complaints was not disclosed but in reference to the memoranda it was stated that \"irregularities\" and \"illegalities\" in the conduct of the affairs of the Company was alleged therein. It was also stated that the memoranda \"were supported by documentary evidence and details of the impugned transactions and the signatories offered to produce witnesses with knowledge of these transactions\". This was followed by an enquiry by the Regional Director of the Board at Madras (Shri R. S. Ramamurthi. I.A.S.) who made a report in September 1964. The report was next considered by two Under Secretaries and by the Secretary of the Company Law Board who all agreed \"that there was need for a deeper probe into the affairs of the Company\". The matter was then placed before the Chairman who formed the opinion that there were circumstances suggesting the need for action under s. 237(b). None of the reports was produced. Nor was there any indication in the affidavit what their drift was. There was considerable delay in taking up the matter and this was explained as occasioned by the language riots, and other more pressing occupation. It appears that in the High Court an offer was made to place the reports etc. in the hands of the Court provided they were not shown to the other side, but no such offer was made in this Court. The High Court did not look into the documents.\n\nHad the matter rested there it would have been a question whether this Court should interfere with a subjective opinion, when the affidavit showed that there were materials for consideration.\n\nIt would then have been a question whether this Court could or should go behind the affidavit. I leave that question to be decided in another case where it arises. In this case it is not necessary to decide it because the affidavit goes on to state:\n\n\" ......... However from the Memoranda received by the Board referred to in paragraph 5 and other examination it appeared inter alia that:\n\n(i) there had been delay, bungling and faulty planning of this project, resulting in double expenditure, for which the collaborators had put the responsibility upon the Managing Director, Petitioner No. 2;\n\n338 SlTPREll1' C'OURT ><FPORI~\n\n[ 1966] SUPP.\n\nS.0.B,\n\n(ii) Since its floatation the company has been continuously showing losses and nearly I/ 3rd of its share capital has been wiped off;\n\n(iii) that the shares of the company which to start with were at a premium were being quoted on the Stock Exchange at half their face value; and\n\n(iv) some eminent persons who had initially accepted seats on the Board of directors of the company had subsequently severed their connections with it due to difference' with Petitioner No. 2 on account of the manner in which the affairs of the company were being conducted.\"\n\nParagraph 14 of the affidavit). o It may be mentioned .hat in paragraph 16 of the affidavit the Chairman also stated:\n\n\"With reference to paragraph 21 of the petition, I have already stated above that there was ample material before the Board on which it could and did form the opinion that there were circumstances suggesting that the business of the company was being conducted with intent to defraud its creditors, members and other persJns and further that the persons concerned in the management of the affairs of the company had in connection therewith been guilty of fraud, misfeasance and other misconduct towards the company and its members.\"\n\nThe question thus arises what has the Chairman placed before the Court to indicate that his action was within the four corners of his own powers? Here it must be noticed that members are ordinarily expected to take recourse to the Registrar because there they have to be in a certain number or command a certain proportion of the voting power. They are also required to give evidence and the Company gets an opportunity to explain its actions. If s. 237(b) is used by members. as an alternative to s. 236, the evidence must unerringly point to the grounds on which alone action can be founded. In my opinion there is nothing to show that the reports which were being received from September 1961, or the report of the Special Police Establishment indicated fraud. illegality or action or actions with intent to defraud. as contem- ' plated by the section. The affidavit merely says that these reports indicated the need for a deeper probe. This is not sufficient. The material must suggest certain inferences and not the need for \"a deeper probe\". The former is a definite conclusion the latter a mere fishing expedition. A straight-forward affidavit that there were circumstances suggesting any of these inferences was at least necessary. There is no such affidavit and the reason is that the Chairman completely misunderstood his own powers. This is indicated by the enumerntion of the four circumstances I have ex tracted from his affidavit and I proceed to analyse them.\n\np •\n\n-~ ·~\n\n;. :i\n\nF ..\n\nBARirM CIU:MICALS 1'. COMP. LAW~BD. (llir/f, yatullnh, J.)· 339\n\nThe first circumstance is \"delay, bungling and faulty planning\" resulting in \"double expenditure\" for which the collaborators had put the responsibility on the second appellant. None of these shows an intent to defraud by which phrase is meant something to induce another to act to his disadvantage. The circumstances mentioned show mismanagement and inefficiency which is not the same thing as fraud or mis-conduct. The second and the third circumstance merely establish that there was loss in making this project work and that a part of capital had been lost. This was admitted by the appellants who pointed out that after considerable negotiations they induced Lord Poole, the President of the collaborating firm, to invest a further sum of £25,000.\n\nThis shows that the appellants were in a position to dictate to the collaborating company which they would not have been able to do if they were guilty of fraudulent conduct. The last circumstance does not also bear upon the subject of fraud and acts done with intend to defraud.\n\nThat some directors have resigned does not establish fraud or misconduct. There may be other reasons for the resignation.\n\nIn the other part of the affidavit the Chairman has merely repeated s. 237(b) but has not stated how he came to the conclusion and on what material. In other words, he has not disGlosed anything from which it can be said that the inference which he has drawn that the Company was being conducted with intent to defraud its creditors, members and other persons or persons concerned in the management of the affairs of the Company were guilty of fraud, mis-feasance and misconduct towards the company and its members was based on circumstances present before him.\n\nIn fact, paragraph 16 is no more than a mechanical repetition of the words of the section.\n\nComing now to the affidavit of Mr. Dang I find that he merely repeats what was stated in the affidavit of the Chairman. He also said that he had seen the papers and agreed with his two Under Secretaries and the Regional Director that a \"deeper probe\" was necessary. There is no hint even in this affidavit that the circumstances were such as to suggest fraud, intent to defraud or misconduct, this is to say, circumstances under which investigation can be ordered. The other affidavits also run the same way and it is not, therefore, necessary to refer to them. We are concerned really with the affidavits of the Chairman and Mr. Dang in relation to the exercise of the power conferred by s. 237(b). Neither proves the existence of circumstances under which the power could be exercised. In my opinion, therefore, the action has not been proved to be justified. No doubt. the section confers a discretion but it sets its own limits upon the discretion by stating clearly what must be looked for in the shape of evidence before the drastic act of investigation into the affairs of a company can be taken. The affidavits which were filed in answer to the petition do not disclose\n\n340 St.PRF'Ml~ COURT nEl'ORT~ [lfi] Sl'PF.\n\nS.C F,\n\neven the prima facie existence of these circumstances.\n\nOn the .4. other hand, they emphasise only that there was mis-management and losses which necessitated a \"deeper probe\". In other words, the act of the Chairman was in the nature of a tishing expedition and not after satisfaction that the affairs of the Company were being carried on even prima facie with the intent to defraud or that the persons incharge were guilty of fraud or other misconduct.\n\nB As to the constitutionality of s. 237<bJ I agree with my brethren Bachawat and Shelat and have nothing to add. I. therefore. agree with my brother Shelat that the appeal must be allowed. There will be no order about costs.\n\nBachawat, J. The order dated May 19, 1965 was µassed by the Chairman of the Company Law Iloard Mr. Setalvad submitted C that only the Board could pass an order under s. 237, the Central Government could delegate its function under s. 237 to the Board but it had no power to authorise the Chairman to subdelegate this function to himself and consequently, the Company Law Board (Procedure) Rules, 1964 made by the Central Government on February I. 1964 and the Chairman's order of distribution of business dated February 6, 1964 delegating the function of the Board D under s. 237 to the Chairman are ultra vires the Companies Act and the impugned order is invalid. The learned Attorney-General disputed these submissions.\n\nAs a general rule, whatever a person has power lo do himself, he may do by means of an agent. This broad rule is limited by the operation of the principle that a delegated authority cannot be redelegated, delegatus non palest clelegare. The n.1ming of \" delegate to do an act involving a discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him, and there is a presumption that he i.- required to do the act himself and cannot re-delegate his authority. As a general rule, \"if the statute directs that certain acts shall be nn0 in a specified manner or by certain persons, their performance in any other manner than that specified or by any other person th\"n one of those named is impliedly prohibited.\" See Crawford on Hatutory Construction, 1940 Edn., art. 195, p. 335. Normally, a discretion entrusted by Parliament to an administrative organ must be exercised by that organ itself. If a statute entrusts an administrative function involving the exercise of a discretion to a Board consisting of two or more persons it is to be presumed that each member of the Board should exercise his individual judgment on the matter and all the members of the Board should act together and arrive at a joint decision. Prima facic, the Board must act as a whole and cannot delegate its function to one of its members.\n\nThe learned Attorney-General submitted that a distribution of business among the members of the Company Law Board is not a delegation of its authority, and the maxim has no application in\n\nF •\n\nBARIUM Cf!F.,~IGALR /', COMP. LAW BD. (Bachawat, J.) 341\n\nsuch a case. I cannot accept this submission. In Cook v. Ward('), the Court held that where a drainage board constituted by an Act of Parliament was authorised by it to delegate its powers to a committee, the powers so delegated to the committee must be exercised by them acting in concert and it was not competent to them to apportion those powers amongst themselves and one of them acting alone, pursuant to such apportionment, could not justify his acts under the statute. Lord Coleridge, C. J. said at p. 262: \"It was not competent to them to delegate powers. which required the united action of the three, to be exercised according to the unaided judgment of one of them.\" Again, in Vine v. National Dock Labour Board('), the House of Lords. held that a local board mt up under the scheme embodied in the schedule to the Dock Workers (Regulation of Employment) Order, 1947 had no power to assign its disciplinary function under els. 15(4) and 16(2) of the scheme to a committee and the purported dismissal of a worker by the committee was a nullity. Jn my opinion, the distribution of the business of the Board among its members is a delegation of its authority.\n\nBut the maxim \"delegatus non potest delegare\" must not be pushed too far. The maxim does not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority.\n\nPrima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the statute should be adopted.\n\nUnder ss. JOE(!) and 637(1)(a), the Central Government has power to constitute a Company Law Board and to delegate its functions to the Board. The Board can consist of such number of persons not exceeding five as the Government thinks fit. One of the members of the Board has to be appointed a Chairman and this necessarily implies that the Board shall consist of at least two members. As a matter of fact, the Government constituted a Board consisting of two members and appointed one of them as Chairman .\n\nTo this Board the Government delegated its function under s. 237.\n\nSection 637 shows that the function under s. 237 can be delegated to the Board and to no other authority. The function under s. 237(b) involves the exercise of a discretion. Prima facie, all the members of the Board acting together were required to discharge this function and they could not delegate their duty to the Chairman. However, under ss. 10E(5) and 642(1), the Central Government may frame rules regulating the procedure of the Board and generally to carry out the purposes of the Act. In the context of s. !OE, I am inclined to construe this rule-making power liberally.\n\nThe Central Government has power to constitute the Company Law Board, to delegate its functions to the Board and to control\n\n(') [1877) L.R. 2 C.P.D. 2M.\n\n(') [1957] A.C. 488.\n\n[Hl66] S1'l'P. s.O.B.\n\nthe Board in the exercise of its delegated functions. In this back ground, by conferring on the Central Government the additional power of framing rules regulating the procedure of the Board and generally lo carry out the purp.:>ses of s. 1 OE, the Parliament must have intended that the internal organisation of the Board and the mode and manner of transacting its business should be regulated entirely by rules framed by the Government. The Government had, therefore, power to frame the Company Law B0ard (Procedure) Rules, 1964 authorising the Chairman to distribute the business of the Board. In the exercise of the power conferred by this rule, the Chairman assigned the business under s. 237 to himself. The Chairman alone could, therefore. pass the impugned order. Act No. 31 of 1965 has now inserted sub-s. (4A) in s. IOE authorising the Board lo delegate its powers and functions to its Chairman or other members or principal officer. The power under subs. f4AJ may be exercised by the Board independently of any rules framed by the Central Government. We find, however. that the Central Government had under ss. IOE(5) and 642(1) ample power to frame rules authorising the Chairman to distribute the business of the Board. The wide amhit of this rule-making power is not cut down by the subsequent insertion of sub-s. \\4A) in s. 1 OE.\n\nSections 235, 237(a) and 237(b) enable the Central Government to make an order appointing an inspector to investigate the affairs of a company in different sets of circumstances. and the contention that s. 237(bl is discriminatory and is violative of Art. 14 must fail. I also think thats. 237(b) is not violative of Arts. 19(1)(0 and l 9(l)(g) of the Constitution. The company is not a citizen and has no fundamental right under Art. 19. Appellant No. 2 who is\n\nthe managing director of the company is not a ci1i1cn. but even assuming that s. 237(b) imposes restrictions on his right of property or his right to carry on his occupation as managing director, those restrictions are reasonable and are imposed in the interests of the general public.\n\nOn the question of ma/a (Ides, I am indineJ lo think that the Chairman passed the order dated May 19, 1965 independently of and without any pressure from the Minister.\n\nI am all the more persuaded to come to this conclusion having regard to the fact that in paragraph 14 of his affidavit the Chaimian has disclosed the circumstances which he took into account in passing the order. In paragraJ?hs 5, 8 an? 16 of his affid_avit, the.Chairman stated that he had var10us materials on the basis of which he pa, sed the order.\n\nBut, on reading this affidavit as a whole and the affidavit of Mr.\n\nDang I am satisfied that in paragraph 14 of his affidavit the Chairman bas set out all the material circumstances which had emerged on an examination of the various materials before him. Briefly put, those circumstances are delay. bungling and faulty pbnning by the management resulting in double expenditure. huge losses, sharp fall in the price of the Company's hares and_ the es_ignati?n of some of the directors on account of differences m opinion with\n\nA '\n\niiARIUM nmMIOALS '\"COMP. LAW }ID. (8helat, J.) 343\n\nthe managing director. I think that these circumstances, without more, cannot reasonably suggest that the business of the company was being conducted to defraud the creditors, members and other persons or that the management was guilty of fraud towards the company and its members. No reasonable person who had given proper consideration to these circumstances could have formed the opinion that they suggested any fraud as mentioned in the order dated May 19, 1965. Had the Chairman applied his mind to the relevant facts. he could not have formed this opinion. I am, therefore, inclined to think that he formed Lhe opinion without applying his mind to the facts. An opinion so formed by him is in excess of his powers and cannot support an order under s. 237(b).\n\nThe appeal is allowed. and the impugned order is set aside. I concur in the order which Shclat, J. proposes to pass.\n\nShelat J. The appellant company is a public limited con; pany registered on July 28, 1961 having its registered office at Ramavaram in Andhra Pradesh and the second appellant was at all material times and is still its managing director.\n\nOn August 25, J 959 and September 23, I 960 appel1ant No. 2 obtained two licences for the manufacture of 2500 and 1900 tonnes of b:1riurn chemicals per ye if in the name cf Transworld Traders of which he was the proprietor. He then started negotiations with Kali Chem'.e of Hannover, West Germany to collaborate with him in setting up a plant. While he was so negotiating, MI s, IT'. T.\n\nKrishnamachari & Co .. who were the sole selling agents of the said German Company. approached the 2nd appellant for the scle selling agency of barium products of the plant proposed to be put up by the 2nd appellant. The 2nd appellant did not agree. On December 5, 1960 M/s. T. T. K. & Co., applied for a licence for manufacture of barium chemicals. On December 23, 1960 the 2nd appel !ant wrote a letter to the Minister of Commerce and Industry objecting to the grant cf a licence to Ml s. T. T. K. & Co. Both were considered by the Licc:osing Committee. The Committee rejected the application of Mis. T. T. K. & Co .. but advised them to apply again after six months. On a representdtion by M f s. T. T. K. & Co., the Committee reconsidered the matter and recommended the grant of licence to M ls. T. T. K. Chemicals Private Limited. The second appellant once more protested, this time ta the Prime Minister but that was rejected.\n\nOn July 28. 1961. an a:; recmcnt between the appellant company and L.A. Mitchell Ltd .. of Manchester was signed whercunder the latter agreed to put up the plant on the appellant company agreeing to pay them £184.500. On November 27. 1961, the Government granted a licence to the company for the import of machinery., In the mean time, respondent No. 2 was appointed a, Minister without portfolio and rejoined lhe Cabinet which he had left earlier owing to certain circumstances which are not relevant for the present. From January, J 962 to March, J 963, he continued a• a\n\nL/S3SCI-21\n\nSUPREME COL'RT REroRTS (1966j\n\nSUPP.\n\n8.C.R\n\nMinister without portfolio but from March, 1963 to September, 1963, A he became the Minister for Defence and Economic Coordination and thereafter the Finance Minister. On August 30, 1962, the licence granted to Mis. T. T. K. Chemicals Ltd. was revoked as the company had decided to surrender it.\n\nIt would seem that the appellant company was not faring as B well as was hoped and though it had been incorporated as early as July, 1961 producfon had not commenced. There arcse also disputes among its directors. On May 30. 1964 and July 9, 1964 four of its directors submitted two memoranda alleging irregularit; es and even illegalities in the conduct of the company's affairs to the Company Law Board. According to the second appellant, the four directors were disgrunt1ed directors, hostile to him and the comc pany. The company was not able to start work in full capacity not because of any irregularities but because of the faulty planning and designing by the collaborators. The company realised this fact only in June, 1964 when it received a survey report after the breakdown of the plant during that month from Mis. Humphreys and Glascow (Overseas) Ltd., Bombay. In September. 1964, a meeting was arranged in London between the company\"s representatives and the re- D prescntatives of L.A. MitcheLl Ltd .. of which Lord Pcolc was the Chairman. It was agreed that L. A. Mitchell Ltd .. should depute MI s. Humphreys and Glascow Ltd .. London, to go through the designs etc., and to make a report showing the causes of the repeated failures of the plant and suggesting remedies therefor. Lord Poole also agreed that the factory would be commissioned without any further delay and that L.A. Mitchell Ltd .. would carry out the E necessary repairs at their cost. While these negotiations were going on. representatives of Mis. Kali Chemie of Hannover arrived in India to negotiate a collaboration agreement with the company.\n\nOn April 4. 1965. a meeting of the company's directors was held in New Delhi which was attended by one Kriegstcin. a representative of Kali Chemie and also by the General Manager of M Is.\n\nT. T. K. & Co. Certain proposals were discussed and it was decided r ... that the company should give notice to L. A. Mitchell Ltd. cancelling the agreement with them. Accordingly. by a notice dated April 2. 1965 the agreement with the said L. A. Mitchell Ltd , was C<Jncelled. On May 7, 1965 representatives of the appellant company and of Kali Chemie met at Stuttgart when propc, suls for an agreement were discussed. One of these proposals was that the company should be reorganised and its share capital should be distribut- G cd in the following proportions: 49 per cent to the appellant company. 26 per cent to Kali Chem; e and 25 per cent to M; s. T. T. K. & Co. It was also proposed that Kali Chemic should take over the\n\nresponsibilit~· on the production side. the appellant company would be responsible for the management and Mis. T.T.K. & Co. should take over s 1les promotion. Before however these negotiations H could take concrete shape. Lord Poole came over to India. A meeting was held on May 10, 1965 between him and the directors of the\n\nBARIUM CHEMirArniv. COMP. f, AW, BD. (Shelat, J.) 345\n\nappellant company. Lord Poole agreed that the British company would put in £250,000 in addition to the amount already invested by it and that production would commence from June, 1965. On May 11, 1965 another meeting took place when it was decided that without prejudice to what was stated in the notice of April 4, 1965, the appellant company should withdraw para 9 thereof whereby the agreement between them was terminated. By May 11, 1965, the position therefore was that the collaboration agreement between the company and L. A. Mitchell Ltd. was agreed to be continued and consequently the negotiations with the German company and M/s.\n\nT. T. K. & Co., were not to proceed further.\n\nOn May 19, 1965 the first respondent passed the impugned order which inter alia stated: -\n\n\"In the opinion of the Company Law Board there are circumstances suggesting that the business of MI s . Barium Chemicals Ltd .......... is being conducted with intent to defraud its creditors, members and other persons; and forther that the persons concerned in the management of the dfairs of the company have in connection therewith been guilty of fraud, misfeasance and other misconduct towards the company and its members.\n\nTherefore, in exercise of the powers vested by clause (b) of section 237 of the Companies Act 1956 (Act, 1 of 1956.> read with the Government of India, Department of Revenue Notification No. GSR 178 dated the 1st February 1964, the Company Law Board hereby appoint.. ................................ .. . .. .. . .. . . . . . . . . . .. .. .. .. .. . . . . . . . . .. . .. .. .. . . .. as Inspectors to ic vestigate the affairs of the company since its incorporation in 1961 ..\n\nOn May 25, 1965 search warrants were obtained by respondents 3 to 10 and accordingly search was carried out at the office F of the company at Ramavaram and at the residence of the second appellant and several documents and files were seized. On May 28, 1965, the second appellant submitted a representation to the ( hair man of the first respondent Board. He explained that out cf the company's paid up capital of Rs. 50 lacs, shares of the vabe of about Rs. 47 lacs were owned by members of the public, th:•t the ccmpany was the first of its kind in India, that it could not go into G proJuction soon because of the defective planning by the co'laborators, that as a result of recent negotiations, the collaborators had agreed to invest£ 2,50,000 more and that the company's factory had now commenced prctluction from April 1964, that the Board appeared to have acted on the complaints filed by the said four directors who resented the second appellant's refusal to purchase their H holdings at.a price above par demanded by them; that though those complaints were lodged some two years ago and were not acted L/S5SCI-24(a)\n\n346 SUl'RF.ME CGUHT REPO!tl'S [1966] SUFI'. s.c.i\\.\n\nupon, they were sought now lo be made the basis of the impugned order on account of trade rivalry between the company and MI s.\n\nT. T. K. & Co .. that the order was ma/a fide and that it was made <ln grounds extraneous to the provisions of s. 237(b) and at the instance of the second respondent. On receipt of this representation, the Chainnan of the first respomlcnt Board contacted the second respondent and at the latter's instance the Prime Minister by an order dated May 31, 1965 transferred the case to the Home Minister.\n\nIt was against Ihe backgraund of these allegations that the appellants filed a petition in the Punjab High Court under Art. 226 for having the impugned order qu<1shed and for certain other reliefs.\n\nThe appellant> alleged therein that the impugned order W<JS ma/a fide and passed at the inst<Jnce of the 2nd respondent who was unfavourably disposed towards them. that it was made under Rules which were illegal. and last'y. that it was also illegal as it was passed under provisions violative of Art. 14 and Art. 19( [) (gl of the Constitution. On June 11, 1965, the appellants applied to the High Court for production of certain documents. That application was dismissed. On September 7, 1965. they filed another application for cross-examination of the 2nd respondent and production of two letters. One dated March 15, 1961 by one Schemidtmann and the other dated July 27. 1965 by Andhra Bank Ltd. to the Reserve Bank of India. The High Court did not pass any separate order\n\non this application but dismissed it in the course d its judgment on the main petition on the ground that it \"as not necessary to take additional evidence and that tl1e allidavits fi'ed by the parties were enough for the disposal of the petition. On October 7. 1965, the High Court dismissed the petition observing that the appellants had failed to establish their allegation as to ma/a fide.1 and accepted the respondents' contention that the decision to order investigation was arrived at in December. 1964 but could not be crystaliscd into a formal Jrder till May 19, 1965 owing t<> 1angu;:ge strikes in Madras and other administrative dilliculties and that the fact that the order was ultimately passed on May 19. 1965 soon after the said meetings of the\n\n10th and I I th May 1965 was a mere coincidence. The High Court was also of the view that even assum; ng that the second respondent had retained his interest in Mis. T. T. K. & Co .. and that firm was interested in the production of barium chemicals or for being appointed as sole selling aents or otherwise, the first respondent, its chairm.:n and officials were not shwn to have been aware of the second respondent's interest in Mis. T. T. K. & Co. and therefore in the abicnce of any allegation of personal malice against them the alle2ation as to mal<z {ides failed. The High Court also rejected the contention that s. 237(b\\ was ultra vi res Arts. 14 and 19(1 )(gl\n\nor that the procedure laid down under power conferred hy the Rules or the Rules 1hemscl\\'es were invalid.\n\nOn behalf of the appellants, the following four contentions were ratsed: (I) that the impugned order dated May 19, 1965 was\n\nBARIUM CHEMICALS v. COMP. LAW BD. (Shelat, J.) 347\n\nmala fide, that the High Court erred in failing to give due weight to the persona,• hostility of the 2nd respondent against the appellants and deciding the petition on the footing that the first respondent was an independent authority and that it was its Chairman who on his own had formed the requisite opinion and passed the order and therefore the motive or the evil eye of the second respondent was irrelevant. The High Court also erred in failing to appreciate that even though the impugned order was by the Chairman, jt had to receive and in fact received the second respondent's agreement and therefore if the second respondent's ma/a fides were established they would vitiate the order. Therefore, the High Court ought to have taken additional evidence and allowed the production of documents as prayed for by the appellants; (2) that even taking the circumstances said to have been found by the first respondent, they were extraneous to s. 237(b) and could not constitute a basis for the impugned order and the order therefore was ultra vires the section; (3) that the impugned order was in any case bad as it was passed by the Chairman alone acting under Rule's under which such a power was conferred in contravention of the provisions of s. JOE; and (41 that the impugned order was bad because s. 237(b) itself was bad as offending against Arts. 14 and 19(1)(g).\n\nBefore these contentions are dealt with it is necessary first lo consider the relevant provisions of the Act, the Rules made thereunder and the order of distribution of work passed by the Chairman oif the Board in pursuance of these Rules.\n\nSection 234 empowers the Registrar to call for information or explanation. Sub-section 1 provides that if on perusing any document which a company is required to submit to him under the Act, the Registrar is of opinion that any information or explanation is necessary with respect to a matter to which such document purports to relate, he may call on the company to furnish the said information or explanation. If that is done it is the duty of the company and its officers to furnish information or explanation. If such information or explanation is not furnished or is inadequate, the Registrar has the power to order production of such books and papers he thinks necessary for his inspection and thereupon it is the duty of the company and its officers to produce such books and papers. Sub-section 4 provides for penal consequences for failure to furnish information or explanation or to produce the books and papers. Sub-section 6 provides that if the said information or explanation is not furnished within the speoified time or if on perusal of such informotion or explanation etc., furnished or produced under sub-s. 3A or 4 the Registrar is of opinion that the document referred to in sub-s. 1 tdgether with such information or explanation to be furnished as aforesaid discloses an unsatisfactory state of affairs, he has to report the case to the Central Government. Subsection 7 provides that if it is represented to the Registrar on materials placed before him by a contributory or a creditor or any other\n\n348 Slll\"RE!d& OOURT RHORT8 (1966] Sl.'PP. s.c.R.\n\nperson interested that (i) the business of the company is being carried on in fraud of its creditors or of persons dealing with the company or (ii) otherwise for a fraudulent or unlawful purpose. he may call upon the company to furnish any information or explanation on matters specified in the order after giving the company an opportunity of being heard. The said representation must be by a contributory or creditor or a person interested and it must be on materials showing that the business of the company is being carried on in fraud of creditors or members or other persons dealing with the company or otherwise for a fraudulent or unlawful purpose. If he is satisfied that the representation is frivolous or vexatious he has to disclose the identity of such informant to the company, presumably, to enable the company to take such action against him as it thinks fit. Section 234A deals with the seizure of documents by the Registrar in the circumstances set out therein. While s. 234 deals with the Registrar's power to call for information or product; on of documents and papers, section 235 and onwards deal with investigation. Section 235 empowers the Central Government to appoint inspectors to investigate the affairs of a company\n\n(a) on an application of not less than 200 members or by members holding not less than l / IOth of the voting power, or (b) on an application. in the case of a company not having a share capital, or not less than I I 5th in number of persons on the company's register of members, or (c) on a report by the Registrar under sul>-secs. 6 or 7 read with sub-sec. 3 of s. 234. Section 236 provides that an application by members under cl. (a) or (b) has to be supported by such evidence as the Central Government may require. Thus both under s. 234 and s. 235 before action is taken certain conditions have to be complied with. under s. 234, an opportunity of being heard and under s. 235 the application has to be not only by a certain number of members but has to be accompanied by evidence.\n\nSection 237(a) authorises the government to appoint investigators if the company by a special resolution or the Court by an order declares that the company's affairs should be investigated. Clause\n\n(b) empowers the government to do so if in its opinion there are circumstances suggesting (i) that the business of the company is being conducted with intent to defraud its creditors. members or any other persons or otherwise for a fraudulent or unlawful purpose or in a manner oppressive of any of its members or (ii) that the company or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards the company or any of its members. Sub-cl. (iii) is not relevant and therefore need not be cited.\n\nThus the consideration on which action is permissible under\n\ns. 234 and the kind of action taken thereunder are different from those under s. 237. It is true that the authority to take action under H s. 23'i is the government and the action authorised thereunder is investigation b-ut action can be taken thereunder not suo moto but\n\nBARIUM CHEMICALS V. COMP. J, AW BD. (Shelat, J.) 349\n\nonly on an app!ication by a certain number of members or by members with a certain amount of voting power or on the Registrar's report. Section 234, besides, has nothing to do with investigation as s. 235 and s. 237 have, though on a report under s. 234, the government can institute investigation under cl. (e) of s. 235 .. Section lOE was inserted in the Act by Act LIU of 1963 and deals with the constitution of the Company Law Board. The Board constituted under this section consists of a Chairman and members. By a notification G. S. R. 176 dated February 1, 1964 the Central Gdvernment constituted the Company Law Board under s. lOE. By another N0tiftcation No. G.S.R. 178 it delegated some of its powers under the Act including those under s. 237 to the Board. On the same day, it also published Rules under s. 642(1) read with s. 10E(5) called the Company Law Board (Procedure) Rules, 1964. Rule 3 empowers the Chairman of the Board to distribute the business of the Board among himself and the other member or members and to specify the cases or classes of cases which shall be considered jointly by the Board. On February 6, 1964, the Chairman, under the power vested in him by r. 3 passed an order distributing the business of the Board between himself, the other member and the Board. Under this order the business of ordering investigation under sections 235 and 237 was allotted to himself to be performed by him singly.\n\nReverting now to the contentions urged by Mr. Setalvad, the first was that the impugned order though passed by the Chairman of the Board was really the order of the second respondent and was actuated by malice and hostility which he bore towards the appellants. In the alternative, it was urged that if the order were held to be the order of the Chairman, it was passed at the 2nd respondent's instance, the Board and its Chairman being under his control and the order in fact having also been passed after he had agreed to it. The order in either event was mala fide and in fraud of the statute, it being actuated by the hostility which the 2nd respondent bore against the appellants. The mala {ides alleged against the 2nd respondent fall under two heads; (!) the trade rivalry between the anpellant company on the one hand and MI s. T. T. K. & Co .• on the other in which the 2nd respondent continued to retain interest in spite of his having apparently gone out as a partner, and (2) the personal hostility, political and otherwise which existed between\n\nt11e 2nd respondent and the appellants which actuated the 2nd respondent to have the impugned order passed with a view to ruin the company and the 2nd appellant.\n\nAs regards the first head of mala fides, Mr. Setalvad relied on certain documentary evidence, and argued that the second respondent exploiting his position as a Minister tried to further the interests of MI s. T. T. K. & Co., in which he continued to have interest in one way or the other and that his stand that he went out of the firm long before he became the Minister and had nothing to do\n\n350 .-it:PRI'ME ('0l\"J~T RFPPRT~ (1966]\n\nSUPP.\n\nB.C.J!\n\nwith it thereafter as not true. The registration of the firm on De- A cember 21, 19-13 shpw, that the 2nd res-pondent was a p.:rtner therein aJ, mg with his 'on Narasimhan and one G. Veeraghavan. It appears that in 19-17 there w;1s a change in the !inn's constitution. • The registration on April 18, 1947 shows th:1t the 2nd respondent ceased to b~ a partner. h; s two sons. T. T. Narashimham and T. T.\n\nRangaswami were henceforth the partners and in his place was B substituted his minor son. T. T. Vasu. entitled to the benefits of the firm. the minor son being represented by the 2nd respondent as his fother and guardian. The said minor son attained majority on April\n\n27. 1947 but he gave notice of election to become a partner only on April 5. 1952. It was said that this fact indicated that the 2nd respondent maintained his interest till April, 1952. According to the 2nd appellant, the 2nd respondent's active interest in the firm C did not cca'e even after 1952. Mr.\n\nSctalvad pointed out a letter dated M:irch 30, 1965 from Kali Chemie to the Manager of the firm in which the German concern acknowledged their gratitude towards the 2nd respondent in the following terms: -\n\n\"Moreover. we thank you for your good suggestion and reminder ;; s to the next step to be taken; the produc- D tion partly to he taken up in India; We owe special thanks to Mr. T. T. Krishnamachari for his readiness to put up the ncceS>ary plant. We gave you previously the assurance to consider such a question a1ways favourably and we rcpe;' t that assurance.\"\n\nThe letter further suggested that the installation of the plant referred to therein should not be rushed through \"unless there arc E other reasons. for instance import policy for certain preparations and/or equipment fpr pharmaceutical products.\" Reliance was also\n\n..J placed on a letter dated March 15. 1961 by one Schmidtmann. the appcilants' representative in Hannover to the 2nd appellant in which it was stated that Kali Chemic were expecting a. visit there by the 2nd respon<lent and were confident that \"an arrangement can be reached in the matter proposed by you,\" presumably a col- F • labmation agreement between the appellant company and the German company. The submiss; on was that these and other such documents established that the 2nd respondent had all throughout retained interest in M /s. T. T. K. & Co., that there was on that account trade rivalrv between him and the appellant company and that due to his sustained intere; t in the !inn. apart from his three sons being the partners therein. it was hardly to be expected that G the 2nd respondent would permit the appellant company to go on with its project. On the question of personal animosity. it was pointed out that soon after the 2nd respondent became the Commerce and Industries Minister in 1952. he was instrumental in getting a licence issued to Madras Motors Ltd. in Decemher 1953 for the manufacture of motor cycle. In March 1955, another manufactur- P. ing concern, the Ideal Motors of Bombay. applied fur a similar licence. But thot application was rejected as the Standing Committee\n\n·~\n\nBARlcM OE!RMICALS \"· COMP. I.AW JlD. (Shelat J.) 351\n\non Automobile Industry decided that there was no scope for manufacture of more than one make of motor cycles and scooters. After the 2nd respondent ceased to be a Minister in 1958, the 2nd appel.ant made a representation to the then Minister of Ccn, merce\n\nand Industries against what he called manipulations in the policy of manufacture of motor cycles in favour of the said Madras concern with which he alleged the 2nd respondent was on friendly terms. The case of the 2nd appellant was that it was due to his efforts that the government revised its policy in 1959, invited applications from other persons interested in the manufacture and on April 9, 1960 granted a licence to the Ideal Motors of Bombay for manufacture of motor cycles. It was also pointed out that in the General Elections of 1957, the 2nd appellant supported the candidature of one Balasubramania Mudaliar, the rival of the second respondent.\n\nMr. Setalvad argued that these facts established at least prima facie case of (i) the 2nd respondent's continued interest in M/s.\n\nT.T.K. & Co. in spite of his denial, (ii) the trade rivalry between the appellant company and M/s. T.T.K. & Co., (iii) the attempt of that firm to have control or at least a substantial interest in the appellant company through a collaboration agreement with the German company and (iv) of personal animosity. He contended that with this background the appellant company should have been afforded an opportunity to establish its case of mala fide by being allowed to cross-examine the 2nd respondent and the Chairman of the Board and of adducing further documentary evidence by compelling the respondents to produce such documents as were required by the appellants to establish their case. His contention was that the High Court erred in turning down the applications for crossexamination and production of documents. He also argued that under s. 1 OE(!) the first respondent Board was only a delegate of the Central Government and therefore the impugned order, though passed by the Board, was the order of the government and the 2nd respondent being the head of the Department, that fact coupled with his agreement of that order, made the impugned order both in fact and in law his order.\n\nIn this connection reliance was placed on Roopchand v. State of Punjab('). This decision cannot assist the appellants for the question decided there was that where power is delegated to an authority and the delegate passes an order under such delegated power, the order is the order of the government and the government cannot interfere with it in its revisional jurisdiction. In the present case we are not concerned with the question of the power of revision by the government. Though the impugned order was passed under a power delegated to the Board, factually it was passed by the Chairman and not by the 2nd respondent. The appellants' case was that though the four directors, who had resigned, had submitted their memoranda, the Board had declined to take any action.\n\n(') [1963] Supp. 1 S.C.R. 539.\n\n852 Sl:l'FE'.llE CO\\:RT REPnRTS\n\n[!MG] S\\; PP c.n\n\nThe allegation was that one Sabanathan, one of the four directors and one Somasundaram, who were the friends of the 2nd respondent and his sons. had thereafter discussed the matter of the appellant company with the 2nd respondent, that at the instance of the 2nd respondent they sent a petition to the Board and then the 2nd respondent directed the 7th respondent to prepare the impugned order. The case there stated is that the order was \"prepared by respondent No. 7 in accordance with the aforesaid directions given by respondent No. 2 without obtaining the prior approval of the members of the Company Law Board and the members of the Company Law Board never applied their mind to the material before the passing of the order.\" Thus the appellants' case as to ma/a {ides was that the impuh'!led order was not really the order of the Board but that it was made at the 2nd respondent's dictate and that though it was issued formally by the Board it was in truth that of the 2nd respondent who manoeuvred to have it passed.\n\nThe question then is: What were the materials placed hy the appellants in support of this case which the respondents had to answer'? According to para 27 of the petition. the proximate cause for the issuance of the order was the discussion that the two friends of the 2nd respondent had with him, the petition which they filed at his instance and the direction which the 2nd respondent gave to respondent No. 7.\n\nBut these allegations are not grounded on any knowledge but only on \"reasons to believe\". Even for their reasons to believe, the appellants do not disclose any information on which they were founded. No particulars as to the alleged discussion with the 2nd respondent. or of the petition which the said two friends were said to have made, such as its contents, its time or to which authority it was made are forthcoming. It is true that in a case of this kind it would be difficult for a petitioner to have personal knowledge in regard to an avcrment of ma/a {ides, but then where such knowledge is wanting he has to disclose his source of information so that the other side gets a fair chance to verify it and make an effecrve answer. In such a situation, this Court had to observe in the State of Bombay v. P11r11s/1011am Naik(') that as sEpshod verifications of affidavits might lead to their rejection, they should be modelled tm the lines of O.XfX r. 3 of the Civil Procedure Code and that where an averment is not based on personal knowledge, the source of information should be clearly deposed. In making these observations this Court endorsed the remarks as regards verification made in the Calcutto decision in Padmabati Dasi v. Dhar 1.'l. Apart from this consideration it is clear that in the absence of tangib1e materials, the only nnswer which the respondents could array against the allegntion as to ma/a (ides could be one of general denial. The affidavits of the respondents however do not rest with a mere denial. They contain positive averments to the effect that the impugned order was passed in exercise of the power conferred on th!'\n\n(') [ 1952] S.C.Il. 674,\n\n(1) l.L.R. 37 Cal. 259.\n\n. J\n\nBARIUM CHEMICALS\n\n~). COMP. LA\\Y BD. (Shelat, J.) 353\n\nBoard, that the order was independently made by the Chairman on materials before him and that the 2nd respondent had nothing to do with the making of it. Putting it in a somewhat different way, what was it that the respondents were expected to explain in their answer? The answer which they were expected to make was against the allegation that the order was not independently made by the Board, that it was made at the instance of the 2nd respondent in consequence of the discussions he had with his said two friends who were made to file a petition and that the Board had mechanically issued it in obedience to the 2nd respondent's behest without applying its mind to any materials before it. It is obvious that in the absence of any particulars about the alleged discussion or the alleged petition or the alleged direction given by the 2nd respondent or the sources of information on which the appellants had reasons to believe these things, the only answer which the respondents could give was a general answer that these allegations were not true and that the order was independently made by the Board and as recited therein it was passed by the Board as in its opinion the conditions of s. 237(b) were existent.\n\nCan the High Court in these circumstances be said to have failed to exercise its discretion when it refused to take evidence in addition to the affidavit evidence by permitting the appellants to cross-examine the 2nd respondent and the Chairman of the Board and to compel production of documents which they desired to have produced? In a petition under Art. 226, there is undoubtedly ample power in the High Court to order attendance of a deponent in court for being cross-examined. Where it is not possible for the Court to arrive at a definite conclusion on account of there being affidavits on either side containing allegations and counter-allegations, it would not only be desirable but in the interest of justice the duty also of the court to summon a deponent for cross-examination in order to arrive at the truth. As observed in A.P.S.R.T.\n\nCorporation v. Satyanarayan Transports('), if the evidence led by the parties is tested by cross-examination it becomes easier to determine where the truth lies. In B. Venkatarathnam v. Registrar of Co-operative Societies, A ndhra Pradesh(') where allegations similar to the ones made in the present case were made, this Court recognised the right of a party to apply for cross-examination. But the position in the present case is not as it was in that case. The appellants no doubt applied for cross-examination and production of certain documents, but the High Court felt that this was not a case where it should exercise its discretion as the cross-examination of the two deponents would not serve any useful purpose. The view of the High Court was that even if the two deponents were to be called they could in the circumstances of the case only report their denials in the affidavits in answer to the allegations made in the petition and the affidavit in rejoinder and therefore such crossexamination would not take the court any further than the affidavits. In view of the fact that the appellants were not in a position (') A.I.R. 1965 S.C:l303 atp. 1307. (') C.A. No. 321of1965 decided on 6.5.1965.\n\n354 f-:l.PHFME CO\\IRT REPORTS [l96G] Sl'l'P.\n\n~.C.I'.\n\nlo give particulars of the allegations made by them, the gcneraliiy A of those allcgalions and particularly of the allegation that the impugned order was passed at the behe.<t of the 2nd respondent, the only recourse left lo the Chairman of the Board would have been to repeal in equally general terms what he had already stated in his affid:1\\'it, l'i;: .. that it was his own order made independently of the 2nd respondent and that it was founded on the opinion B formed by him on the materials before him. Even at the stage when the appellants made the <1pplication for cross-examination they d; d not state that they had any additional materials to face the deponents. In these circumstances it is not possible lo say that the High Court erroneously exercised its discretion. Nor is it possible to say that its conclusion, that whatever motives and animosity the 2nd respondent might ha\\e had towards the appellants, the appellants C had failed to establish that the order was not independently made by the Chairman or that it was an order made at the instance or instigation of the second respondent, was erroneous. This is particularly so. as, except the allegation that the Chairman and the 7th respondent acted as the tools of the 2nd respondent. no ma/a ficle1 or evil intent have been urged against them. It may be that certain circumstances such as the timing of the order, might create suspi- D cion, perhaps a strong suspic'.on but it is trite to say that suspicion, however grave, cannot substitute evidence. It is true as observed in Pan11alal Bi11jraj v. Union of lnclia(') that in a case where want of bona /ides in the authority passing the impugned order is alleged, the burden of proof, though on the party alleging it. is to the extent of its being shown as reasonably probable. But the allegation made in the present case is that the impugned order was E in fact the order of the 2nd respondent either because he directed the 7th respondent to make it or because he agreed to it or that it was passed by the Authority not on his own but at the behest of the second respondent. In the present case the court is not directly concerned with the alleged malice the 2nd respondent might have against the appellants. The Board is a statutory authority. has an independent existence and the absence of bo11a fides with which the F Court in such a ca'c is concerned is that of the Board and not of the 2nd respondent. As observed in Pratap Shzgh v. State of Pu11jabl') <in allegation as to bad faith or indirect motive or purpose cannot be held established except on clear proof thereof. In the absence of any materials re1ating to the ma/a fides of the Board. and in particular, of materials to show that the order was passed at the dictate of the 2nd respondent, this part of the appellants' case G must fail.\n\nBut the contention which calls for a more 'erious considera tion is that the circumstances disclosed in para 14 of the Chairman's affidavit and on which he is said to have formed his opinion were circumstances extraneous to s. 237(bl and hence the order was H\n\nl'l\n\n(1957) s.c.n. 23.1 nt p. 2w. t'l c100-1) • s.c.n. 733.\n\n. ...(\n\n! w\n\n;.:\n\nI I\n\nBARIUM CIIE~IICALS v. COMP. LA'V BD. (Shelat J.) 355\n\nA ultra vires the section. The contention was a two-fold one, (!) that though under cl. (b) the opinion of the authority is subjective there must exist circumstances set out in the clause which are conditions precedent for the formation of the opinion, and (2) that assuming that this is not so, since the Chairman has disclosed the circumstances on which he forms the opinion, the court can examine them B and see if they are relevant for an opinion as to fraud or an intent to defraud. Reliance was placed on paras 14 and 16 of the Chairman's affidavit to show that the circumstances there stated show that in passing the crder, matters totally extraneous to the section were taken into account rendering the order ultra vires cl. (b) of s. 237. The other affidavits do not matter much as they only repeat what the Chairman has stated in his affidavit. The construction of C\n\ncl. (b) suggested by Mr. Setalvad was that the clause requires two things, (]) the opinion of the Central Government, in the present case of the Board, and (2) the existence of circumstances suggesting that the company's business was being conducted as laid down in sub-cl. (l) or that the persons mentioned in sub-cl. (ii) were guilty of fraud, misfeasance or misconduct towards the company or any of its members. According to this construction, D though the opinion is subjective the existence of circumstances set out in cl. (b) is a condition precedent to the formation of such opinion and therefore even if the impugned order were to contain a recital of the existence of those circumstances the court can go behind that recital and determine whether they did in fact exist.\n\nThe learned Attorney-General opposed this construction and argued that the clause was incapable of such dichotomy, that not only the E opinion was subjective but that the entire clause was made dependent on such opinion, for, what the clause lays down is that the authority must come to an opinion on materials before it that there exisl circumstances suggesting fraud, or intend to defraud etc.\n\nSuch dichotomy, according to him, is impossible and not reasonable because it cannot be that the authority must first ascertain by holding an inquiry that there are circumstances suggesting fraud or F intent to defraud etc. and then form a subjective opinion that those circumstances are such as to suggest those very things. He emphasised that the words \"opinion\" and \"suggesting\" were clear indications that the entire function was subjective, that the opinion which the authority has to form is that circumstances suggesting what is set ont in sub-els. (i) and (ii) exist and therefore the existence of those circumstances is by itself a matter of subjective G opinion. The legislature having entrusted that function to the authority, the Court cannot go behind its opinion and ascertain whether the relevant circumstances existed or not.\n\nThe question is which of the two constructions is correct? In Emperor v. Sibnath Banerjee(') one of the questions which arose was with regard to the interpretation of the words \"the Central\n\n{')\n\n(1944) ~'.C.R. I.\n\nSL'PR>;~IE COl'RT RV.PORTS\n\n(J966] SUPP. S.C.R.\n\nGovernment or the Provincial Government, if it is satisfied with A respect to a particular person\" in r. 26 of the Defence of India Rules, 1939. What was questioned there was the correctness of the recital in the detention order that the Governor was satisfied that with a view to preveming the detenu from acting in a certain manner certain action was necessary. It was held that though the Court could not be invited to investigate the sufficiency of the B material or the reasonableness of the grounds on which the Governor was satisfied, if the contention was that the Governor never applied his mind and therefore he could not have been satisfied. the court could enter into that question, the ingredient of satisfaction being a condition precedent to the exercise of power notwithstanding the satisfaction being subjective and there being a recital as to the satisfaction in the order. Referring to Liversidge v. Ander- C son(') and Greene v. Secretary of State(') it was observed:\n\n\"If the ground of challenge against the orders thus sought to be impugned had been that the cases had never been p'aced before the Secretary of State at all, so that he never had any opportunity of exercising his mind with respect to them. we have not the slightest doubt that this would have been a proper ground for challenge in a court of law.\"\n\nAgain at p. 42, the observations are: -\n\n\"The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate. If, however, in any case a detcnu can produce admissible evidence to that effect, in my judgment, the mere existence of the recital in the order cannot prevent the court considering such evidence and if it thinks fit. coming to a conclusion that the recital is inaccurate.\"\n\nThese observations were r,1adc on the footing that though the satis- F faction was subjective. it was a condition precedent to the exercise of power and therefore the order was open to a challenge that it was not in conformity with the power. In appeal this view was endorsed by the Privy Council King Emperor v.\n\nSibi:athn. In Machinder v. The King(') the Federal Court dealing with similar words in s. 2 of the Central Provinces and Berar Public Safety Act. 1948 again held that the Court can examine the grounds disclosed c; by the government hi sec if they are relevant to the object which the legislature had in view. vi~ .. the prevention of acts prejudicial to public safety and tranquillity, for. satisfaction in this connection must be grounded on materials which arc of rationally probative value. In 'this case. the statute no doubt required that the grounds should be disclosed but that makes no difference to the principle 'fl. ----- ------\n\n(') [1942] A.C. 206. l'l 72 1.A. 241, 268.\n\n\\1)\n\n[1942] A.C. !?34.\n\n(') [195U] F.C.R. 227,\n\n'-\n\nBARIUM CHEMICALS V. COMP. LAW BD. (Sheklt, J.) 357\n\nthat though the satisfaction was exclusively of the executive authority, it was nonethe:ss, a condition precedent to the exercise of the power. In Atmaram Vaidya's case('), this court while dealing with s. 3 of the Preventive Detention Act, 1950 observed that though the satisfaction necessary thereunder was that of the Central or the State Government and the question of satisfaction could not be challenged except on the ground of mala fides, the grounds on which it was founded must have a rational connection with the objects which were to be prevented from being attained. At p. 176 it is stated : -\n\n\"If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court.\" This v:ew was again emphasised in Shibban Lal Saksena's case(') where it was said that the power of detention being entirely depen- D dent on the satisfaction of the appropriate authority, the question of sufficiency of the grounds on which such satisfaction is based cannot be gone into provided they have a rational probative value and are not extraneous to the scope and pvrpose of the statute.\n\nThis principle is not exclusively applicable to cases under such measures as the Defence of India Act or the Preventive Detention Act and has been applied also in the case of other statutes.\n\nE Thus in the State of Bombay v. K. P. Krishnan(') while dealing with the discretion of the State Government to make or refuse to ; nake a reference under s. 10(1) of the Industrial Disputes Act,\n\n1947. Gajendragadkar, J. (as he then was) Epoke for the court in these words: -\n\n\"The order passed by the Government under s. l2(5) may be an administrative order and the reasons recorded by it may not be justiciable in the sense that their propriety, adequacy or satisfactory character may not be open to judicial scrutiny; . nevertheless if the court is satisfied that the reasons given by the Government for refusing to make a reference are extraneous and not germane, then the court can issue and would be justified in issuing a writ of mandamas even in respect of such an administrative order.\" In Dr. A kshaibar Lal v. Vice-Chancellor(') the question was with reference to termination of services of some of its employees by the University. The University in exercise of its power to terminate the services of its employees under Ordinance No. 6 passed the impugned order notwithstanding its having already taken action under Statute 30 under which the cases of the appellant and others\n\n( 1) [1951] S.C.R. Hi7.\n\n(') [1961] 1 S.C.R. 227,\n\n(') [1054] S.C.R. 418.\n\n\n[1966] oUPI'. S.C.lt,\n\nwere referred to the Solicitor-General who made his report to the A Reviewing Committee on his finding that there was a prima facie case. The contention was that the resolution of the Univci,, ity lacked ho11a /ides and was therefore invalid. The Cnivcrsity cuntende<l that its powers were cumulative and that it could resort to either of the two remedies open to it. The action adopted by the\n\nUniversity was executive. Yet, this Court, held that though the B University possessed both the powers and could exercise one or the other of them, the action as held in the State of Kera/a v. G. M.\n\nFrancis & Co.('1 could still be challenged on the ground of its being 11/tra l'ire1. Hidayatullah J. said that proof of alien or irrelevant motive is only an example of the ultra l'ir,,.1 character of the action.\n\nThe Cniversity having adopted action under Statute 30 it was not possible to undo cl'erything and rely upon other powers which were C not available in the special circumstances which led to action under the statute and that though the University had the discretion to adopt either of the tl'•O courses, the discretion could not be read m the abstract but had to be read within the four corners of Statute 30 and not outsi, le it. In this sense action on matters extraneous to the sl<1 lute conferring power is a specie of the vice of ultra vires. These two arc sometimes inter-related and slide into D each other. When a power is exercised for a purpose or with an intention beyonJ the scope of or is not justified by the instrument creating it, it would be a case of fraud on power, though no corrupt motive or bargain is imputed. In this sense. if it could be shown that an auihority exercising power has taken into account, it may even be bona fide an<l with the best of intentions, as a relevant factor something which it could not properly take into account in l!l deciding whether or not to exercise the power or the manner or extent to which it should be exercised. the exercise of the power woulJ be bad. Sec Pratap Sin!ih v. State of Ptmiab('). Thus apart from an authority acting in bad faith or from corrupt motives it may also be possible to 'how that \"an act of the public body. though performed in good faith and without any taint of corruption, was so clearly founded on alien and irrelevant grounds as to F be outside the aulhority conferred upon that body and therefore inoperative. It is difficult to suggest any act which would be ultra vires under this head thou; h performed bona fide,\" per Warrington L.J. in Short v. P<)olc CorpnrationC1. Sirnilar obscrv;;1tions are also to b~ found in Rameshwar v. District Magistrate('), a case under the Preventive Detention Act, 1950, where this Court held that though the satisfaction of the relevant authority was subjective. a detenu would be entitled to challenge the validity of his detention on the ground ,., f maia /ides and in support of his pica urge rhat along with other facts which show ma/a fie/es the court should also consider his grievance that the grounds served en him cannot po'<sihly or rationally support the other. The challenge would be that the B order was beyond the scope of the power as its exercise was on\n\n( 1) fHt61) I s.c.r.. 2i.\n\n( 31 [IU26] Ch. 66, 20.\n\n(') [IH{il] 4 ~.C.R. 73.1. (1) A.I.It. 1964 8.C. 334, [l\\161} 4 8.C.l~.021.\n\nllARlTTM CHEMICALS V. COMP. LAW DD. (She/at, J.) 359\n\ngrounds irrelevant to the purpose and intention of the power. In Estate and Trust Agencies Ltd. v. Singapore Improvement Trust(') a declaration made by the Improvement Trust under s. 57 of the Singapore Improvement Ordinance 1927 that the appellants' property was in an insanitary condition and therefore liable to be demolished was challenged. The Privy Council set aside the declaration on two grounds; (1) that though it was made in exercise of an administrative function and in good faith, the power was limited by the terms of the said Ordinance and therefore the declaration was liable to a challenge if the authority stepped beyond those terms and (2) that the ground on which it was made was other than the one set out in the Ordinance. In Ross Clunis v. Papadopou!los(') the challenge was to an order of collective fine passed under Regulation 3 of the Cyprus Emergency Powers (Collective Punishment) Regulations, 1955 which provided that if an offence was committed within any area of the colony and the Commissioner \"has reason to believe\" that all or any of the inhabitants of that area failed to take reasonable steps to prevent it to render assistance to discover the offender or offenders it would be lawful for the Commissioner with the approval of the Governor to levy a collective fine after holding an inquiry in such manner as he thinks proper subject to satisfying himself that the inhabitants of the area had been given an adequate opportunity of understanding the subject-matter of the inquiry and making representations thereon.\n\nThe contention was that the only duty cast on the Commissioner was to satisfy himself of the facts set out in the Regulation, that the test was a subjective one and that the statement as to that satisfaction in his affidavit was a complete answer to the contention of the respondents. Rejecting the contention the Privy Council observed: -\n\n\"Their Lordships feel the force of the argument, but they think if it could be shown that there were no grounds upon which the Commissioner could be so satisfied, a F court might infer either that he did not honestly form that view or that in forming it he could not have applied his mind to the relevant facts.\"\n\nThough an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala {ides, dishonesty or G corrupt purpose.\n\nEven if it is passed in good faith and with the\n\n-~ best of intention to further the purpose of the legislation which confers the power. since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for H passing it or if the grounds are such that no one can reasonably\n\n(!) [ 1937 J A.O. 898.\n\n(2) r 1958] I. w. &. R. 5rn.\n\nLIS5SCI-25\n\n360 ~UPRl<ME CCURT REPORTS\n\n(1966 SUPP. 8.C.11.\n\narrive at the opinion or satisfaction requisite under the legislation.\n\nA In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it. it did not apply its mind to the relevant facts.\n\nBearing in mind these principles the provisions of s. 237(b) may now be examined. The clause empowers the Central Govern- B ment and by reason of delegation of its powers the Board to ap point inspectors to investigate the affairs of the company. if \"in the opinion of the Central Government\" (now the Board) there arc circumstances \"suggesting\" what is stated in the three subclauses.\n\nThe power is executive and the opinion requisite before an order can be made is of the Central Government or the Board as the case may be and not of a court. Therefore the court cannot sub- C stitute its own opinion for the opinion of the Authority. But the aucstion is. whether the entire action under the section is subjective?\n\nIn Nakkuda Ali v. Jayaralne(') the Privy Council had to construe the words \"where the controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a D dealer\" occurring in Regulation 62 of the Defence (Control of Textiles) Regulations, 1945. Lord Radcliffe who spoke for the Board first considered the construction given to similar words in l.iversidge v. Anderson(') and said:-\n\n\"Their Lordships do not adopt a similar construction of the words in Reg. 62 which are now before them. Indeed, it would be a very unfortunate thing if the decision in Liversidge's case came to be regarded as laying down any general rule as to the construction of such phrases when they appear in statutory enactments. It is an authority for the proposition that the words \"if AB. has reaonablc cause to believe\" are capable of meaning. \"If AB. honestlv thinks that he has reasonable cause to\n\nbelieve\". and that in the context and attendant circum stances of Defence Regulations 188. they did in fact\n\nmean just that.\"\n\nHaving confined that construction to that case only. he proceeded I<) observe: -\n\n\"After all. words such as these are commonly found when a legislature or law making authority confers powers on a minister or official. However read. they must be intended to serve in some sense as a condition limiting the exercise of an otherwise arbitrary power.\n\nBut if the question whether the condition has been satisfied is to be conclusively decided by the man who wields the power the value of the intended restraint is in effect nothinj?.\n\n1!1 [ 191H] A.C. 66.\n\n(2) [ 19{2] A.O. 206.\n\n• •\n\n., -\n\n~ • A\n\nTBARIUM CHEMICALS V. COMI'. LAW IlD. (She/at, J.) 361\n\nNo doubt he must not exercise the power in bad faith; but the field in which this kind of question arises is such that the reservation for the case of bad faith is hardly more than a formality.\" The Privy Council held that the aforesaid words in Reg. 62 imposed a condition that there must in fact exist such reasonable grounds known to the controller before he could validly exercise the power of cancellation. Therefore, though the belief of the Controller that the dealer was unfit was subjective, existence of reasonable grounds on which the belief could be founded was objective and a limitation on his power.\n\nIn Ridge v. Baldwin(') Lord Reid suggested the same construction of similar words occurring now-a-days in several statutes. Speaking about the rules of natural justice not having been abandoned as a sacrifice which war conditions required, he observed:\n\n\"And I would draw the same conclusion from another fact. In many regulations there was set out an alternative safeguard more practicable in war time-the objective test that the officer must have reasonable cause to believe whatever was the crucial matter. (I leave out of account the very peculiar decision of this House in Liversidge v. Anderson).\" The words \"reasonable grounds to believe\" were considered thus to be a restraint on administrative power just as compliance of the rules of natural justice in a quasi-judicial power which otherwise would render the power arbitrary. A recent decision in Vellukunnel v. The Reserve Bank of India(') is in point in this connection.\n\nSection 38(3)(b)(iii) of the Banking Companies Act, 1949 was assailed there as being discriminatory and an unreasonable restriction. The impugned clause provided that the High Court shall order the winding up of a banking company on the Reserve Bank making an application for winding up \"if in the opinion of the Reserve Bank ......... (iii) the continuance of the banking company is prejudicial to the interests of the depositors.\" The learned Attorney-General rightly pointed out that the question there was not so much on the meaning of the words \"in the opinion of\" as whether a law which requires the High Court to order winding up because the Reserve Bank is of that opinion is constitutional. But it is not without significance that the divergence of opinion in this Court was that according to the minority opinion the vice of the impugned provision lay in the power vested in the Reserve Bank to apply to the High Court for a winding up order exercisable solely on its subjective satisfaction while according to the majority opinion the power did not rest solely on the subjective satisfaction and that what the impugned clause did was to leave the determination of an issue to an expert body, viz .. whether the continuance\n\n(1) [ 1964] A.O. 46, 73.\n\nM/S5SCI-25 (a)\n\n(2) [ 1962] Supp. 3 S.C. R 632.\n\nSUPRE'.\\O: COUP.T P.EP'JP.T<; (J96n) SUPP. S.C.F.\n\nof the Banking company in question was detrimental to the interests A of the depositors.\n\nIn support of this view llidayatullah J. speaking for the majority made the following significant observation: -\n\n\"It is enough to say that the Reserve Bank in its dealings with banking companies docs not act on suspicion but on proved facts.\" B\n\nAnd again at p. 672 he observed: -\n\n\"But this seems certain that the action (winding upl would not be taken up without scrutinising all the evidence and checking and re-checking all the findings.\"\n\nDistinguishing a case arising from a statute like the Banking Companies Act from cases of detention and associations declared unlawful. he emphasised the fact that \"the factual background will not be one of suspicion. and action will be based on concrete facts.\" The 1.1ajority view thus vindicated the validity of the provision on the ground that under the power conferred thereby, the Reserve Bank had to determine. albeit instead of the court, the issue whether the continuance of a particular banking company was detrimental to the depositors' interests.\n\nThough the words used were \"in the opinion of', the opinion, though exclusively of the Reserve Bank, was dependent on the determination by it of the aforesaid issue.\n\nTherefore, the words. \"reason to believe\" or \"in the opinion of\" do not always lead to the construction that the process or entertaining \"reason to believe\" or \"the opinion\" is an altogether subjective process not lending itself even to a limited scrutiny by the court that such \"a reason to believe\" or \"opinion\" was not formed on relevant facts or within the limits or as Lord RedclifTe and Lord Reid called the restraints of the statute as an alternative safeguard to rules of natural justice where the function is administrative.\n\nThe object of ~- 237 is to safeguard the interests of those dealing with a company by providing for an investigation where the management is so conducted as to jeopardize those interests or where a company is floated for a fraudulent or an unlawful object.\n\nOausc (a) docs not create any difficulty as investigation is instituted either at the wishes of the company itself expressed through a special resolution or through an order of the court where a judicial process intervenes.\n\nClause (b), on the other hand, !raves directing an ; nvcstigation to the subjective opinion of the rovernment or the Board.\n\nSince the legislature enacted s. 637 (i)(~) it knew that government would entrust to the Board its pov1er under s. 237(bl.\n\nCould the legislature have left without any rcstrnints or limitations the entire power of ordering an investigation to the subjective decision of the Government or the Board? There is no doubt that the formation of opinion by the Central Government is a purely subjective process. There can also be no doubt that since\n\nl1AR!UM CiillMIOAT, B '/). COMP. LAW BD. (She/at, J.) 363\n\nthe legislature has provided for the opinion of the government and not of the court such an opinion is not subject to a challenge on the ground of propriety, reasonableness or sufficiency. But the Authority is required to arrive at such an opinion from circumstances suggesting what is set out in sub-clauses (i), (ii) or (iii). If these circumstances were not to exist, can the government still say that in its opinion they exist or can the Government say the same thing where the circumstances relevant to the clause do not exist?\n\nThe legislature no doubt has used the expression \"circumstances suggesting\". But that expression means that the circumstances need not be such as would conclusively establish an intent to defraud or a fraudulent or illegal purpose. The proof of such an intent or purpose is still to be adduced through an investigation.\n\nBut the expression \"circumstances suggesting\" cannot support the construction that even the existence of circumstances is a matter of subjective opinion.\n\nThat expression points out that there must exist circumstances from which the Authority forms an opinion that they are suggestive of the crucial matters set out in the three sub-clauses. It is hard to contemplate that the legislature could have left to the subjective process both the formation of opinion and also the existence of circumstances on which it is to be founded. It is also not reasonable to say that the clause permitted the Authority to say that it has formed the opinion on circumstances which in its opinion exist and which in its opinion suggest an intent to defraud.or a fraudulent or unlawful purpose. It is equally unreasonable to think that the legislature could have abandoned even the small safeguard of requiring the opinion to be founded on existent circumstances which suggest the things for which an investigation can be ordered and left the opinion and even the existence of circumstances from which it is to be formed to a subjective process.\n\nThis analysis finds support in Gower's Modern Company Law (2nd Ed.) p. 547 where the learned author, while dealing with s. !65(b) of the English Act observes that \"the Board of Trade will always exercise its discretionary power in the light of specified grounds for an appointment on their own motion\" and that \"they may be trusted not to appoint unless the circumstances warrant it but they will test the need on the basis of public and commercial morality.\" There must therefore exist circumstances which in the opinion of the Authority suggest what has been set out in subclauses (i), (ii) or (iii). If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challengeablc on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute.\n\nH Even assuming that the entire cl. (b) is subjective and that the clause does not necessitate disclosure of circumstances, the circumstances have in the present case been disclosed in the affidavits ot\n\nSUP&F.ME COURT RRl'OBTS (1966] SUPP. SC ll.\n\nthe Chairman and the other officials.\n\nOnce they are disclosed, the A Court can consider whether they are relevant circwnstances from which the Board could have formed the opinion that they were iuggestive of the things set out in cl. (b).\n\nParagraph 14 of the Chainnan's affidavit sets out the following:-\n\n\"(i) there had been delay, bungling and faulty planning of this project, re, ulting in double expenditure for which the collaborators, had put the responsibility upon the Managing Director, Petitioner No. 2;\n\n(ii) since its floatation the company has been continuously showing losses and nearly I/ 3rd of its share capital has been wiped off;\n\n(iii) that the shares of the company which to start with were at a premium were being quoted on the stock exchange at half their face value; and\n\n(iv) some eminent persons who had initially accepted seats on the Board of directors of the company had subsequently severed their connections with it due to ditkrences with Petitioner No. 2 on account of the manner in which the affairs of the company were being conducted.\" No doubt the words \"inter alia\" occur in this paragraph but that expression means no more than that those which are set out were among others.\n\nBut those others would be of the same category, for if they were of other category they would naturally be stated.\n\nThe deponent would not be content by using the expression \"inter E alia\" unless he meant that the things contained in that phrase were of the same type as those expressly set out.\n\nParagraph 16 is in reply to para. 21 of the Petition which alleges that there was no material from which the Board could form the opinion and that no such opinion was in fact formed. In that para the Chairman has stated as follows: -\n\n\"With reference to paragraph 21 of the Petition I F have already stated above (which means para 14) that there was ample material before the Board on which it could and had formed the opinion that there were circumstances suggesting\" etc ..\n\nThe \"ample material\" referred to in this para is obviously the material from which the circumstances stated in para 14 of his G affidavit were deduced.\n\nBut the learned Attorney-General argued that para 14 was an answer to paras I to 19 of the petition where the petitioners claimed the soundness of the company and secondly that if para 14 were to be construed as disclosing the circumstances, it must be read along with para 16 and that if so read they were capable of showing that there were materials suggesting intent to H defraud, misfeasance, misconduct etc.\n\nParagraph 14 no doubt states that it is in reply to paras I to 19 of the Petition.\n\nIn this\n\n,..\n\nItI\n\n•;,.\n\nI I l\n\n. ~\n\nF •\n\nBA!UtlM CHF.MIOALS IJ. COMP. LAW BD. (Shela!, J.) 365\n\npara, the facts stated in paras I to 19 are admitted as .being sb stantially correct except as regards the fact that while seekmg approval of the government to his appointment as the Managing Director, the 2nd appellant had stated that there was no formal agreement between him and the company. The para then sets out the facts that the company held the licence, that it had made an agreement with the British Company but that the Chairman had no information with regard to the other facts stated in paras 1 to 19 of the petition. There the reply to paras 1 to 19 of the petition ends. Then follows the statement which is an independent averment, viz.,\n\n\"However from the memoranda received by the Board referred to in paragraph 5 and other examination it appeared inter alia that.\"\n\nThen follows the four circumstances already set out earlier. Paragraph 16, though a reply to para 21 of the petition, refers back to para 14 and relies on the statements made therein for an answer to the allegation in para 21 of the petition that there were no materials and therefore no opinion as required by s. 237(b) was ever formed.\n\nFrom the language and scheme of paras 14 and 16 it is thus impossible to escape the conclusion that between them they disclose and were meant to disclose all the materials from which the Board formed the opinion. In para 8 of his affidavit, the Chairman no doubt refers to other materials which he says he was agreeable to disclose to the Court though not to the appellants.\n\nBut those materials, assuming they were before him, cannot help, for they would not disclose any circumstances other than those formulated in para 14. This is clear from the fact that as stated there, those circumstances were deduced from the said memoranda and 'other examination' meaning the examination of all the materails before him. The question is: are the materials formulated in para. 14 circumstances suggestive of the things set out in cl. (b)?\n\nThe learned Attorney-General contended that on the assumption that para 14 disclosed the circumstances, they would suggest an intent to defraud, fraudulent management, misfeasance and misconduct; and that even if delay, bungling and faulty planning of the project might not suggest the relevant intent or purpose, they together with the facts that one-third of the subscribed share capital was wiped off, the shares of the company being quoted at half of their face value and of some eminent persons having severed their connection with the company would suggest that all was not well with the company or its management and that its management was conducted with the intent to defraud. He argued that in any event they would suggest that those responsible for it were guilty of at least misfeasance or misconduct.\n\nThe expression \"with intent to defraud\" connotes an intention to deprive by deceit. Construing s. 165 of the Companies Act,\n\n366 St:l'Rt:ME C-OUR\"f_.RHO.RTS [1966] surr. R.c.n.\n\n1862, Buckley J.\n\nIn re London and Globe Fina11ce Corporation A Ltd.,(') distinguished deception and fraud as follows: -\n\n\"To deceive is I apprehend, to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false.\n\nTo defraud is to deprive by deceit: it is by decCJt to induce a man to act to his injury.\n\nMore tersely it may be put, that to deceive is by falsehood to induce a state of mind to defraud is by deceit to induce a course of action.\"'\n\nLord Esher also said much the same thing in le Licvre v.\n\nGould(').\n\n\"A charge of fraud is such a terrible thing lo bring against a man that it cannot be maintained in any court unless it is shown that he had a wicked mind. That is the effect of Derry vs. Peck 04 App. Cases 337>. What is meant by a wicked mind'? If a man tells a wilful falsehood, with the intention that it shall be acted upon by the person to whom he tells it, his mind is plainly wicked. and he must be said to be acting fraudulently.\n\nAgain, <l man must also be said to have a fraudulent mind if he rccllessly makes a statement intending it to be acted upon, and not caring whether it is true br false. I do not hesitate to say that a man who thus acts must have a wicked mind.\n\nBut negligence however great, does not of itself constitute fraud.\"\n\nIn Re William C. Leitch Bros.(') Maugham J. held.\n\n\"If a company continues to carry on business and to incur debts at a time when there is to the knowledge of the director no reasonable prospect of the creditor ever receiving payment or those debts, it is in general a proper inference that the company is carrying on business with intent to defr.md.\" There is no such suggestion in the present case.\n\nThe same learned Judge in Re Patrick a11d Lyon(') observed that the tcnns \"defraud\" and \"fraudulent purpose\" connote actual dishonesty involving, according to current notions of fair trading amongst\n\nommcrcial men. real moral blame.\" However much the Court may disapprove of a perrnnal conduct it must consider whether he has been guilty of dishonesty. Misfeasance results from an act or conduct in the nature of a breach of trust or an act resulting in loss to the company.\n\nMisconduct of promoters or directors as understood in the Companies Act means not misconduct of every kind but such as has produced pecuniary loss to the company by misapplication of its assets or other act. (cf. Re Ki11gston Cotton Mill Co. (No. 2)(') and Cm•endish-Bc11tinck v. Fc1111.(\"). ---------·- -· - --- (!) ( 1003] I Cb. 728, 73\".\n\n(2) [ 189311 Q. B. 49. (:I) [ 11132) 2 Ch. 71.\n\n(4) [ 1033] Cb. 786.\n\n(6) [ 1896 J 2 Ch. 279.\n\n(6) [ 1887 1 12 Ai'P Ca.,,062.\n\n·~\n\nA '\n\nl!ARIL\\I CllKilllCAtS ~. COI, iP. LAW BD. (8!.e/, at, J,) 367\n\nAre the allegations set out in para 14 of the Chairman's affidavit capable of suggesting an intent to defraud or a fraudulent or unlawful purpose either in the formation or conduct of the company or misfeasance or misconduct towards the company or its members? Delay, bungling and fraulty planning of the project entailing double expenditure, continuous losses resulting in 1I3rd of the share capital being wiped out, shares being quoted at half their face value and severance of their connection by some eminent persons cannot by themselves suggest an intent to defraud or fradulent management. As regards misfeasance or misconduct, it is not suggested in any of the affidavits, though the Board had before it the memoranda of the four directors, that the circumstances set out in paragraph 14 of the Chairman's affidavit had arisen as a result of any traud or dishonesty on the part of the second appellant or that it was his act which had caused pecuniary losses to the company.\n\nMere bungling or faulty pianning cannot constitute either misfeasance or misconduct. But assuming that these circumstances were to be treated as suggestive of misfeasance and/ or misconduct, the impugned order is an integral and indivisible order and the investigation ordered thereunder is not and by the very nature of it cannot be confined to finding out only misfeasance and/or misconduct. In this view, the order must be held as being beyond the scope of clause (b) and cannot be sustained.\n\nThe next challenge is that the order contemplated by section 237(b) being the order of the Central Government or the Board it must be that of the Board and not of its Chairman. The contention was that the powers and functions under section 237 having been delegated to the Board and not to my individual member, the Board alone could pass the order, that the Chairman had no competence to pass it and that Rule 3 and the said order of the Chairman to the extent that it purported to distribute the work individually to the Chairman and the other member were ultra vires section lOE(l). The .learned Attorney-General, on the other hand, argued that section !OE not only empowered the government to constitute the Board but also simultaneously authorised it to prescribe its procedure under sub-section 5.\n\nWhat Rule 3 did was to enable the Chairman to rationally divide amongst ihe Board its work under different sections of the Act.\n\nUnder such division, whether a particular work is done by one member or jointly by the Board, it is the Board which does that work and the orders so passed are by and of the Board.\n\nSuch distribution is nothing but procedure because procedure must involve the manner in which the Board would work and is not contrary either to s. 637(1) (a) which empowers the Government to delegate its power to the Board or to s. !OE. While delegating its power the government may say that the Board shall exercise its delegated power by one of them or by the Board as a whole, but notwithstanding such distribution, it is the Board which acts.\n\nAs an analogy he relied on s. I OA and s. I OB\n\n368 Sl'PREMl l't.llRf REPORTS [1966] SUPP. s.c.l!.\n\nunder which the Company Tribunal is constituted and which enable A its Chairman to form Benches which discharge the functions entrusted to the Tribunal. to >. 6 of the Code of Criminal Procedure and to Art. 145 and the orders passed by this Court delegating certain powers to the Registrar to show that procedure might differ from Act to Act according to the legislative understanding of the word procedure. Therefore, he argued, the expression \"proce- B durc\" must not be construed in any inflexible sense.\n\nWhen a particular procedure permits allocation of work for the smooth discharge or exercise of a function or power, it is not tantamount to subdelegation but is simply distribution.\n\nHowever wide a connotation of the word \"procedure\" one may accept there is a sharp cleavage between power and procedure. Sec- C tion 1 OE which provides for the constitution of the Board nowhere provides for the splitting up of the Board into benches as is expressly done in the case of the Tribunal under s. 1 OB nor docs it provide for the distribution of work entrusted to the Board. lt is true that sub-s. 5 confers power on the government to prescribe procedure.\n\nBut that procedure is of the Board. If the legislature intended that the Board should act by dividing its work amongst D the members. there was no obstacle in its way to provide for benches as is done under s. IOB.\n\nSection 637(J)(a) empowers the government to delegate its power to the Board, no doubt, under such conditions. restrictions, or limitations as may be specified in the not.ification delegating such power.\n\nBut the notification by which the government delegated its power contains no conditions, limitations or restrictions.\n\nA provision enabling the Chairman to dis- E tribute the powers and functions delegated to the Board is not a provision prescribing conditions. limitations or restrictions. Section 637(1)(a) which authorises the government to delegate its power clearly lays down that such delegation is to be made to the Board and no one else.\n\nUnder sub-section 2 of section 637 certain J:'Owers and functions therein set out cannot be delegated to ; my other authority. The section thus contains both a positive and a F negative mandate that the power under s. 237 shall not be delegated to any other authority except the Board as constituted under section\n\nJOE.\n\nSection 637 thus makes it clear that the legislature wanted the powers under s. 237 to be exercised by the Board and did not intend that they should be exercised singly hy members constituting it.\n\nThis conclusion is supported by the insertion of s. 4A in s. I OE G by Act 31 of 1965 whereby the legislature has permitted the Board to authorise its Chairman or any other member or its principal officer to exercise and discharge such of its powers and functions as it may think lit. lf the learned Attorney-General was right that the Government could under its power of prescribing procedure under sub-sec. 5 authorise the Chairman to distribute the Board's H work there was no necessity of enacting sub-sec. 4A at all.\n\nThat contention, if correct, would render sub-sec. 4A a superfluity. Since\n\nDARIUM CHEMICALS v. C0MP. LAW BD. (She/at, J.: 369\n\nsub-s. 4A is not retrospective, any distribution of powers and functions made by the Chairman would be valid if made after and not before the enactment of Act 31 of 1965. No assistance can also be had from the provisions and Acts relied upon by the learned Attorney-General, such as s. lOA or s. !OB of the Act or s. 6 of the\n\nCode of Criminal Procedure or Art. 145 of the Constitution. Under the first, there is an express provision providing for the constitution of benches of the Tribunal which was absent in s. !OE till subsection 4A was enacted; under the second the Code provides for setting up of different kinds of courts with varying jurisdiction.\n\nSuch an arrangement can bear no analogy as it is not distribution of power of one body to its components.\n\nThe third illustration also gives no assistance for it relates not to procedure but to entrustment of certain functions to the Registrar of this Court. Such power is there in Art. 145 which is an inclusive Article.\n\nIt was however argued that under s. 165(b) of the English Companies Act, 1948 a power similar to the one under s. 237(b) has been conferred on the Board of Trade. Reliance was placed on a passage in Halsbury's Laws of England (3rd Edition) Vol. Vll at p. 421 where it is stated that the Board of Trade never meets and for all practical purposes the President is the Board of Trade It appears from this very passage that the Board was constituted . by an order-in-council dated August 23, 1786 and consisted of the President and the holders of certain offices therein specified. But it is the President who takes the oath of allegiance and the official oath and it is he alone for all practical purposes who constitutes the Board. In point of fact certain statutes and orders in council have empowered the President who is a senior Minister or one of the junior ministers to act on beha.'f of the Board.('). That being so, there is no question of distribution of work or delegation of power by the Board to the President.\n\nThe statute conferring power on the Board of Trade itself has authorised the President to act on behalf of the Board. The Board set up under s. !OE therefore cannot bear analogy with the Board of Trade. Nor does that section or s. 637 empower, as is the case with the Board of Trade, the Chairman to exercise or discharge the Board's powers and functions.\n\nThe statute having permitted the delegation of powers to the Board only as the statutory Authority, the powers so delegated have to be exercised by the Board and not by its components. To authorise its Chairman to hand over those functions and powers is not procedure but sub-delegation which is not authorised by the Act. The effect of r. 3 and the order of distribution cf work made in pursuance thereof was not laying down a procedure but authorising and making a sub-delegation in favour of the members. The only procedure which the Government could prescribe was the procedure in relation to the Board, the manner in which it should\n\n(1) 001 Phillips: Constutional and Administrative Law: 3rd EU. 331,\n\n370 ScPJ<EllE COURT RUORT8 [1966] Sl:FP. s.c . .a.\n\ndischarge and exercise the functions and powers delegated to it but A it could not make a provision which under the cloak of procedure authorised sub-delegation. Both r. 3 and the order dated April 6, J 964 made pursuant thereto are thus invalid and the impugned order made m pursuance of the power conferred under the said Ruic and the said order arc incompetent and invalid.\n\nLaslly, the order was attacked on the ground that s. 2371b) which empowers the making of such an order was violative of Arts. 14 and 19(l)(g). The challenge was raised on behalf of the 2nd appellant only.\n\nThe contention under the hea<l of Art. 14\n\nwas that the Act provided three different ways by which the Government can take action, under s. 234 or s. 235 and ' 236 and C lastly under s. 237(b), that the power wntained under s. 23'/(b) w; is more drastic than under the former sections and that these sections enabled the Government to discriminate between companies and companies and pick and choose any one of them at its pleasure for action under s. 237tb1.\n\nIn support oi this contention reliance was placed on Suraj Mall Mohta & Co., v. A.V. Vishwanatha Sastri(') wheres. 5(4) of the Taxation on Income <Investigation Commission) D Act, 1947 was declared discriminatory legislation and Meenakshi Mills Lttl. v. A. V. Vishwanatha Sastrit) where s. 8(1) of the Act was struck down after the Income Tax tAmendmentl Act XXXIII of 1964 was enacted. These decisions, however, cannot avail the petitioners for the reasons for which these provi; ions were struck down arc lacking in the present case.\n\nNo question of discrimination arises in regard to the powers under s. 234 and s. 237. Section E 234 only empowers the Registrar to call for information or explanation and to take action where such information or explanation is not forthcoming.\n\nUnder section 234 there is no power to order investigation either in the Registrar or the Government.\n\nUnder s. 235, no doubt, the Government can appoint inspectors but it can do so under the three specified cases set out therein.\n\nWhat ss. 235 and 236 do is to give power to shareholders on the one hand and r the Registrar through a report on the other hand to move the government to take action.\n\nThese sections do not authorise the Government to appoint inspectors s110 moto as in the case of s. 237(b). The discretionary power directing an investigation is contained in s. 237(b).\n\nTherefore s. 234, s. 235 and s. 236 and s. 237tb) give powers to different authorities vi~ .. the Rcgi, trar and the Government, pnwide powers which are different in c~:tcnt and G nature. exercisable in sets of circumstances and in a manner different from one another.\n\nTherefore. there is no question of discriminatory power having been vested in the government under these sections to pick an<l choose between one company and the other.\n\nThe challenge under Art. 14 therefore must fail.\n\n(I) [ JVC.:;) I S.C.R. H8. (21 [ lu;; r, JI SC.I~. 787,\n\nBARIUM CHE:dICALS II. CO, IP. LAW FD. (-he!af, J.J 371\n\nA$ regards Art. 19(1)(g) the question is whether an order directing an investigation is a restriction and if so, is it a reasonable restriction. Mr. Setalvad tried to seek assistance from the decision in Saghir Ahmad v. The State of U.P.(') but that decision cannot assist him for in that case the U.P. Road Transport Act 1951 deprived the petitioner of his right to carry on his business of plying stage carriages on public highways and the impugned statute was passed before the enactment of clause 6 of Art. 19(1). It is true in a sense that when investigation is ordered, there would be inconvenience in the carrying on of the business of the company. It might also perhaps shake the credit of the company.\n\nThe investi gators have also the power to seize papers and their report is made admissible in evidence as opinion evidence under s. 246.\n\nBut an investigation directed under s. 237(b) is essentially of an exploratory character. When it is directed, it is not as if any restriction is placed on the right of the concerned company to carry on its business and no restrictions are imposed on those who carry on the company's affairs. Even if it is regarded as a restriction, it is not possible to say that it is not protected under cl. 6 of Art. 19(1). As stated in Narayan/al Bansilal v. Manek Phiroz Mstry(') though the Companies Act on the one hand throws open to all citizens the privilege of carrying on business with limited liability, on the other hand, since the company's business has to be conducted through human agency irregularities and even malpraetices in the management of the company's affairs sometimes arise:\n\n\"If persons in charge of the management of companies abuse their position and make personal profit at the cost of the creditors, contributories and others interested in the company, that raises a problem which is very much different from the problem of ordinary misappropriation or breach of trust.\n\nThe interest of the company is the interest of several persons who constitute the company, and thus persons in management of affairs of such companies can be classed by themselves as distinct from other individual citizens. A citizen can and may protect his own interest but where the financial interest of a large number of citizens is left in charge of persons who manage the affairs of the companies it would be legitimate to treat such companies and their managers as a class by t.hemselves and to provide for necessary safeguards and checks against a possible abuse of power vesting in the managers.\"\n\nIf ss. 234 to 237 are viewed from this point of view there would be no difficulty in coming to the conclusion that there is neither H the violation of Art. 14 nor of Art. 19(1)(g).\n\nTo these observations\n\n(I) [ 1955] S.C.R 707.\n\n(2) [ 1961] I S.C.R. 417 at p. 445.\n\n3i2\n\n\n[IOOGJ SUPP. S.C R.\n\nmay be added the observations of the Company Law Committee A in their report of 1952 where the Committee have noted that the\n\nned for a provision for investigation was generally recognized. while recognising that in some cases the use of the powers of in spection and investigation may shake the credit of the company and affect its competitive position the committee observed that such a risk \"should not, however, deter us from considering the desirability B of conferring adequate powers on an appropriate authority to investigate the affairs of a company where such investigation is prima facie called for.\" Similar observations are also to be found in the Report of the Company Law Committee presented to the British Prliament in June 1962 in regard to a similar power of investigation under s. 165(b) of the English Act. In the context of C the rapid pace at which industrialisation is taking place in the country and companies are floated with share capital of the size and volume not conceived of only a few years ago, chances of misuse of power. maladministration and malpractices have consider ably increased. A safeguard such as a power of investigation becomes not only necessary but also inevitable for the protection of an increasing number of shareholders, creditors and other per- D sons interested in such large companies.\n\nConsidered from this angle there would be no difficulty in holding that even if the provision as to investigation amounts to a restriction. it is a reasonable restriction, especially so when the power under s. 237(b) as stated earlier can only be exercised on an opinion fanned on the objective test of the evistence of circumstances suggesting things set out in\n\ncl. (b) of s. 237.\n\nIt is not therefore possible to uphold the challenge E to the clause under either of these two heads.\n\nThough the contentions regarding ma/a /ides and the constitutional invalidity of s. 237(b) arc not upheld. the appellant succeed in the other two contentions.\n\nThe appeal is allowed and the impugned order is set aside.\n\nSince the appellants have partly succeeded and partly failed. there will be no order as to costs.\n\nORDER\n\nIn accordance with the opinion of the majority the appeal is allowed but there will be no order as to costs.", "total_entities": 276, "entities": [{"text": "THE COMPANY LAW BOARD AND OTHERS", "label": "RESPONDENT", "start_char": 49, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "THE COMPANY LAW BOARD AND OTHERS", "offset_not_found": false}}, {"text": "A. K. SARKAR, C.J.", "label": "JUDGE", "start_char": 97, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "A.K. 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"PROVISION", "start_char": 142935, "end_char": 142943, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 142951, "end_char": 142974, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "[1961] 1 S.C.R. 227", "label": "CASE_CITATION", "start_char": 144000, "end_char": 144019, "source": "regex", "metadata": {}}, {"text": "Preventive Detention Act, 1950", "label": "STATUTE", "start_char": 146743, "end_char": 146773, "source": "regex", "metadata": {}}, {"text": "s. 57", "label": "PROVISION", "start_char": 147639, "end_char": 147644, "source": "regex", "metadata": {"linked_statute_text": "the Preventive Detention Act, 1950", "statute": "the Preventive Detention Act, 1950"}}, {"text": "Singapore Improvement Ordinance 1927", "label": "STATUTE", "start_char": 147652, "end_char": 147688, "source": "regex", "metadata": {}}, {"text": "s. 237(b)", "label": "PROVISION", "start_char": 150751, "end_char": 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173307, "end_char": 173316, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 173879, "end_char": 173905, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 145", "label": "PROVISION", "start_char": 173913, "end_char": 173921, "source": "regex", "metadata": {"statute": null}}, {"text": "Court delegating certain powers to the Registrar to show that procedure might differ from Act to Act", "label": "STATUTE", "start_char": 173952, "end_char": 174052, "source": "regex", "metadata": {}}, {"text": "s. 1", "label": "PROVISION", "start_char": 174709, "end_char": 174713, "source": "regex", "metadata": {"linked_statute_text": "Court delegating certain powers to the Registrar to show that procedure might differ from Act to Act", "statute": "Court delegating certain powers to the Registrar to show that procedure might differ from Act to Act"}}, {"text": "s. 5", "label": 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"metadata": {"statute": null}}, {"text": "Section 637", "label": "PROVISION", "start_char": 176061, "end_char": 176072, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 237", "label": "PROVISION", "start_char": 176138, "end_char": 176144, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4A", "label": "PROVISION", "start_char": 176308, "end_char": 176313, "source": "regex", "metadata": {"statute": null}}, {"text": "OE G by Act", "label": "STATUTE", "start_char": 176322, "end_char": 176333, "source": "regex", "metadata": {}}, {"text": "sec. 5", "label": "PROVISION", "start_char": 176663, "end_char": 176669, "source": "regex", "metadata": {"linked_statute_text": "OE G by Act", "statute": "OE G by Act"}}, {"text": "sec. 4A", "label": "PROVISION", "start_char": 176765, "end_char": 176772, "source": "regex", "metadata": {"linked_statute_text": "OE G by Act", "statute": "OE G by Act"}}, {"text": "sec. 4A", "label": "PROVISION", "start_char": 176828, "end_char": 176835, "source": "regex", "metadata": {"linked_statute_text": "OE G by Act", "statute": "OE G by Act"}}, {"text": "s. 4A", "label": "PROVISION", "start_char": 176914, "end_char": 176919, "source": "regex", "metadata": {"linked_statute_text": "OE G by Act", "statute": "OE G by Act"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 177224, "end_char": 177228, "source": "regex", "metadata": {"linked_statute_text": "OE G by Act", "statute": "OE G by Act"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 177237, "end_char": 177263, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 145", "label": "PROVISION", "start_char": 177267, "end_char": 177275, "source": "regex", "metadata": {"linked_statute_text": "OE G by Act", "statute": "OE G by Act"}}, {"text": "section 4A", "label": "PROVISION", "start_char": 177437, "end_char": 177447, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 145", "label": "PROVISION", "start_char": 177850, "end_char": 177858, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 165(b)", "label": "PROVISION", "start_char": 177924, "end_char": 177933, "source": "regex", "metadata": {"statute": null}}, {"text": "English Companies Act, 1948", "label": "STATUTE", "start_char": 177941, "end_char": 177968, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 237(b)", "label": "PROVISION", "start_char": 178002, "end_char": 178011, "source": "regex", "metadata": {"linked_statute_text": "the English Companies Act, 1948", "statute": "the English Companies Act, 1948"}}, {"text": "s. 637", "label": "PROVISION", "start_char": 179141, "end_char": 179147, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2371", "label": "PROVISION", "start_char": 180458, "end_char": 180465, "source": "regex", "metadata": {"linked_statute_text": "To authorise its Chairman to hand over those functions and powers is not procedure 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"start_char": 181690, "end_char": 181696, "source": "regex", "metadata": {"linked_statute_text": "Amendmentl Act XXXIII of 1964", "statute": "Amendmentl Act XXXIII of 1964"}}, {"text": "section 234", "label": "PROVISION", "start_char": 181863, "end_char": 181874, "source": "regex", "metadata": {"linked_statute_text": "Amendmentl Act XXXIII of 1964", "statute": "Amendmentl Act XXXIII of 1964"}}, {"text": "s. 235", "label": "PROVISION", "start_char": 181966, "end_char": 181972, "source": "regex", "metadata": {"linked_statute_text": "Amendmentl Act XXXIII of 1964", "statute": "Amendmentl Act XXXIII of 1964"}}, {"text": "ss. 235 and 236", "label": "PROVISION", "start_char": 182094, "end_char": 182109, "source": "regex", "metadata": {"linked_statute_text": "Amendmentl Act XXXIII of 1964", "statute": "Amendmentl Act XXXIII of 1964"}}, {"text": "s110", "label": "PROVISION", "start_char": 182326, "end_char": 182330, "source": "regex", "metadata": {"linked_statute_text": "Amendmentl Act XXXIII 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null}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 185743, "end_char": 185750, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(1)(g)", "label": "PROVISION", "start_char": 185758, "end_char": 185771, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 165(b)", "label": "PROVISION", "start_char": 186682, "end_char": 186691, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 237(b)", "label": "PROVISION", "start_char": 187433, "end_char": 187442, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 237", "label": "PROVISION", "start_char": 187601, "end_char": 187607, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 237(b)", "label": "PROVISION", "start_char": 187794, "end_char": 187803, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1966_1_373_379_EN", "year": 1966, "text": "1- A\n\nKUPPA GOUNDAN & ANR.\n\nv .\n\nM.S.P. RAJESH\n\nMay 5, 1966\n\n[M. HIDAYATULLAH, V. RAMASWAMI AND J.M. SHELAT, JJ.)\n\nCriminal Procedure Code, 1898 (Act 5 of 1898). s. 476-Trial con eluded-Maintainability of the complaint for perjury.\n\nAt a trial the appellants gave evidence against the respondent.\n\nAfter the conlusion of the trial the respondent filed a petition in the court of the Magistrate under s. 476(1) Criminal Procedure Code, praying for the prosecution of the appellants for giving false evidence under s. 193 Indian Penal Code, and adduced evidenee in support of his contention. The Magistrate thought that in the interest of justice the, appellants should be prosecuted and accordingly filed a complaint. The appellants contended that the complaint was not maintainable, because the trying Magistrate had not followed the procedure under s. 479-A, Criminal Procedure Code and it was therefore not' open to the Magistrate to take recourse to the provisions of s. 476.\n\nHELD: The prosecution of the appellants under the provisions of s. 476 Criminal Procedure Code by the Magistrate after the conclusion of the trial was legally valid and was not affected by the bar of cl. (6) of s. 479-A. Criminal Procedure Code. [377G]\n\nThe bar of cl. (6) will not apply to a case where perjury is detected not merely with reference to the evidence adduced at the trial but with reference to the evidence adduced in some other distinct proceeding not then brought before the court or because there is some other material subsequently produced after the conclusion of the trial and delivery of judgment which renders the prosecution for perjury essential in the interests of justice. [377 F]\n\nShabir Hussein Bholu, v. State of Maharashtra, [1963] Supp. 1 S.C.R. 501, explained and distinguished.\n\nC.P. Kasi Thevar v. Chinnia'i Konar, A.LR. 1960 Mad. 77 and In re Gnanamuthu A.LR. 1964 Mad. 446, approved.\n\nJoi Bir Singh v. Malkhan Singh, A.I.R. 1958 All. 364, Parsotam Lal Vir Bhan v. Madan Lal Bas'iambar Das, A.LR. 1959 Punj. 145 and Amolak v. State. A.LR. 1961 Raj. 220, disapproved.\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 69 of 1966.\n\nAppeal by special leave from the judgment and order dated December 9, 1965 of the Madras High Court in Criminal Revision Case No. 1261 of 1964 and Criminal Revision Petition No. 1235 of 1964.\n\nR. Thiagarajan, for the appellants.\n\nPurshottam Trikamdas and T. V. R. Tatachari, for the respondent.\n\n374 Sl'PREME COL\"RT REPORTS\n\n(1966) Sl:PP. S.C.R.\n\nThe Judgment of the Court was delivered by Ramaswami, J. The 2nd petitioner Kuppuswami lodged a a complaint with Y ercaud Police on October 12, 1963 alleging that the respondent, M. S. P. Rajesh and other persons had formed an unlawful assembly and committed offences of house trespass, mischief and causing hurt at 10 p.m. on October 11,\n\n1963. The complaint was the subjct-matter of investigation by the police who did not present a charge-sheet against respondent. M.\n\nRajesh but filed a charge-sheet against 4 other persons under ss.\n\n323. 325 and 448, Indian Penal Code in C.C. No. 3097 i 1963 in the Court cf Sub-Magi>tr•1te 3.\n\nSa'em. The case was tried by the Sub-Magistrate \\\\'ho ultimately acquitted all the accused by his judgment dated December 13, 1963. In the course of evidence at that trial the !st petitioner was examined as P.W.\n\nI and 2nd petitioner as P.W. 2 and it is alleged by the respc'ndent that the petitioner gave false evidence to the effect that the respondent was also among the trespassers and assailants and that he was armed with a gun which another accused took from him. After the conclusion of the trial the rpondent ti!ed a petition in the court of\n\nthe Magi5tratc under s. 476(1), Criminal Procedure Code alleging D that on October 11. 1962 he along with certain other Directors. had attended a meeting of the Board of Diccctors of Chembra Peak Estate Ltd. from 4.30 p.m. to 5.15 p.m. at Bangalore and that he was not at Yercaud on October 11. 1963. and prayed for the prosecution of the petitioners for giving false evidence under s. 193, Indian Penal Code. The respondent produced a copy of the Draft Minutes of the Board meeting and also cited certain\n\nwitn~\"es in support of his case. After co-nsidering the matter, the Sub-Magistrate of Salem held that he was satisfied that the respondent could not have been present at the alleged occurrence on\n\nOctober 11, 1963 at Yercaud and that P.W.s 1 and 2 deliberntely committed perjury and implicated Mr.\n\nRajesh as among the assailants. The Suh-Mag; strate thought that in the interest of justice the petitioners should be prosecuted under s. 193, Indian Penal Code and accordingly filed a complaint against the petitioners under s. 193, Indian Penal Code in the Court of District Magistmte (Judicial), Salem. The petitioners contended that the complaint was not maintainable in law because the tryin!? Magistrate\n\nG had not followed the procedure under s. 479-A. Criminal Procedure Code and it was therefore not open to the Magistrate to take recourse to the provisions of s.\n\n476. Criminal Procedure Code. By his order dated Februry 10 1964 the fli<trirt fltaistrate discharged the petitioners holding that the complaint was not sustainable i, view of the decision of t'1is Court in Shabir Hmsain\n\nB/10/11 v. State of Mal1arashtra('). Thereupon the respondent filed Crimina.1. R.C. No. 1261 of 1964 in the Madras High Court aainl H the order of the District Magistrate (Judiciall, Salem. B); his\n\n\n(l) [1933] s, p~. I S.C.R. 5Jl.\n\n,, ' I\n\nKOPPA GOUNl•AN v. RAJE8R (Ram.a1rwmni, J.) 375\n\njudgment dated December 9, 1965 Anantanarayanan'. J. set aside the orders of •!:Je District Magistrate (Judicial) and drrected that the case should be taken up by the District Magistrate and the trial proceeded with in accordance with law.\n\nThis appeal is brought, by special leave, from the order of the Madras High Court dated December 9, 1965 in Crl. R.C. No. 1261of1964.\n\nThe question of law arising in this case is-what is te true meaning and scope of s. 476, Criminal Procedure Code m the context of s. 479-A( l) and (6), Criminal Procedure Code with regard to a prosecution authorised by a Court m respect of an offence of prejury committed before it in the course Clf the trial?\n\nChapter XXXV of the Code of Criminal Procedure prescribes the procedure to be followed for prosecution of offenders in case cf certain offences affecting the administration of justice. Section 4/6 sets out the procedure for prosecution of offenders for offences enumerated in s. 195(l)(b) and (c) of the Code of Crimi•\n\nnal Procedure. If a Civil, Revenue or Criminal Court is of opinion, that it is expedient in the interests of justice that an enquiry should be made into any offence referred to in s. 195(1)(b) or (c) which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any. as it thinks necessary, record a finding to that effect and make a complaint thereof in writing and forward the same to a Magistrate of the first class having jurisdiction. Section 476-A authorises a superior Court to make a complaint where a Subordinate Court has omitted to do so in respect of offences and in the circumstances mentioned in s. 476(1). Section 476-B provides for a right of appeal against the order making or refusing to make a complaint. Sections 478 and 479 deal with the procedure which may be followed in certain grave cases. Section 479-A which was added by the Code of Criminal Procedure (Amendment) Act 26 of J 955 by the first sub-section (in so far as it is material) provides as follows :\n\n\"479-A. (!) Notwithstanding anything contained in sec• tions 476 to 479 inclusive, when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefor and J,/8fi8Cf-'.?G\n\n376 SUPl\\QE OOIJBT l\\EPOl\\TS (1966)\n\nSUPP.\n\n8.C.11.\n\nmay, if it so thinks fit, after giving the witness an opportunity A of being heard, make a complaint thereof in writing signed by the presiding officer of the Court setting forth the evidence which, in the opinion of the Court. is false or fabricated and forward the same to a. Magistrate of the first class having jurisd; ction, and may ..................... \".\n\nSub-section (6) of this section enacts as follows: -- \"(6) No proceedings shall be taken under sections 476 to 479 inclusive for the prosecution of a person for giving or fabricating false evidence. if in respect of such a person proceedings may be taken under this section.\n\nThe scheme of s. 479-A is to enact a special procedure for the more expeditious and effective manner of dealing with certain C cases of perjury and fabrication of false evidence by witnesses in the course of judicial proceedings. There is, however. a necessary condition for the application of s. 479-A, Criminal Procedure Code. The condition is that the Court before it delivers its judg ment or at any rate at the time of delivering the judgment must form an opinion that a particular witness or witnesses, is, or, are D giving false evidence, if the court could not fom1 any opinion about the falsity of the evidence of the witness appearing before it, then certainly the court cannot at the time of delivering its judgment, record any finding about the same. It is manifest that a court can come to a conclusion that a witness is false only when there are materials placed before it to justify that opinion. If no materials are placed before the court to enable the court to form E an opinion that a witness is giving false evidence, then certainly it could not form that opinion. In the present case, the respondent produced material before the trial court on December 23, 1963 after the conclusion of the trial that the petitioners had given false evidence in the case and the respondent produced the necessary documents along with an application for proceeding against the petitioners under s. 476. Criminal Procedure Code. Till those J documents were produced there was no opportunity or occasion for the magistrate to form an opinion about the falsity of the evidence adduced by the petitioners. It is, therefore, manifest that at the time when the judgment was delivered the magistrate had no material before him to form an opinion that the petitioners had given false evidence. It is only after the respondent had made his application on December 23, 1963 and brought the necessary G material to the notice of the court that the falsity of the evidence of the petitioners became apparent and the magistrate was in a position to form an opinion about the falsity of the evidence given by the petitioners. It is, therefore, clear that s. 479-A will not be applicable on the facts of this case, and if the provisions of s. 479-A will not apply on the facts of this case it follows that the H\n\nbar contemplated by cl. (6) of that section \\viii not be applicable.\n\nThe reason is that cl. (6) can be invoked only in cases in which\n\nKUPPA GOUNDAN 1), RAJESH (Ramaswami, J.) 377\n\ns. 479-A(l) will be applicable. The crucial words of cl. (6) are \"!f\n\nin respect of such a person proceedings may be taken under this section\". It is clear that the bar under s. 479-A (6) refers not to the legal character of the offence per se but to the possibility of action' under s. 479-A upon the facts and circumstances of the particular case. If, for instance, material is made avaiabl~ to the court after the judgment bad been pronounced, rendermg 1t clearly beyond doubt that a person had committed perjury during the trial and that material was simply unavailable to the Court before or at the time of judgment, it is very difficult to see how the court could have acted under s. 479-A, Criminal Procedure Code at all. It cannot be supposed that the legislature contemplated that such a case of perjury, however, gross should go unpunished in such circumstances. It appears to us tha.t the true interpretation of the language of cl. (6) of s. 479-A is that it does not operate as a bar to the prosecution for perjury in a case of this\n\ndescription. Take, for instance, the trial of 'A' for the murder of 'B' in the Sessions Court where 'C', 'D' and 'E' gave evidence that they actually saw 'A' committing the murder of 'B'. Suppose at the conclusion of the trial and after delivery of judgment by the Sessions Court 'B' is found alive and there is uncontestable evidence to show that 'A' was falsely charged for the murder of 'B'. Is it to be contemplated tha.t in such a case there is no remedy available to the Court to prosecute C, D, and E for perjury under the provisions of s. 476, Criminal Procedure Code, though action cannot be taken, in the circumstances of the case, under s. 479-A, Criminal Procedure Code? In our opinion, such a startling consequence was not contemplated by Parliament and the bar of cl. (6) of s. 479-A was intended only to apply to cases of perjury and fabrication of false evidence in which the trying Magistrate could have acted under s. 479-AO). In other words, the bar of cl. (6) will not apply to a case where perjury is detected not merely with reference to the evidence adduced at the trial but with reference to the evidence adduced in some other distinct proceeding, not then brought before the court or because there is some other material subsequently produced after the conclusion of the trial and delivery of judgment which renders the prosecution for perjury essential in the interests of justice. Applying the principle in the present case we are of opinion that the prosecution of the petitioners under the provisions of s. 476, Criminal Procedure Code by the Magistrate after the conclusion of the trial is legally valid and is not affected by the bar of cl.\n\n(6) of s. 479-A, Criminal Procedure Code.\n\nOn behalf of the appellants Mr. Thiagarajan referred to the decisi.3n of this Court in Shabir Hussein Bholu v. State tJf Maharashtra('). But the principle of that decision does not afford any assistance to the appellants in this case. It appears that the\n\n~78\n\nSUPREME OOURT REPORTS [1966j Sl:PP. 8.C.R.\n\nappellant in that case appeared as a witness in a jury trial for murder. Before the CoW't he gave a statement contradictory to the I one he had given before the committing oourt. After the conclusion of the trial and delivery of judgment the Sessions Judge passed a separate order for prosecution of the appellant for intentionally giving false evidence under s. 193, Indian Penal Code.\n\nIt was held by this Court that the provisions of s. 479-A had not been complied with and no cogni1.ancc could be taken of the offence. Two conditions were laid down for the exercise of the powers under s. 479-A, (i) the court must form an opinion that the person has committed one of the two categories of offences referred to in s. 479-A, and (ii) the Court must come to the conclusion that for the eradication of the evils of perjury etc. and in the interests of justice it is expedient that the person be prosecuted. This opinion and conclusion must be arrived at at the time of c\n\nthe delivery of the judgment or final order in the trial; the court cannot later on resort to s. 476 and make a complaint against the witnesses. The provisions of s. 479-A were held applicable to the case and the fact that the trial was with the aid of a jury did not preclude the Sessions Judge from recording the findings required by s. 479-A. While considering whether action should be taken under s. 479-A it was open to the Sessions Judge to say whether the evidence tendered at the trial was true or false. It is manifest that the material in that case was produced before the Sessions Court for coming to the conclusion that the appellant had committed perjury and so the procedure contemplated in s. 479-A(lJ was applicable and since the Sessions Judge did not proceed under that section, though he could have done so, the bar contemp'ated by cl. (61 of s. 479-A operated and no action could have been taken under s. 476, Criminal Procedure Code. The ratio of that decision is not applicable to the present case because the material facts are different. It is necessary to add that in Shabir Hussein Bholu v. State of Maharashtra(') this Court observed that if the Judge is unable to come to a conclusion that the statement made at the trial is false then provisions of s. 479-A (!) would not be applicable. At page 512 of the Report it was observed by this Court as follows:\n\n\"But. for considering the applicability of s. 479-A(l) what has to be borne in mind is that in a jury trial it is possible for the Judge to come a concluion that the statement made at the trial is false. If he comes to that conclusion then, as rightly observed in Badullah's case\n\n(A.LR. 1961 All. 397\\, he has no option but to proceed under s. 479-A(l), Cr. P.C. The question then is whether he could act 1Jnder this provision if he is unable to form an opinion one way or the other as to whether the evidence tendered at the trial is false\n\nor the evidence before the committing Magistrate is false.\n\nH What would be the position in S~£~ a case? If the Eo~~~:\n\nA ings before the committing Magistrate must be held to be entirely separate proceedings then we agree with the Allahabad High Court that s. 479-A(I) would not apply.\"\n\nThere is divergence of opinion among the various High Courts on the question of Jaw presented for determination in this case. In Jai Bir Singh v. Malkhan Singh and another('), it was heM by Sahai, J. that the bar of s. 479-A(6) applies to all cases of perjury, viz., (]) those where the perjury or the fabrication of false evidence has been detected by the court when the judgment is pronounced, and (2) cases where the perjury or fabrication of false evidence does not come to light till after the judgment has been pronounced and it was not open to the Court to proceed under s. 476, Criminal Procedure Code for prosecution in the latter class of cases. The same view has been taken by the Punjab High Court in Parshotam Lal L. Vir Bhan v. Madan Lal Bishambar Das(') and the Rajasthan High Court in Amolak v.\n\nState('). A contrary view has been expressed by the Madras High Court in C. P. Kasi Thevar v. Chinniah Konar(') and In re. Gnana\n\nmuthu(').\n\nFor the reasons already expressed we are of opinion that the decision of the Madras I i; gh Court in C.P. Kasi Thevar v. Chinniah Konar(') and In re. Gnanamuthu(') represents the correct law on the point.\n\nFor these reasons we hold that there is no merit in this appeal which is zcordingly dLmissed.\n\n 1'1 A.LR. 1958 All. 364. ,:sl A.LR. 1961 Re.jastha•1 220.\n\nAppeal dismissed.\n\n( 2 } A.LR. 1959 Punjab 145.\n\nI') A.LR. 19GO Mad. 77. e1 A,.I.R. 196-! i.\\'Iad. 440.", "total_entities": 91, "entities": [{"text": "A\n\nKUPPA GOUNDAN & ANR", "label": "PETITIONER", "start_char": 3, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "KUPPA GOUNDAN & ANR", "offset_not_found": false}}, {"text": "S.P. RAJESH", "label": "RESPONDENT", "start_char": 35, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "M.S.P. RAJESH", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 62, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "V. 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{"document_id": "1966_1_380_386_EN", "year": 1966, "text": "INDIAN CHEMICAL PRODUCTS\n\nST A TE OF ORISSA A ANR.\n\nMay 5, 1966\n\n(J. R. MUDHOLKAR, R. S. BACHAWAT AND RAGl!UBAR DAYAL.. JJ.J\n\nCompan11 Law-DijJe1\"ence between \"transmission\" and \"transfer\" of shares-Ownership of shares passing by operation of !au.~ Board of directors whether can refu.se amenclment of share register.\n\nIndian Companies Act, 1913, s. 38- Court's power under-Proper exercise of.\n\nAs a result of constitutional changes following the Indian Independence Act, 1947, the ownership of the public propertiea of the Y:aharaja of the Mayurbhanj includins certain shares in the appellant company passed to the State of Orissa. Although tb.e State had acquired title to these shares by operation of law, it also obtained D from the Maharaja by way of abundant caution, a deed transferring these shares to it. In 1950, the State Government lodged the share scrip and transfer deed with the company and requested it to make the necessary chanies in the share register. Despite repeated requests, however, the directors of the company refused to do so.\n\nIn 1955 the State filed an appliootion under s. 38 of the l.ndian Companies Act, 1913 in the High Court of Orissa, asking for re<:, tificution of the share l'E'(!, ister by inserting its name as the holder or the share in place of the Maharaja. The High Court allowed the appli- E cation and passed a supplemental order directing the filing of the notice of rectification with the Reistrar within a fortnight. The company's appeal before the Division Bench failed, whereupon it appealed to this Court by specialleave.\n\nIt was urged on behalf of the appellant company, inter alia, that under Art. 11 of its Articles of Association as well as under cl. 22 of Table A read with art. 1-A the diredorn has power to refuse registration of the transfer.\n\nHELD: (i) In Table A which was attracted by art. 1-A of the company's Articles of Association, the word 'transmiaaion' is put in contradistinction to the word 'transfer'. One means a transfer by the act of the parties, the other a transmission by devolution of law.\n\nArt. If refers to transfers. A devolution of title by operation of law is not within its purview. Being a restricth-e provision the article must be strictly construed. In the instant case, the title to the shares 6 vested in the State of Orissa by operation of law and the State did not require an instrument of transfer from the Maharaja to complete its title. Article 11 docs not confer upon the Board of directors a power to refuse recognition of such a devolution of title. [383G-384Cl.\n\nIn re Beritham Mills Spinning Compan11. (1879) 11 Ch. D. 900. referred to.\n\n(ii) Clause 22 of the regulations in Table A read with Art. 1-A B confers power on the Board of directors to decline registration of transmission of title In consequence of the death or insolvency of a\n\nA .\n\n.~·\n\nINDIAN CHm.t:. l'RODTJCTS v. ORISSA (Bachawat, J.) 381\n\nmember. In the instant cas'e there was no transmission of title in consequence of death or insolvency and clause 22 had, therefore no appiicatwn. [384 DJ\n\n(iii). In so far as the claim of the State was based on the transfer deed it fell within the purview of Art. 11. But the refusal of the board of directors to register the transfer under that article was ma!a fide. The power under that article was a discretionary power.\n\nThe directors must exercise thaV power reasonably and in good faith. The Court can control this discretion if they act capriciously or in bad faith. [384 E-F; 385 C-D]\n\n(iv) The name of the State of Orissa had without sufficient reason, been omitted from the register, and there was default in not entering on the register the fact of the Maharaja having ceased to be a member. The Court's jurisdiction under s. 38 was, therefore, attracted. The High Court rightly ordered the rectification in the exercise of its summary powers under s. 38. The jurisdiction created by s. 38 is very beneficial and should be liberally exercised.\n\n[385G]\n\nCIVIL APPELLATE JURISDICTION; Civil Appeal No. 303 of 1963.\n\nAppeal from the judgment and order dated September 5, 1960 of the Orissa High Court in Appeal under Orissa High Court Order No. 4 of 1956.\n\nN. C. Chatterjee, R:111adev Chaudhuri, G. S. Chatterjee and S. C. Majumdar, for the appellant.\n\nC. K. Daphtary, Attorney-General, N. D.\n\nKarkhanis and R. N. Sachthey, for respondent No. 1.\n\nThe Judgment of the Court was delivered by Bachawat, J. On November 29, 194 7, the Indian Chemical Products, Ltd., a limi.ted company, was incorporated having its registered offices in Baripada, Mayurbhanj and in the town of Calcutta. Its authorised capital is Rs. 25 lakhs divided into 25,00U shares of Rs. l 00 each. The company has seven share-holders.\n\nThe Maharaja of Mayurbhanj subscribed and paid for 7,500 shares. The remaining six shareholders hold 150 shares only. All the shareholders are signatories to the memorandum of association of the company. The State of Orissa claims that by reason of the constitutional changes since the declaration of independence, all the shares held by the Maharaja of Mayurbhanj have now vested in it by operation of law. The State also based its claim to the shares on a formal instrument of transfer executed by the Maharaja. On March 16, 1950, the Government of Orissa lodged the share scrip and the transfer deed with the company, and requested it to make the necessary changes in the share register. The Government as also the Maharaja, through his agent, the Imperial Bank of India, repeatedly requested the company to register the Secretary to the Government of Orissa,, Finance Department as the holder of the shares in place of the Maharaja.\n\nThere was protracted correspondence in the matter for over three L/S5SCI-26(a)\n\n38:!\n\nRCPREME COUR'l' REPORTS i.1966 j 8L'l'P. <.C.R.\n\nyears and eventually on May 16, 1953, the board of directors of A the company refused to register the transfer. On December I, 1953, Sri S. K. Manda!, attorney for the State of Orissa, requested the company to record the name of the State as the owner of the shares in the share register, but the company declined to do so.\n\nOn February 9, 1955, the State of Orissa filed an application under s. 38 of the Indian Companies Act, 1913 in the High B Court of Orissa asking for rectification of the share register by inserting its name as the holder of the shares in place of the Maharaja. The company and the Maharaja were impleaded as respondents. The application was contested by the company only.\n\nOn November 22, 1956, Ray, J. allowed the application. On September 13, 1957, he passed a supplemental order directing the filing of the notice of rectification with the Registrar within a C fortnight. On September 5, 1960, a Division Bench of the High Court dismissed the appeal preferred by the company. The company now appeals to this Court on a certificate granted by the High Court.\n\nBoth courts concurrently held that (I) the tit'e to the shares vested in the State of Orissa by operation of law; (2) the refusal of D the board of directors to register the transfer was ma/a fide; (3) the State of Orissa was entitled to rectification of the share register and a proper case for the exercise of the Court's jurisdiction under s. 38 of the Indian Companies Act. 1913 had been made out; (4) the petition was not liable to be dismissed on the ground that the State had asked the company to register the name of the Secretary to the Government of Orissa, as the share- E holder in place of the Maharaja. The appellate Court also held that under the articles of association of the company the board of directors had no power 10 refuse registration of a transfer where the transfer was by operation of law. The appellant challenges the correctness of these findings.\n\nThe courts below concurrently found that the 7,500 shares F were held by the Maharaja in his capacity as ruler of the State of Mayurbhanj. This finding is amply supported by the documentary evidence on the record and is no longer challenged. The State of Mayurbhanj was one of the fcudawry States of Orissa under the suzerainty of th•; British Crown. As from August 15. 1947, with the declaration of independence the paramountcy of the British Crown lapsed. Thereafter, steps were taken for the integration of G the State with the Dominion of India. On October 17, 1948, the Maharaja of Mayurbhanj signed an agreement for the merger of the Stnte with the Dominion. By art. I of this agreement, the Maharaja c0mpletly ceded to the Dominion his sovereignty over the State of Mayurbhanj as from November 9, 1948.\n\nArticle 4 of the agreement allowed the Maharaja to retain the H ownership of his private properties only as distinct from the State properties. On and from November 9. 19-l8. as a necessary\n\n,. .\n\nconsequence of the cesser of sovereignty all the public properties of the State including the 7 ,500 shares in the company vested in the Dominion. By operation of law in consequence of the change of sovereignty, all the public properties of the State which were vested in the Maharaja as the sovereign ruler devolved on the Dominion as the succeeding sovereign.\n\nAs from January 1. 1949, the Government of India in exercise of its powers under s. 3(2) of the Extra Provincial Jurisdiction Act (47 of 1947) delegated to the Government of Orissa the power to administer the territories of the merged State. On\n\nAugust 1, 1949. the States Merger (Governors' Provinces) Order, 1949 came into force, and in consequence of s. 5(1) of the Order, all property vested in the Dominion Government for purposes of governance of the merged State became from that date vested in the Government of Orissa, unless the purposes for which the property was held were central purposes. By a certificate dated November 10, 1953, the Government of India declared that the 7,500 shares were not held for central purposes. Under the Constitution which came into force on January 26, 1950, the territories of the merged State were included in the State of Orissa. By reason of these successive constitutional changes, the shares became vested in the State of Orissa. The State is now the legal owner of the shares and the directors of the company are bound to enter its name in the register of members, unless there is ome restrictive provision in the articles authorising them to refuse the registration.\n\nThe company contends that under its articles, the directors have the power to refuse the registration. lt relies on art. 11. which reads:\n\n\"The Board of Directors shall have full right to refuse to register the transfer of any share or shares to any person without showing any cause or sending any notice to the transferee or transferor.\n\nThe Board may refuse to register any transfer of shares on which the Company has ], ien.\"\n\nArticle 1-A attracts the regulations in Table A of the First Schedule to the lndian Companies Act, 1913 so far as they are applicable to private companies and are not inconsistent with the\n\narticles. The regulations in Table A make a distinction between transfer and transmission of shares. in respect of a transfer, they re4uirc that the instrument of transfer shall be executed both by the transferor and the transferee. A transmission by operation of law in not such a transfer. In In re.\n\nBentham Mills Spinning Company('), James. L.J. said \"In Table A the word 'transmission'\n\n(') (!879) 11 Ch. D. 000. \"\"'\n\nSUPREME OOURT REPORTS (1966]\n\nSUPP.\n\n8.C'.R.\n\nA is put in contradistinction to the word 'transfer'. One means a transfer by the act of the parties, the other means transmission by devolution of law.\" Article 11 refers to transfers. A devolution of title by operation of law is not within its purview. Being a restrictive provision, the article must be strictly construed. In thcinstant case, the title to the shares vested in the State of Orissa by B operation of law, and the State did not require an instrument of transfer from the Maharaja to complete its title. Article 11 does not confer upon the board of directors a power lo refuse recognition of such a devolution of title. We may add that we express no opinion on the question whether such an article applies to an involuntary transfer of shares by a Court sale having regard to the provisions of 0.21, r. 80 of the Cede of Civil Procedure with re- 0 gard to the execution of necessary documents of transfer.\n\nClause 22 of the regulations in Table A read with art. 1-A confers power upon the board of directors to decline registration of transmission of title in consequence of the death or insolvency of a member. In the instant case, there is no transmission of title in consequence of death or insolvency, and clause 22 has no D application. Under the articles, the directors had therefore no power to refuse registration of the devolution of title on the State of Orissa by operation of !aw in consequence of the constitutional changes.\n\nThough the State of Orissa had acquired title to the shares by operation of law, by way of abundant caution it obtained a g deed of transfer and lodged it with the company together with the share scrip. The transfer deed was duly stamped and complied with all the formalities required by law. The claim of the State of Orissa based upon the transfer deed was within the purview of Art. 11. Even with regard to this claim, the Courts be.ow concurrently held that the board of directors acted ma/a fide in refusing to register the transfer. This finding is amply supported by the materials on the record. In spite of the fact that the State had filed F with the company a certificate of the Collector of Stamp Revenue. West Bengal, that no stamp duty was payable on the transfer, the company raised the objection that the transfer deed must be stamped. To avoid this objection, the Government stamped the deed and again lodged it with the company. For over three years. the directors de1aycd registration of the transfer on frivolous G pretexts. On May 16, 1953, the directors without assigning any reason declined to register the transfer. Before the High Court, the company asserted J.hat the registration was refused because the Maharaja of Mayurbhanj was under an obligation to execute an agreement conferring valuable rights on the company and the\n\nState of Orissa had failed to honour this obligation. Reliance waS' H placed on cl. 6 of the company's memorandum of association, which stated that the company and the Maharaja proposed to\n\n• •\n\n. 0\n\nDIDIAN CHEM. rRODUCTS v. ORISSA (Bc/wwat, J.) 385\n\ncnkr into an agreement and a copy of the proposed agreement was annexed. Uause 6 shows that there was a proposal between the parties to enter into an agreement, but there was no concluded aoreemcnt between them, nor was there any binding obligation on\n\nthe Maharaja to execute an agreement.\n\nThe directors could not use their power of declining to register the transfer under Art. I I for the purpose of forcing the State of Orissa to enter into the proposed agreement. Actually. the reason given at the trial was an afterthought. The Imperial Bank of India representing the Maharaja was pressing for registration of the transfer.\n\nBy its letter dated March 17. 1953, the company assured the Bank that the registration would be effected shortly. Nevertheless, on May\n\n16. 1953 the directors capriciously refused to register the transfer .\n\nThe power under Art. 11 to refuse registration of the trans fer is a discretionary power. The directors must exercise this power reasonably and in good faith. The Court can control their discretion if they act capriciously or in bad faith. The directors cannot refuse to register the transfer because the transferee will not enter into an agreement which the directors conceive it to be for the interests of the company.\n\nWe cannot accept the contention that the petition was liable to be dismissed because the State of Orissa had asked for registration in the name of the Secretary, Finance Department. No such objection was taken by the company, although it had taken numerous other objections. Moreover, by .Jetter dated December I,\n\n1953, Shri S. K. Manda], the attorney for the State of Orissa, had definitely called upon the company to record the name of the State as the owner of the shares in the share register. In spite of this letter. the company refused to make the necessary registration.\n\nThe Maharaja of Mayurbhanj has ceased to be the owner of the shares. The State of Orissa. is now their owner, and has the legal right to be a member of the company and is entitled to say that the company should recognise its membership and make an entry on the register of the fact of its becoming a member and its predecessor-in-title having ceased to be a member. The name of the State of Orissa has, without sufficient reason, been omitted from the register and there is default in not entering on the register the fact of the Maharaja having ceased to be a member.\n\nThe Court's jurisdiction under s. 38 is, therefore, attracted. The High Court rightly ordered the rectification in the exercise of its summary powers 11nder s. 38. The jurisdiction created by s. 38 is very beneficial and should be liberally exercised. We see no reason why the Court should deny the applicant relief under s. 38.\n\nThe directors of the appellant company on the most frivolous of objections have prevented the State of Orissa from becoming a\n\nSUPREMY. COt'liT REPORT/oi i 1966) SUPP. '.<·.n\n\nmember for the la<t 16 years. It is a matter of regret that justice has been obstructed so long. There is no merit in this appeal.\n\nThe appeal is dismissed with costs. The appellant comp;1ny do forthwith carry out the order of rectiflcation passed by the Courts below in case the order has not been carried out yet.\n\nAppeal dismissed.\n\n,..\n\n'.)\n\n';-\n\n.i j:\n\n' t", "total_entities": 45, "entities": [{"text": "INDIAN CHEMICAL PRODUCTS", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "INDIAN CHEMICAL PRODUCTS", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 69, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 83, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "R.S. 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{"document_id": "1966_1_387_392_EN", "year": 1966, "text": "ABHOY PADA SAHA\n\nv .\n\nbUDHlR KUMAR MONDAL\n\nMay 5, 1966\n\n[A. K. SARKAR, C. J .. J. R. MUDHOLKAR, R. S.\n\nBACHAWAT,\n\nJ M. SHELAT AND RAGHUBAR DAYAL, JJ.J\n\nContruction (Sohedn!ed Castes) 1950.\n\nPart 13, Item 40- \"Sunris excbudin§\" Sahns\", Scope of.\n\nC When item 40 of Part 13 of the Schedule to the Constitution\n\n(Scheduled Castes) Order, 1950, declared \"Sunris excluding Sahas\" as a Schduled Caste, it indicates that men of Sunri caste but not those\n\nvithin that caste who formed the smaller caste group of Sahas, are members of a Scheduled Caste. It does not indicate that Sahas are a caste distinct from the Sunri caste, nor was it intended to exclude from Sunris those members of that caste who bore the surname Saha.\n\n[391 A, D].\n\nTherefore, when the respondent challenged the election to the West Bengal Legislative A55embly, of the appellant who described himself as a member of the Sunri caste, on the g\"ound that he was a member of the Saha caste group but failed to prove the a1legation,\n\nit must be held that the appellant was a Sunri by caste and belonged to tho Scheduled caste specified in the item, even though he bore the surname Saha. [392 Dl\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 931 and 1149 of 1965.\n\nAppeals from the judgment and decree dated July 31, 1964 of the Calcutta High Court in Appeal from Original Decree No. 613 of 1962.\n\nN. C. Chatterjee, Ja11aradan Sharma, K. B.\n\nRohtagi and S. Ba/akrishnan, for the appellant (in C.A. No. 931 of 1965) and the respondent (in C. A. No. 1149 of 1965).\n\nD. N. Mukherjee, for the respondent (in C.A. No. 931 of 1965) and the appellant (in C.A. No. 1149 of 1965).\n\nThe Judgment of the Court was delivered by Sarkar, C.J. These appeals arise out of an election to a G seat in the West Bengal Legislative Assembly from the Khargram Murshidabad constitutency reserved for members of the Scheduled Castes.\n\nThe contestants at this election were Abhoy Pada Saha and Sudhir Kumar Monda]. Sudhir is admittedly a member of a Scheduled Caste.\n\nAbhoy Pada described himself in the nomination paper as \"a member of the Sunri caste which is a Scheduled H Caste\". Sudhir objected to this nomination contending that Abhoy Pada did not belong to any Scheduled Caste. The objection was rejected by the Returning Officer.\n\nAt the election which\n\nSUPREME MURT RF.PORTS\n\n(I 966) SUPP. 8.C.R.\n\nensued, Abhoy Pada secured 16,730 votes and Sudhir, 15,523 and A the former was consequently declared elected.\n\nSudhir then filed a petition challenging the validity of Abhoy Pad a 's election on various grounds.\n\nAt the hearing of the petition by the Election Tribunal, however, he challenged the clcction only on the ground that Abhoy Pada was a member of the Saha JI caste and not a member of a Scheduled Oiste. The Election Tribunal rejected this conlen1ion and dismissed the petition. Sudhir then appealed to the High Court at Calcutta which reversed the decision of the Tribunal and declared the election of Abhoy Pada invalid and set it a'ide on the ground that he did not belong to a Scheduled Caste.\n\nIn his petition Sudhir had further claimed that he should be declared elected in the place of the appellant if the C latter's election was found to be invalid. This prayer. however, was rejected by the High Court. These two appeals are from the judgment of the High Court.\n\nAppeal No. 931 of 1965 is by Abhoy Pada.\n\nHe challenges the validity of the order of the High Court setting aside his election.\n\nAppeal No. 1149 of 1965 is by Sudhir and he challenges the valicl:ty of the order of the High D Court rejecting his prayer to be declared elected.\n\nWe shall first deal with Appeal No. 931 of 1965 filed by Abhoy Pada and shall hereafter refer to him as the appellant and Sudhir as the respondent.\n\nArt. 332 of the Constitution provides that seats shall be reserved for the Scheduled Castes in the Legislative Assembly of every State. Art. 341 gives power to the President to specify by E\n\npublic notificaticn the castes or parts of or groups within castes which shall for the purpose of the Constitution be deemed to be Scheduled Castes.\n\nThe President, on August 10, 1950, passed the Constitution (Scheduled Castes) Order, 1950 under Art. 341 setting out in its schedule the various castes which were declared Scheduled Castes.\n\nThis Order was amended from time to time by statutes passed by Parliament and it is agreed that at the relevant F time Item 40 of Part 13 of the schedule to the Order which set out which were Scheduled Castes in West Bengal stood as follows: \"Sunri excluding Saha\". Item 40 and some other items of the. schedule were made applicable to the State of West Bengal except the Purulia District and the territories transferred from Purnea District of Bihar and it is w; th this item that we are concerned.\n\nThe question is, whether the appellant was a member of the Sche- C: dulcd Caste specified in this item.\n\nIn the election petition. the respondent had stated that the appellant. was a member of the Saha caste and not a member of any Schedule Caste.\n\nIt was said that this showed that the respondent's case was that the appellant belonged to an independent caste which P. had nothing to do with Sunri caste and that it was, therefore, not open to him at the trial to contend, as he appears to have done,\n\nA '\n\nAllHOY PADA \"· 8UDHIR KUMAR (Sarkar, 0. J.) 389\n\nthat the appellant was a Sunri by caste but was excluded from the Scheduled Caste group because he belonged to a smaller caste group of Sunirs known as Sahas. We are unable to take this strict view of the pleading. The petition may, in our opinion, be reasonably read as stating that the appellant was a member of the Saha caste, a smaller caste group within the bigger caste group of Sunirs and was for that reason not a member of the Scheduled Caste specified in item 40.\n\nWe also observe that this reading of the petition which was accepted by the Election Tribunal, did not cause an)I surprise to the appellant at the trial or result in any injustice. The High Court also read the petition in the same way.\n\nIn our view, it was open to the respondent to show that the appellant belonged to the Saha caste group within the Sunri caste group and did not, therefore, belong to the Schedule Caste specified in item 40 as he claimed.\n\nThe Tribunal rejected the respondent's case that the Sunri caste was divided into certain groups of which the Sahas formed one. It came to the conclusion that the Sahas originally belonged to the Sunri caste but for a long time past they had formed themselves into a different caste which had no connection with the Sunris.\n\nIt is not very clear whether the Tribunal thought that the Sahas were originally a smaller caste group within the Sunri caste group or were only distinguished from the other Sunris by their surname.\n\nWe are, however, inclined to think that the Tribunal thought that the Sahas were originally a smaller caste group within the Sunri caste because it rejected a contention advanced by the respondent that item 40 excluded from Sunirs those who bore the surname Saha observing that the names given in the schedule to the Order all referred to castes, subcastes or groups. It found that the evidence clearly established that the appellant belonged to the Sunri caste-a fact which appears to have been admitted by the respondent-and, therefore, did not belong to the independent caste which according to the Tribunal, the Sahas have formed for a long time past.\n\nJn that view of the matter, the Tribunal held the appellant to be a Sunri and a person belonging to the Schedule Caste specified in item 40 and, therefore, dismissed the election petition.\n\nIt took the view that item 40 had excluded Sahas from Sunirs by way of abundant caut; on. so that the Sahas who had originally belonged to the Sunri caste but had long ago severed all connections with it and developed into a distinct and independent caste, might not claim, by virtue of their origin, to belong to the Sunri caste stated in the item.\n\nIn the High Court P. N. Mookerjee, J. observed that the Tribunal had gone wrong in considering the Sahas as an independent caste. He said that the expression \"excluding\" denoted that the Sahas contemplated would, but for this word, have come within the Sunri caste.\n\nHe held that the Sahas formed \"a group within the Sunri caste be it a sub-caste strictly so called or other-\n\n. 390 ·. \\ '\n\n/ >\n\nSUPRE~IE COURT REPORTS [19G6j SUPP. 8.C.R.\n\n........ ---·---•: wise\"<\" He also held that the evidence did not establish that the A Sahas\" formed a subcaste strictly so called within the Sunri _caste or a caste wholly independent of the Sµnri caste .. His conclusion was that the expression \"excluding Saha\" referred to those Sunris who bore the surname Saha irrespective of whether they belonged to. a sub-easte strictly so called, of Sunris or not. The learned Judge; therefore, held that as the appellant bore the surname Saha, B he did not belong to the Scheduled Caste specified in item 40 though he was a Sumi. The other learned Judge, Basu, J .· held that the words \"parts or _groups within castes\" in Art. 341 were wide enough to refer to any determinate part of a caste distinguished by a surname or otherwise and it was not necessary that such part must I\\ecessarily form a sub-caste. He halsoh held thadt th, e a evidence broadly supported \"the conclusion t at t e respon ent s . family belongs to the Saha sub-caste or . group within the Sunri\n\n\"caste\" .. .The learned Judge however, appears to have set aside the decision ofthe Tribunal and directed the election of lhe appellant to be set aside on the ground that the appellant; bore the surname ·- Saha and was thereby excluded from the Scheduled. Caste specified in item 40 for he said \"these Saha families, within the fold of D Sunri caste, distinguished themselves by their surname, whatever might be their other characteristics\" and have come to form a class apart from the rest of the Sunris.\n\nNow, the point in issue is, whether the appellant satisfied the description \"Sunri excluding Saha\" in item 40 of the President's Order.· To decide that point, the description has first to be pro- E perly interpreted and understocd. As we have said. the Tribunal thought that the Sahas formed a -distinct caste wholly outside the Sunri caste and they had been specifically excluded in item 40 for greater safety o prevent them from c; laiming to be Sunris by reason of their origin. The learned Judges of the High Court thought that the effect of the item was to exclude from the Sunri caste those who belonged to.that caste but bore the surpame Saha. We are unable P to agree with either of these interpretations.\n\nThere is no doubt that Sunri is a caste.\n\nNobody disputes that.\n\nThat also follows from the fact that the Constitution (Scheduled Castes) Order. 1950 was promulgated to indicate those castes who are to be considered as Scheduled Castes for the purpose of the Constitution. \"Sunri\" in item 40, therefore. refers to a caste. If G\n\nSunri is a caite. the word 'Saha' in the expression \"excluding Saha\" in the item must, without more; also refer to a caste group within the Sunri caste. It is legitimate to think that when a statute says that a thing is to be excluded from another, both things are of the same kind; if one is a caste. the other must be a caste. It follows that when the item excluded Sahas from Sunris, since Sunri is a H caste group, Saha must equally be another caste group. The Tribunal appears to have taken the sa!T1e view. Now a thing can be\n\n.ABHOY P.AD\"' v; SUDHJR KUMAR (Sarkar, o. J.) 391\n\nA excluded from another only if it was otherwise within it. Therefore, the correct interpretation of the item is that it indicates men of the Sunri caste but not those within that caste who formed the . smaller caste group of Sahas. This is where the Tribunal went .wrong.\n\nThe Tribunal crune to its conclusion that \"Saha\" in the item referred to a caste distinct from the Sunri caste because the evidence before it did not show that there was within the Sunri caste, a smaller caste group called Sahas. The error of the Tribunal lay in interpreting the' Order in the light of the evidence before it. :There was no justification for doing that. Afterall, the evidence Jed in a case may be imperfect. Suppose the evidence in another case led to the conclusion, as it might conceivably do, that. there was a smaller easte group within the Sunri caste, called Sahas. In that case, if the reasoning applied by the Tribunal is' right, it has to be held that the expression \"excluding Saha\" meant excluding a smaller caste group called Sahas. A method of interpreting a statutory provision which might lead to such. uncertainty, cannot be correct. If the correct interpretation of item 40 was, as we thinkit was, that Sahas were a caste group within the Sunri caste, no question of Sahas being a distinct class independent of Sunris .could arise. The finding that Sahas . were a wholly independent caste. was altogether. irrelevant to the point in issue. Evidence cannot alter the natural interpretation of the words in the Order.\n\n_ For the same reason, we are unable to agree with the interpretation of the High Court that the Sahas excluded were those Sunris who bore the surname Saha. _We think the learned. Judges of the High Court also interpreted item 40 in the light of the evidence in the case. If the intention was to exclude from Sunris those members of that caste who bore the surname Saha, the item would have said so; it would then have read \"Sunri excluding those who bore the surname Saha\". In the absence of such words \"Saha\" must, in the context, be understood as referring to a smaller caste group within the bigger caste group of Sunris. Surname is irrelevant as a test for applying item 40 unless it is shown that it indicated a smaller caste group of Sunris. It is nobody's case that there is evidence to show that. It is of interest to remind in the connection that the Oder provides that the Sunris in the Purulia District G . and those parts of the Purnea District which had been transferred . to West Bengal were not to be considered as belonging to a Scheduled Caste. That would show that where the exclusion is by a test other than a caste group, the Order expressly says so. It is natural to think that if the excluded Sahas were those Sunris who bore the surname Saha, the Order would have made that clear. In\n\nH our opinion, the learned Judges of the High Court were in error in interpreting the item on the evidence in the case as they appear to have done. ·\n\nL[S5SCI-27\n\n39:!\n\nScPl<F.MF. COURT REPORTS [1966] SUPP. s.c.R.\n\nIf we are right in our interpretation of item 40, then the only .l question that has to be decided in this case is, whether the respon dent has established that the appellant belonged to a smaller caste group called Sahas \"ithin the Sunri caste.\n\nThis question presents no difficulty.\n\nThe respondent called witnesses to establish that the appellant belonged to the smaller caste group of Sahas.\n\nThese witnesses were disbelieved by the Tribunal which described them as unreliable. P.N. Mo<'kerjce. J. said, \"it has not been proved that the respondent (appellant herel belonged to any separate Saha caste or to any Saha ... sunri sub, aste of the Sunri caste\".\n\nThough Ilasu, J. said that the appellant belonged to the Saha group of Sunris, it would appear that h~ was thinking of that group as consisting of those Sunris who bore the surname Saha.\n\nAll the courts in West Bengal, thcrdore. came to the conclusion that it had not been prov ed in this case that the appellant belonged to the smaller caste group of Saha>.\n\nWe have no reason to take a different view of the evidence.\n\nThe result then is. that the appellant is a Sunri by caste and has not been proved to belong to the smaller caste group of Sahas.\n\nHe must be held to belong to the Scheduled Caste specified in item 40.\n\nThat being so, the election petition must fail.\n\nAccordingly, wc allow Appeal No. 931 of 1965 and set aside the judgment of the High Court and restore that of the Election Tribunal dismissing the petition.\n\nThe appellant will get the costs throughout.\n\nIn the view that we have taken in Appeal No. 931 of 1965, the other appeal must necessarily be dismissed and we, therefore, dis miss it with costs.\n\nOne set of hearing: fees only.\n\nAppeal No. 931 of 1965 al/oweti.\n\nAppeal No. 1149 of 1965 dismissed.", "total_entities": 15, "entities": [{"text": "ABHOY PADA SAHA", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "ABHOY PADA SAHA", "offset_not_found": false}}, {"text": "bUDHlR KUMAR MONDAL\n", "label": "RESPONDENT", "start_char": 22, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "SUDHIR KUMAR MONDAL", "offset_not_found": false}}, {"text": "A. 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{"document_id": "1966_1_38_45_EN", "year": 1966, "text": "NARANDAS MOKARDAS GAZIWALA It ORS.\n\nS. P. AM. PAPAMMAL & ANR.\n\nMarch 25, 1966\n\n(K. SUBBA RAO AND V. RAMASWAM!, JJ.J\n\nPrincipal and Agent-Whether Agent can sue Principal for ren dition of accounts.\n\nIndian Evidence Act, 1872, s. 92, Proviso 3-0ral agreement not to enforce promisso711 note till certain conditions precedent fulfilled-\n\nSuch oral agreement whether can be proved.\n\nAn agent sued his principals for rendition of accounts for the period of the agency. The principals alw filed a suit claiming enforcement of a promissory note the agent had executed in their favour.\n\nThe agent pleaded an oral agreement by which the prmeipals were not to enforce the promissory note during the period of the agency and unless the sum remained due and payable after accounting. The trial court granted a decree on the promissory note b11t directed that it should be adjusted against any sum found due after accounting in the agent's suit. The principals went to the High Court and failing there appealed to this Court. It was contended on behalf of the appellants that (1) an agent was not entitled in law to sue his principal for accounts and (2) the parole agreement could not be proved in view of s. 92 of the lndian Evidence Act.\n\nHELD: (i) Though an agent has no statutory right .for an account from his principal, nevertheless there may be special circumlltances rendering it equitable that the principal should account to the agent. Such a case may arise when all the accounts are in the possession of the principal and the agent does not possess account. to enable him to determine his claim for commission against his principal. The right of the agent ma'' also arise in an exceptional case when his remuneration depends on the extent of dealings which are not known to him or where he cannot be aware of the extent of the amount due to him unless the accounts of his principal are gone into. In the special circumstances of the present case the agent was entitled to sue his principals for accounts for the material period.\n\n(42 H D-E]\n\n(ii) The parole agreement relied on in the case was a collateral agreement and was not related to the mode of discharge of the obligation under the promissory note. It was a condition precedent to the enforceability of the promissory note and therefore evidence of oral G agreement could be adduced under the 3rd proviso to s. 92 of the Evidenc~ Act. ( 43H-44B]\n\nCase law referred to.\n\nOVJL APPELLATE JuRISD!CTION : Civil Appeals Nos. 177 and 178 of 1964.\n\nAppeals by special leave from the judgment and decree dated H December 20, I 960, of the Madras High Court in Appeals Nos. 45 and 202 of I 957.\n\n_,' I < I\n\nN. M. GAZIWALA v. PAl'AMM.lL (Ramaswr1mi, J.) :19\n\nA S. V. Gupte, Solicitor-General. B. Datta. J. B. Dadachanji, for\n\nthe appellants.\n\nS. T. Desai and R. Gopalakrishnan, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nRamaswami, J. These appeals are brought, by special leave, from the judgment and decree of the Madras High Court dated September 20, 1961 in A.S. Nos. 45 and 202 of 1957.\n\nNarandas Morardas Gaziwala and Lakshmi Chand & Co. were two firms of partnership carrying on business in lace and sil ver thread at Surat in the State of Bombay. They had dealings with another firm at Kumbakonam-Krishna and Company-who acted as their agents for selling their goods in the three districts of Tanjore, Tiruchirapalli and Mathurai in the State of Madras on commission basis. The two partners of Krishna & Co. were Murugesa Chettiar and his wife's sister's husband Gopal Chettiar. It appears that Krishna & Co. was acting as commission agents on behalf of the two firms at Surat from 1944 till 1951 when the part nership of Krishna & Co. became dissolved by mutual agreement between the partners. Murugesa Chettiar, one of the partners of Krishna & Co. took over all the assets and liabilities of the firtn on dissolution and the other partner Gopal Chettiar retired from the firm. In respect of the dealings of the two firms at Surat (hereinafter to be referred to as the Surat Firm) with Krishna & Co., the latter became indebted in 1951. On April I, 1951 Murugesa Chettiar (hereinafter referred to as the plaintiff) executed a promissory note in favour of Narandas Morardas Gaziwala for a sum of Rs. 7,500/- the amount ascertained as due and payable by Krishna & Co. in respect of the dealings of that firm with the Surat firm on a settlement of account. It is the case of the plaintiff that on April I, 1951 the Surat firm constituted Murugesa Chettiar as the sole agent for selling their goods bearing the trade mark -Napoleon\" ...... Vivekanada\" and other marks for the three districts for a period of 5 years from April I, 1951 agreein~ to pay commission at a flat rate of Rs. 2 /- per 'mark' for all sales effected in those territories either on orders booked by him or not. The case of the plaintiff was that the Surat firm circumvented the terms of this contract of sole agency and privately effected sales through others or direct to customers in those territories. The plaintiff's contention further was that the Surat firm as part of this agreement of sole agency agreed to have its indebtedness under the promissory note adjusted towards the commission that may be earned by him. The plaintiff therefore instituted O.S. No. 87 ol 1954 in the District Munsif's Court, Kancheepuram praying for rendition of accounts from April 1, 1951 till the date of the suit in order to ascertain the amount due and payable to him. The Surat\n\nLS5SCI-5\n\n,0 SUPREllE COURT REPORTS (1966] St:PP. S.C, R.\n\nA firm in its turn instituted 0.S. no. 21of1954 in the court of Subordinate Judge, Chingleput against the plaintiff seeking to recover the amount due under the promissory note, viz .. a sum of Rs. 7.500i-\n\nBy an order of the District Court, Chingleput O.S. no. 87 of 1954 on the file of District Munsif, Kancheepuram was transferred to the file of the Subordinate Judge, Chingleput and taken on his file as O.S. no. 35 of 1955. Both the suits were tried together by con- B sent of parties. On December 12, 1956 the Subordinate Judge held that the plaintiff was constituted as the sole agent on commission basis for the three territories, Tanjore, Tiruchirappalli and Madurai for a periC'd of 5 years as pleaded and proved by him and the Surat firm was liable to render an account of their sales in those\n\nterritories from April I, 1951 and accordingly granted a preliminary decree for rendition of accounts. In O.S. no. 21 of 1954 the c\n\nSubordinate Judge granted a decree for the amount covered by the promissory note but directed that the decretal amount should be adjusted out of the commission that may be found due and payable on taking of accounts in 0.S. no. 35 of 1955. The Surat firm preferred an appeal against the decree in O.S. no. 21of1954- D A.S. no. 45 of 1957. They also preferred an appeal agains~ the decree in 0.S. 35 of 1955 to the District Court of Chingleput and that appeal was transferred to the High Caurt and heard along with A.S. no. 45 of 1957. The High Court, by its judgment dated September 20, 1961. dismissed both the appeals.\n\nThe first question presented for determination in these appeals is whether the plaintiff is entitled to sue for account~. he being the E agent and the defendant-Surat firm being the principal. Section 213 of the Indian Contract Act specifically provides th:lt an agent is bound to render proper accounts to his principal on demand. The principal's right to sue an agent for rendition of accounts is, therefore, recognised by the statute. But the question is whether an agent can ue the principal for accounts. There is no such provision in the Indian Contract Act. In our opinion. the statute is not exhaus- F tive and the right of the agent to sue the principal for accounts is an equitable right arising under special circumstances and is not a statutory right.\n\nIn English law n agent has a right to have an accaunt taken, and where the accounts are of a simple nature they can be taken in an ordinary action in the Queen's Bench Division (Halsbury's Laws G of England, Vol. I, p. 196). In Bowstead on Agency, 12th Edn., p.\n\nJ 73 it is observed as follows:\n\n\"Where the accounts between a principal and agent are of so complicated a nature that they cannot be satisfactorily dealt with in an action at law, the agent has a right to have an account taken in equity, but the relation of principal and agent H is not alone sufficient to entitle an agent to an account in equity, when the matter can be dealt with in an section at law.\"\n\n\\ I\n\n-~ ,,\n\n~ • ill\n\n,;;.._\n\n' •\n\nIn the 14th edition of Story's Equity Jurisprudence, the leaned anthor, after setting out the general law that an agent 1s not enl!tled to sue his principal for accounts, observes as follows:\n\n\"There are usually exceptions to all rules, and where the principal has kept the accounts between him and his agent and the matters and things transacted in the course of the agency are within his own peculiar knowledge, the agent may ask for accounting.\"\n\nIn 1852 it was held in Padwick v. Stanley(') that merely because the principal was entitled to have an account taken in equity as against his agent, it by no means followed that the agent had a similar right against his principal. Notwithstanding this ruling a suit by an agent against his principal for accounts was entertained by the Vice Chancellor in Shepard v. Brown.(') In that case, the plaintiff alleg ed that he was employed by the defendants to obtain orders for goods manufactured by them and that he was to be allowed re muneration in the shape of commission upon the amount of all goods sold under orders which were obtained through his efforts.\n\nThe plaintiff sought an account of all orders received and executed by the defendants through his exertions and to have it ascertained how much was payable t; i him for commission in respect of the goods so sold. The Vice-Chancellor overruled the demurrer that the plaintiff might recover in an action the whole amount of that commission which he was seeking to recover by account in the Equity Court and observed as follows :\n\n\"Where the case of the plaintiff is one in which he seeks an account of transactions and dealings with the defendants, the evidence of which transactions must remain principally, it not entirely, in the hands of the defendants, it is extremely diffi. cult to say that, upon a bill seeking an account of that kind upon a case so stated, this Court has no jurisdiction to entertain it.\"\n\nThe very next year the Appeal Court in Chancery ruled that a bill for an account in equity by an agent against his principal for his commission on orders obtained by the agent was demurrable. It was held in Smith v. Leveaux(') that the fa.ct that the agent may be ignorant of the orders did not entitle him to file a bill for an account of what was due to him for commission, but that his remedy was at law. According to Lord Justice Turner, in the absence of an allegation as to complication of accounts, the bill could not be entertained in equity. The remedy at law was not however doubted, though that remedy was not as efficacious as the equitable remedy in matters of account. But the principle was affirmed by the Vice-Chancellor\n\n(') 68 E.R. 664.\n\nL,'S5SOl-5(a)\n\n(') 46 E.R. 274.\n\n(') 66 E.R. 681.\n\n42 Sl'PREME COURT REPORTS [J!l66) , l'PP, d, C.11.\n\nagain in a later case, Blyth v. Whifjin, (') that the agent can. main- A tain a bill in equity agairst his principc; l for an account in special circumstances. It was observed by the Vice-Chancellor in that case:\n\n\"With regard to that question, whether an agent can maintain a bill agJinst his principal for an account, it is not necessary to go further than to say I entertain no doubt on the subject ............ if there are complicated accounts it is just as much open to the suit of the agent against the principal as on the part of the principJI against the agent; but in neither case is it to be permitted unless there be a complicated account.\"\n\nThe right of an agent to claim an account against the princ; pal for the commission due to him on orders received by his principal from the customers introduced by the agent was recognised also in Bullen & Leake's Precedents of Pleadings, I Ith Edn. at pp. 71-72.\n\nIn our opinion, the legal position in India is not <lifferent.\n\nThough an agent has no statutory right for an account from his principal. nevertheless there may be special circumstances rendering it equitable that the principal should account to the agent. Such a case may arise where all the accounts are in the possession of the principal and the agent does not possess accounts to enable him to determine his claim for commission against his principa I. The right of the agent may also ar'se in an exceptional case where his remuneration depends on the extent of dealings which are not known to him or where he cannot be aware of the extent of the amount due to him un'ess the accounts of his pr'ncipal are gone into. This view is borne out by the decision of the Madras High Court in Ramachandra Madhavadoss Co. v. Mool'llkat Moid1111k1mi Bira11k1111i & Bros. Firm. Ca1111anore('). of the Lahore High Court in Ram Lal Kapur & Sons v. Asian Commercial Assurane C<>. Ltd.(') and of the Kagpur High Court in Basant Kumar and others v.\n\nRoslianla/('). In the present case the High Court has found that the transactions in respect of which the plaintiff is entitled to commission arc peculiarly within the knowledge of the principal alone. viz .. of the Surat firm. There is also prima facie evidence adduced on behalf of the plaintiff in this case in support of his allegation that the Surat firm had made direct sales to customers in contravention of the contract of sole agency granted to the pJa; ntiff. The High Court referred in this connection to the evidence of the plaintiff-\n\nEs. A-26 and A-28--which are complaints made by the plaintiff to the Surat firm with regard to direct sales made to Mr. M. K. Iyengar.\n\nThe High Court has also observed that to none of the letters or telegrams from the plaintiff the Surat firm or their accredited representative Ratilal cared to send any reply. We are, therefore, of the\n\nI') (172) 271 .. r.R. 330. (') A.l.H. 1938 Mnd. 707.\n\n(') A.1.IL 19'.l~ Lah. ~1:':( (4; l.L.IL [1964] !\\agpur 43.i.\n\n' . •\n\nI '\n\nopinion that, in the special circumstances of this case, te plaintiff is entitled to sue the Surat firm for accounts for the material penod.\n\nWe proceed to consider the next question involved in this case viz. whether the plaintiff is entitled to set up a perole agreement to prove the condition precedent as to the enforceability of the promissory note. The argument cf the Solicitor-General on behalf of the Surat firm is that the p1aintiff is precluded from setting up a parole agreement by reason of the provisions of s. 92 of the Evidence Act which states:\n\n\"92. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting. varying, adding to, or subtracting from, its terms:\n\nProviso (])\n\nProviso (2)\n\nProviso (3) The existence of any separate oral agreement, E constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.\n\nIt was submitted by the Solicitor-General that the High Court has F found that there is an agreement between the parties that the promissory note should be discharged by commissicn payable by the Surat firm. It was contended that the agreement was with regard to the mode of discharge of the obligation of promissory note and not a condition precedent to its enforceability. It was therefore argued that the bar under s. 92 of the Evidence Act operates and the plaintiff was not entitled to adduce any evidence with regard to a G parole agreement. The contention was that the promissory note represented in law an unconditional undertaking to pay an amount which the plaintiff was already under a liability to pay and it was not open to him in law to plead a contemporaneous oral agreement contrary to the terms of that undertaking. We are unable to accept the submission of the Solicitor-General as correct. The finding of the High Court is that there was a collateral oral agreement that H the obligation under the promissory note will not be enforced for 5 years and unless the amount was due after accounting for the period of the commission agency. In our opinion, the agreement was\n\nH SUPllEKE OOURT REPORTS jl 966] BUPP. 8.C.R.\n\nnot r~Iated to the mode of discharge of the obligation under the A promissory note but tha~ it was a condition precedent to the enforceabihty of the promissory note and it is open to the plaintiff to adduce. eVIdence of oral a_greement under the 3rd proviso to s. 92 of the ~idence Act. I.he View tht we have taken is borne out by the decsi?n of the Judicial Committee in Rowland Ady and others\n\nv. Admm1strator-G7neral of f!u; ma('). In that case it was observed by B -<- the Jud1c1al Commlltce that It is necessary to distinguish a collateral agreement which alters the legal effect of the instrument from an agreement that the instrument should not be an effective instrument until some condition is fulfilled, or. to put it in another form, it is necessary to distinguish an agreement in defcasance of the contract from an agreement suspending the coming into force of the conc tract contained in the promissory note. It was therefore held by the Judicial Committee in that case that where the promissory note is, by its express terms. payable on demand, that is at once, the obligation under the note attaches immediately. A collateral oral agreement not to make demand until a certain specified condition is fufilled has the intention and effect of suspending the coming into force of that obligation. which is the contract contained in the pro- D missory note. Such an oral agreement constitutes a condition precedent to the attaching of the obligation and is within the terms of Proviso 3 of s. 92 of the Evidence Act. On the facts of that casei the Judicial Committee held that by terms of the oral agreement no liability under the note could arise until the happening of an event and that being so. the case fell within the 3rd proviso to s. 92 of the Evidence Act. It was further made clear that unless the agreement E had the effect of making the liability conditional upon the happening of an event. proof of an oral agreement at variance with the •• terms of the note would not be permitted. At page 202 of the Report, Lord Wright observed as follows:\n\n\"A case like the present is to be distinguished from that dealt with in Ramjibun Serowgy v. Oghore Nath Chatterjee- F ,. l.L.R. 25 Cal. 401.-in which the promissory note, though absolute in ils terms. was said to be subject to an oral agreement, providing that it was not to be enforceable by suit until the happening of a particular event. Sale J., in rejecting this evi- • dencc. expressed his opinion that the proper meaning of Proviso (3) was that the contemporaneous oral agreement to be admissible must be to the effect that a written contract was to G be of no force at all and was to constitute no obligatic; n until the happening of a certain event. This description in their ..\n\nLordships' judgment applies to the present case. To the same ~· effect Page J .. in Walter Mitchell v. A. K. Tennent-I.LR. 52 Cal. 677.-held that the collateral agreement alleged in that case constituted a condition precedent to the attachment of any obligation under the cheques in question so that they remained inoperative until the condition was fulfilled.\" H\n\n('I A.I.R. 10:.s P.C. 19\".\n\nMl In that present case also we are of opinion that the oral agreement found to have been proved by the High Court constituted a condition precedent to the attaching of the obligation under the promissory note and falls within the terms of the 3rd proviso to s. 92 of the evidence Act and it was, therefore, open to the plaintiff to lead evidence and to prove such an oral agreement.\n\nFor the reasons expressed we hold that the judgment of the Madras High Court is correct and both these appeals must bs dismissed with costs.\n\nAppeal.~ dismissed.", "total_entities": 18, "entities": [{"text": "NARANDAS MOKARDAS GAZIWALA It", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "NARANDAS MOKARDAS GAZIWALA & ORS", "offset_not_found": false}}, {"text": "S. 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{"document_id": "1966_1_393_400_EN", "year": 1966, "text": "RAMCHANDRA AGGARWAL AND ANR.\n\nv .\n\nSTATE OF UTTAR PRADESH & ANR.\n\nMay 5, 1966\n\n[J. R. MUDHOLKAR AND V. RAMASWAMI, JJ.J\n\nCode of Criminal Procedure (Act 5 of 1898), s. 146 (1)-Reference by Magistrate to Civil Court-If to a persona designata.\n\nCode of Civil' Procedure (Act 5 of 1908), s. 24-Ju, risdiction of District Judge to transfer reference from one Civi! Court to another.\n\nUnder s. 146(1), Criminal Procedure Code, a Magistrate referred to a Civil Court of competent jurisdiction the auestion as to 'Nhich of the parties was, at the relevant point of time, in posse'5ion of the\n\nsubject-matter of dispute in a proceeding under s. 145 Cr. P.C. Under s. 24, Civil Procedure Code, the District Judge transferred the reference to another Civil Court. It \"as contended that the District Judge acted v:1thout jurisdiction because (i) the reference was to a persona designata; andl (ii) the provisions of C.P.C. did not apply to the proceeding as it was not a proceeding in a court of Civil jurisdiction within the meaning of s. 141, C.P.C.\n\nHELD: (i) Where a special or local statute refers to a constituted court as a court and does not refer to the presiding officer o.f the court, the reference cannot be said to be to a persona desi'gnata. The power under s. 146(1) is not to refer the matter to the presiding J udgE of a Civil Court, but to a court. [396A-Cl\n\n(ii} The provisions of the Civil Procedure Code apply generally to a proceeding before a civil court arising out of a reference made by a Magistrate under s. 146(1) Cr. P.C. r399 E-Fl\n\nAdaikappa Chettiar v. Chanwra, sekhara Thevar,\n\n74 I.A. 264, Mamg Ba Tha.w v. Ma Pin, 61 I.A. 158 and South Asia Industris\n\n(P) Ltd. v. S. B. Sarup Singh, [1965] 2 S.C.R. 756 applied.\n\nSection 24 C.P.C., refers to \"other proceeding in any court subordinate to it\" and not to a civil proceeding pending before a sul:- ordina te court. The term \"proceeding\" is comprehensive enough to include all matters coming up for judicial adjudication and' is not confined to civi1 proceedings alone, and therefore, there is no need to invoke s. 141, V.P.C. [399 F-Hl\n\nObiter: The proceeding before the civil court is a civil proceeding as contemplated by s. 141 C.P.C. [398 F-H] A proceeding stemming from a criminal matter does not alv.rays bear the stamp of a criminal proceeding. r397 D-El Sri Sheonath Prasad v. City Magistrate, Varanasi, A.IR. 1959 All. 467, disapproved.\n\nThe Magistrate •.vhen he refers the question to a civil court, does not confer a part of his criminal jurisdiction upon the civil court.\n\nUnder s. 146(1D}, Cr.P.C., neither an appeal nor a revision lies against the finding of the civil court in the reference, because of the express provision and not because theproceeding before the civil court is not a civil proceeding, [398 A-CJ\n\n394 st:PRE>!E COUll'r REPORTS\n\n(1966] SUPP, S.C.R,\n\nCRJMJ!'-IAL APPELLATE JURISDICTION: Criminal Appeal No. 113 .&. of 1965.\n\nAppeal from lhe judgment and order dated October 26. 1964 of the Allahabad High Court in Criminal Revision No. 803 of 1963.\n\nJ. P. Goyal, for the appellants.\n\n0. P. Rana and Atiqur Rehman. for respondent No. I.\n\nS. K. Mehta and K. L. Mehta, for respondent No. 2.\n\nB. R. L. Iyengar and B. R. G. K. Achar, for the Intervener.\n\nThe Judgment of the Court was delivered by Mudholkar, J, The only point which falls to be decided in this appeal by certificate granted by the High Court at Allahabad is whether the District Judge has jurisdiction under s. 24 of the Code of Civil Procedure to transfer a reference made by a Magistrate to a particular civil court under s. 146 of the Code of Criminal Procedure to another civil court. It arises this way.\n\nProceedings under s. 145, Cr. P.C. were initiated by a Magistrate on the basis of a report of a police officer to the effect that a dispute likely to cause a breach of the peace existconcerning a plot of land situate within the jurisdiction of the Magistrate between the parties mentioned in the report and praying for appropriate action under s. 145 of the Code of Criminal Procedure. The learned Magistrate upon being satisfied about the possib; lity nf a breach of the peace made a preliminary order under s. 145. Cr. P.C .. attached the property to which the dispute related and called upon the parties to adduce evidence in respect of their respective claims.\n\nIn due course he recorded the evidence but he was unable to make up his mind as to which of the parties was in possession on the date of the preliminary order and within two months thereof.\n\nHe, therefore, referred the case under s. 146([) of the Cr. P. C. to a civil court for decision as to which of the parties was in possession at the material point of time and in the meanwhile directed that the attachment of the property shall continue.\n\nThe reference went to the court of the Munsiff within whose territorial jurisdiction the property was situate.\n\nBut thereafter one of the parties Brij Gopal Binani, respondent No. 2 before us, made an application to the District Judge under s. 24, C.P.C. for transfer of the case to some other court.\n\nThe ground\n\nven was that in the execution case out of which proceedings under s. 145, Cr.P.C. had arisen the same Munsiff had made an order against him depriving him of costs.\n\nThe Munsiff having no objection to the transfer the District Judge transferred the case to the court of another Munsiff.\n\nThe opposite parties, that is, the appellants before us Ram Chandra Aggarwal and Kcdar Prasad Aggarwal acquiesced in the order of transfer and did not raise any question as to the jurisdiction of the transferee court to hear and decide the reference.\n\nEventually evidence was led by both sides and a lnding given by the transferee court. This finding was in favour\n\nG ·---.\n\nUMOKANDU •. u. P. STATF (Mudho!kar, J.) 395\n\nof the second respondent. After receiving the finding the learned Magistrate heard the parties and held that it was the second respondent who was in possession at the relevant date and passed an order under s. 145(6), Cr. P.C. pursuant thereto.\n\nA revision application was preferred by the appellants before the court of Sessions in which the objection was taken for the first time that the decision of the civil court was a nullity because it had no territorial jurisdiction over the subject-matter of the dispute. It was further contended that the District Judge had no jurisdiction to transfer the case and that consequently the ultimate order made by the learned Magistrate was a nullity. The learned Additional Sessions Judge who heard the revision application rejected these contentions on the ground that they were not raised earlier. The appellants then took the matter to the High Court in revision.\n\nThe appellants rested their revision application on the sole ground that s. 24, C.P.C. was not available in respect of a reference under s. 146(1), Cr. P.C. and that, therefore, the proceedings subsequent to the transfer of the reference from the court of one Munsiff to that of another are a nullity. The High Court permitted the point to be urged. The attack was based upon two grounds: that the reference under s. 146(1), Cr. P.C. was to a persona designata and that the provisions of s. 24, C.P.C. were not available with respect to it.\n\nThe second ground was that the proceeding before the civil court was not a civil proceeding within the meaning of s. 141, C.P .C. The High Court negatived both the grounds on which the contention was based.\n\nOn behalf of the appellants Mr. Goyal has reiterated both the contentions. In fairness to Mr. Goyal it must be said that his attack on the order of the District Judge transferring the case under s. 24. C.P.C. was based more on the ground that the reference under s. 146(1) Cr. P.C. is not a civil proceeding than on the ground that the reference was to a persona designata.\n\nHowever, as he did not wish to abandon the other point we must deal with it even though Mr. B. R. L. Iyengar who appears for the State conceded that a reference under s. 146(1) is to a constituted court and not to a persona designata.\n\nIn Balakrishna Udayar v. Vasudeva Aiyar(') Lord Atkinson has pointed out the difference between a persona designata and a legal tribunal. The difference is in this that the \"determinatons of a persona designata are not to be treated as judgments of a legal tribunal\". In the Central Talkies Ltd. v. Dwarka Prasad(') this Court has accepted the meaning given to the expression persona designata in Osborn's Concise Law Dictionary, 4th edn. p. 263 as \"a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class. or as filling a particular character.\" Section 146(]) Cr. P.C. empowers a Magis-\n\n. -- --·-·-<·· ~\n\n(1) 44 I.A. 261.\n\n(')'[1961]'3 S.C.R. 495; 500..:..IOJ,\n\n~-- ·-.\n\n3D6\n\nSUPRE~IE COURT REPORTS\n\n(1966] SUPP. 6.C.P.:\n\n--~----· ~---\n\ntr; te to refer the quesiion as to whether any, and if so, which of the parties was in possession of the subject-.matter of dispute at the relevant point of time to a civil court of competent jurisdiction.\n\nThe power is not to refer the. matter to the presiding .Judge of a particular civil court but to a court. When a special or local law provides for an adjudication to be made by a constituted court-. that is, by a court not created by a special or local law but to an existing courtit in fa9t enlarges the ordinary jurisdiction of sue~ a court. Thus where a special or local statute refers to a constt-· tuted court as a court and does not refer to the presiding officer of that court the reference cannot be said to be to a persona design'!ja.\n\nThis question .is well settled. It is, therefore, unnecessary to. say anything more on this part of the case except that cases dealing with the point have been well summarised in the.recent decision in Chatur'Mohan v. Ram Behari Dixit.(').\n\nNow, as to the argument based on the ground that the pro-: ceeding before the chdl court is not a civil proceeding, Mr. Goyal's contention is that . since the proceeding before the criminal. court under s. 145 is a criminal proceeding any matter arising out of it, including a reference to a civil court, does not lose its initial character of a criminal proceeding. In support of his contention he has placed strong reliance upon the-observations of Jagdish-Sahai J., in Sri Sheonath Prasad. v. City Magistrate, Varanasi.(') In that case the learned Judge was called upon to consider the meaning of the expression. \"civil court of competent jurisdition\" occurring in s. 146(!) of the Code of Criminal Procedure. It was contended before him that the competency of the court is to be determineJ not merely with respect to the territorial jurisdiction of the court but also with respect to its pecuniary jurisdiction. The question arose because it was contended before him that the finding on a question of possession was recorded by a civil court which though it had territorial jurisdiction over the subject matter of the dispute the value of the subject matter was in excess of the pecuniary jurisdiction of the court. In the course of his judgment the learned Judge has observed: \"that a proceeding even on reference made to a civil court retains its old moorings and does not change•its character from a criminal proceeding to a civil proceeding and does not become a proceeding in the suit.\" Then he went on .to .Point ol!t\n\nthat the criminal court still retains its jurisdiction becau;; e it :could withdraw the reference from the civil court at anf time and. al.>o G because the ultimate decision .with the respect to th.e dispute ,, bet~ ·\n\nween the parties was to be made by the Magistrate arid not bv the. civil court. All this, according to the learned Judge, \\Vould show that the proceeding even before the civil. court would.not be a civil proceeding and the idea of pecuniary jurisdiction of a court being foreign t.o the Code of Criminal Procedure it was not 'necessary to\n\n(') 1964 AU. L. J 2.l6. · -- - (')-A.I.R. 1059 All. 467. • ·- ·\n\nl\\ .. MCHA1'1JRA \"· u. P. STA1'E (illudholhrt, J.) 397\n\nascertain whether the court to which a reference was made under s. 146(1) Cr. P.C. had pecuniary jurisdiction over the subject matter of the dispute or not. This decision ignores the vast body of authority which is to the effect that when a legal right is in dispute and the ordinary courts of the country are seized of such d; spute the courts are governed by the ordinary rules of procedure applicable to them.\n\nTwo of the decisions are Adaikappa Chettiar v.\n\nChandrasekhara Theyar(') and Maung Ba Thaw v. Ma Pin(') and also a decision of this Court which proceeds upon the same view.\n\nThus in South Asia Industries (P) Ltd. v. S. B. Sarup Singh(') it was held that where a statute confers a right of appeal from the order of a tribunal to the High Court without any limitation thereon the appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court. We would also like to refer to the decision of this Court in Narayan Row v. lsinvarlal(') in which it was held that there is no reason for restricting the expression \"civil proceeding\" only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits.\n\nThough this decision was concerned with the meaning of the words\n\n\"civil proceeding\" used in Art. I 33(1)(c) of the Constitution the reasoning behind it sufficiently repels the extreme contention of Mr. Goyal that a proceeding stemming from a criminal matter must always bear the stamp of a criminal proceeding. Then. according to Mr. Goyal, when a magistrate refers a question as to which party was in possession at the relevant date what he dces is to delegate that duty, initially resting upon him. to the civil court. In performing that duty the civil court would, therefore, be acting as a criminal court .inst as the magistrate would be doing where he has to decide the question himself.\n\nThe two Privy Council decisions we have referred to sufficiently answer this contention. No doubt, the Magistrate. while discharging his function under the Code of Criminal Procedure under s. 145(1), would be exercising his criminal jurisdiction because that is the only kind of jurisdiction which the Code confers upon the magistrates but when the magistrate refers the question to a civil court he does not confer a part of his criminal jurisdiction upon the civil court. There is no provision under which he can clothe a court or a tribunal which is not specified in the Criminal Procedure Code with criminal jurisdic . tion .. We: are, therefore. unable to accept the contention of Mr.\n\n.Goyal. ·\n\nMr. Iyengar tried to put the matter in a somewhat different way.\n\nIn the first place. aceording to him. if we h61d that the proceeding before the civil court is a civil proceeding then all the mies of procedure contained in the Civil Procedure Code. including those relating to appeals or revision would apply to the proceeding. This.\n\n·- ··· - (lJ 74·1.A. ~Ut. ·----(')-irn:a: JM: . .. .. ·\n\n(') [1965] 2 S.Q, J>,,.}~. _\n\n_ (') .U.R. 1950 S.C. 1818.\n\nBIJl'RBlU COURT REPORTS\n\n(1966] BUPP. S.0.R.\n\nhe points out, would be contrary to the provisions of s. 146(1-Dl of A the Code of Criminal Procedure which bar an appeal, review or revision from any finding of the civil court. From this he wants us to infer that the proceeding docs not take the character of a civil proceeding even though it takes place before a civil court.\n\nWe are not impressed by this argument. If sub-s. 0-D) had not been enacted (and this is really a new provision) an appeal or revision application would have been maintainable.\n\nNow that it is there, the only efiect of it is that neither an appeal nor a revision is any longer maintainable. This consequence ensues because of the express provision and not because the proceeding before the civil court is not a civil proceeding.\n\nThe next contention-and it was the one pressed strenuously C by him-was that a proceeding upon a reference under s. 146(1) entertained by a civil court not being an original proceeding the provisions of s. 141. C.P.C. are not attracted and that, therefore. those provisions of the Civil Procedure Code which relate to suits are not applicable to a proceeding undertaken by a civil court upon a reference to it under s. 146(1) of the Code of Criminal Procedure.\n\nA number of cases dealing with this point were brought to our notice either by him or by Mr. Goyal. It seems to us, however, that those cases are not relevant for deciding the point which is before us.\n\nIn passing, however, we may mention the fact that a full bench of the Allahabad High Court has held in Maha Ram v. l/arbans(') that the civil court to which an issue on the question of proprietary rights has been submitted by a revenue court under s. 271 of the Agra Tenancy Act, 1926 has jurisdiction to refer the issue to arbitration under paragraph I of Schedule II of the C.P.C.\n\nThis decision is based upon the view that by virtue of s. 141, C.P.C. the provisions relating to arbitration contained in the second schedule to the Code of Civil Procedure before the repeal of that schedule applied to a proceeding of this kind. Similarly recently this Court has held in Munshi Ram v. Ba11wari/a/(') that under s. 41 of the Arbitration Act and also under s. 141. C.P.C. it was competent to the court before which an award made by an arbitration tribunal is filed for passing a decree in terms thereof to permit parties to compmmise their dispute under 0. XXIll, r: 3, C.P.C.\n\nThough there is no discussion, this Court has acted upon the view that the expression \"civil proceeding\" in s. 141 is not necessarily\n\nconfined to an original proceeding like a suit or an application for appointment of a guardian etc., but that it applies also to a proceeding which is not an original proceeding. Thus, though we say that it is not necessary to consider in this case whether the procecdmg before the civil court is a civil proceeding as contemplated by\n\n8. 141 or not there is good authority for saying that it is a civil proceeding. All that we are concerned with in this case is whether\n\n(')\"J.L.11. [19'1] AD. Illa.\n\nC') J.L.11. 1002 s.e. llllll.\n\nRAMC!L<NDP.A 1'. u. P. STATE (Mwl.hollcar, J.) 399\n\nA the provisions of s. 24(1)(b) of the Code of Civil Procedure are\n\navailable with respect to a proceeding arising out of a reference under s. 146(1), Cr. P.C. The relevant portion of s. 24 may, therefore, be set out. It reads thus:\n\n\"On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-\n\n(a)\n\n(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and\n\n(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or\n\n(iii)\n\nIt plainly speaks of \"other proceeding pending in any court subordinate to it\" and not only to the civil proceeding pending before a subordinate court. The decisions of the Privy Council and one decision of this Court which we have earlier quoted would warrant the application of the provisions of the Code of Civil Procedure generally to a proceeding before a civil court arising out of a reference to it by a Magistrate under s. 146(1) of the Code of Crin1inal Procedure. The expression \"proceeding\" used in this section is not a term of art which has acquired a definite meaning. What its meaning is when it occurs in a particular statute or a provision of a statute will have to be ascertained by looking at the relevant statute. Looking to the context in which the word has been used in s. 24(J)(b) of the Code of Civil Procedure it would appear to us to be something going on in a court in relation to the adjudication of a dispute other than a suit or an appeal.\n\nBearing in mind that the term \"proceeding\" indicates something in which business is conducted according to a prescribed mode it would be only right to give it, as used in the aforesaid provision, a comprehensive meaning so as to include within it all matters coming up for judicial adjudication and not to confine it to a civil proceeding alone. In a recent case Kochadai Naidu v. Nagavasami Naidu(') Ramachandra Iyer J., (as he then was) was called upon to consider the very question which arises before us. The learned Judge held\n\n(') I.L.}I. [l96IJ; M•d. 413.\n\nSUPRElil COURT REPORTS [1966] euPP. e.c.R.\n\nthat a proceeding before a civil court arising out of a reference to A it under s. 146(1), Cr. P.C. can be transferred by the High Court or District Court under s. 24, C.P.C. because it is in any case a\n\n'proceeding\". He has also considered this question from the an!tle . of the nature of the proceeding and expressed the view that the B proceeding was a civil proceeding to which the procedure for suits could, with the aid of s. 141, C.P.C. be applied. If indeed the term \"proceeding\" in s. 24 is not confined to a c; vil proceeding there is no need whatsoever of taking the aid of s. 141, C.P.C.\n\nC Vpon this view we dismiss.the appeal.\n\nAppeal dismissed.", "total_entities": 86, "entities": [{"text": "RAMCHANDRA AGGARWAL AND ANR", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "RAMCHANDRA AGGARWAL AND ANR", "offset_not_found": false}}, {"text": "STATE OF UTTAR PRADESH & ANR", "label": "RESPONDENT", "start_char": 35, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTTAR PRADESH & ANR", "offset_not_found": false}}, {"text": "R. MUDHOLKAR", "label": "JUDGE", "start_char": 83, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "J.R. MUDHOLKAR*", "offset_not_found": false}}, {"text": "V. RAMASWAMI, JJ", "label": "JUDGE", "start_char": 100, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "V. 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{"document_id": "1966_1_401_418_EN", "year": 1966, "text": "' .\n\nSTATE OF JAMMU AND KASHMIR\n\nBAKSHI GHULAM MOHAMMAD\n\nMay 6, 1966\n\n[A. K. SARKAR, C.J., J. R. MUDHOLKAR, R. S. BACHAWAT,\n\nJ. M. SHELAT AND RAGHUBAR DAYAL, JJ.]\n\nConstitution of Jammu and Kashmir, s. 37-Jammu and Kashmir Commission of Inquiry Act 1962, ss. 3, 4(c) and 10-Acts of a Minister while in office, whether can be subject of inquiry under Inquiry Act-S. 37 of Constitution whether a bar to such inquiry- Matters of public importance' and 'definite' in s. 3, meaning of-Affidavits fil.ed before Commission of Inquiry-Right to cross examine deponents, extent of.\n\nThe first respondent became a member of the Council of Minister' of the State of Jammu and Kashmir in 1947 and was the Prime Minister of the State from 1953 to January 1963, when he resigned: Thereafter a Notification was issued by the State Government under s. 3 of the Jammu and Kashmir Commission of Inquiry Act 1962 setting up a Commission to inquire into the wealth, acquired by the first respondent and certain specjfied members of his family during his period of office; the commission: was also to inquire whether in acquiring this wealth there was any abuse of his official position by the first respondent or the said relatives. The Commiss; on so appointed held certain sittings between February 1965 and August 1965 in which the first respondent took part. In September 1965 he filed a writ petition before the High Court of J ammu and Kashmir and the High Court, al'Iowing the sa!d petition, set aside the Notification instituting the inquiry and quashed the proceedings of the Commission. The State appealed to the Court.\n\nHELD: (i) Section 37 of the Constitution of Jammu and Kashmir talks of the collec1Jcve responsibility of Ministers to the Legislative Assembly. That' only means that the Council of Ministers will have to stand or fall together, every member being responsible for the action of any other. The section does not mean that a Minister is p responsible for his acts only to the Legislature and no action can be taken against. him except for criminal or tortious acts, in th€ ordinary course of law, unless the Legislature by a resolution demanded it. No British convention to this effect, if any, can be said to have been adopted bv s. 37. Furthermore, the responsibility to the Legislature is of the Counoil of Ministers, and not of these who have, like the first respondent ceased to be Ministers. [405C, E].\n\n(ii) Section 3 Of the Commission of foquiry Act expressly &ives G ·power to Government as well as to both the Houses of Legislature\n\nto initiate .. action instituting an inquiry. When: enacting it the Legislature obviously did not consider that there was any conveption, or anything in s. 37 which prevented a Commission of Inquiry being set up under the Act at the instance of the Government or the Legislative Council. [405F-G]\n\n(iii) The acts of a Minister while in office do not cease to be matters of public :mportance after he ceases to hold office; their character cannot change. When. it is alleged that a Minister h8' acquired vast wealth for himself and his friends by abuse of his offi- . ,, c\\aJ'. position, there can .be po question that.the matter is of .public\n\n• •. ! ': ,,_\n\nSUPRE:.IE COURT REPORTS\n\n[1966] SUPP, S.C.R.\n\nimportance. h does not cease to be of. public importance merely A because what 1s pro)l05ed JS to mqmre mto allegations and not into the steps to be taken. to prevent lapses in the future. Nor can absence of pub!1c ag1tat1on show that the facts to be inquired into are not of public importance. [40iE-G; 408-G]\n\nRam Krishan Dalmia v. Shri Justice S.\n\nTendo!kar, [1959] S.C.R. 279, referred to.\n\n(.iv) It is incorrect to say that• allegations mentioned are not definite or that an inquiry into them is not contemplated by the Inquiry Act. [ 409E-F]\n\n(v) It cannot be inferred from the provisions of s. 10 of the Act that a Commission of Inquiry can inquire into the conduct of a person only mr1dcntally, when the mam inquiry is in respect of something else. What can be done indirectly should obviously have been considered capube of bting done directly. [411B]\n\n(vi) On the facts o.f the case the inquiry could not be said to be mala fide. [ 412F]\n\n(v1i) The doctrine of Cabinet responsibility does not mean that if an inquiry was made against one of the members of the Cabinet that would be discrimination under Art. 14. The respondent was in a class by himself and the classification was justified. [414A-Bl\n\n(viii) The ru!e of natural justice only requires that a hearing should be given. When the Commission refused permission to the first respondent to cross-examine all the witnesses who had filed affidavits against him no rule of natural justice was violated. [415G]\n\nMeenolas Tea Estate v. Their Workmen, [1964]2 S.C.R. 165 and Nacendra Nath Bora v. Commissioner of Hills Division & Appeals, Assum [1958] S.C.R 1240.\n\n(ix) Section 10 of the Act gives a right to cross-examine only thse persons who give viva voce evidence t efore the Commissioner.\n\n[ 416F]\n\n(x) Section 4(c) of the Act does not confer a right on a party appearing before the Commission to require a witness giving evidence by affidavit to be produced for his cross examination. The Commission v:ould, of course, permit crOGxamination in a case where it thinks tbt r.ecessary. [417E]\n\nCIVIL APPELLATE JUR!SD!CTIO~: Civil Appeal No. 1102 of 1966.\n\nAppeal from the judgment and order dated December 27. 1965 of the Jammu and Kashmir High Court in W. P. No. 67 of 1965.\n\nC. K. Daphtary, Attorney-General, S. V. Gupte, Solicitor- Genera/, Jaswant Singh, Advocate-General. for the State of J. & K.\n\nH. R. Khanna, S. Javali, Ravinder Narain, for the appellants.\n\nG B. Sen, /. N. Shro.ff, M. K. Banerjee. B. N. Kirpal, R. K. Kaul, R. N. Kaul. P. L. Handu, La/it Bliasin and T. R. Blimin. for respondent No. I.\n\nThe Judgment of the Court was delivered by Sarkar, C.J. This is an appeal by the State of Jammu and R Kashmir, G. M. Sadiq. Chief MinLter of that State and D. P.\n\nDhar, its Home Minister. The appeal is rontested by respondent\n\nI I\n\nA No. 1, Bakshi Ghulam Mohammad. The other respondent, N.\n\nRajagopala Ayyangar, a retired Judge of this Court, has not appeared in this Court or in the court below. These are the parties to the proceedings before us.\n\nAfter the accession of the State of Jammu and Kashmir to India in 1947, a responsible Government was set up there under the Prime Ministership of Shiekh Mohammad Abdulla. Bakshi Ghulam Muhammad was the Deputy Prime Minister in that Government and G. M. Sadiq was also in the Cabinet. In 1953 Sheikh Mohammad Abdulla was dismissed from office and a new Government was formed with Bakshi Ghulam Mohammad as the Prime Minister and G. M. Sadiq and D. P. Dhar were included in the Cabinet. On January 26, 1957, a new Constitution was framed for Jammu & Kashmir. In the first elections held under the Constitution, a party called the National Conference got the majority of votes. Bakshi Ghulam Mohammad and Sadiq were members of this party. A Ministry was then formed with Bakshi Ghulam Mohammad as the Prime Minister. It appears that G. M. Sadiq left the party sometime after 1957 and re-joined it along with D. P.\n\nDhar in December 1960 and they were taken into the Cabinet.\n\nThe next General Elections were held in 1962. Again, the National Conference Party came into power. In the Government that was formed, Bakshi Ghulam Mohammad became the Prime Minister and G. M. Sadiq and D. P. Dhar were taken in the Ministry. In September 1963, Bakshi Ghulam Mohammad resigned from the Ministry under what is called the Kamraj Plan and Shamsuddin became the Prime Minister in his place. It will be noticed that Bakshi Ghulam Mohammad was the Deputy Prime Minister of the State from 1947 to 1953 and its Prime Minister from 1953 to 1963.\n\nSo he held these offices, one after the other, for a total period of about sixteen years.\n\nIn February 1964, Shamsuddin left office and a new Government was formed with G. M. Sadiq as the Prime Minister. It is said that shortly thereafter, political rivalry between him and Bakshi Ghulam Mohammad started. In August 1964, a notice was issued fixing a session of the Legislature of the State in the following September. According to Bakshi Ghulam Mohammad, thereafter, some of the legislators wanted to bring in vote of no-confidence against G. M. Sadiq's Ministry and by September 21, 1964 the no-confidence motion had obtained the support of the majority of members of the Assembly. On September 22, 1964, at 5 o'clock in the morning, Bakshi Ghulam Mohammad and some of his supporters were arrested under the Defence of India Rules.\n\nAt 8.30 a.m. on the same day, the notice of the motion of no-confidence with the signatures of some members was handed over to the Secretary of the Legislative Assembly. G. M. Sadiq challenges the genuineness of the signatures on the notice of the motion and also denies that it had the support of a majority of the Assembly.\n\nAt 9 a.m. Lhe Legislative Assembly which was to meet on that day,\n\nIUPRlllll COURT REPORTS\n\n(1966) SUPP. 8.C.!t,\n\nwas prorogued by the Speaker under the directions of the Sadar-i- A Riyasat, the constitutional head of the State. Sometime in November 1964, a petition for a writ of habeas corpus for the release of Bakshi Ghulam Mohammad was presented to the High Court of Jammu and Kashmir. On December 15, 1964, before the petition could be heard and decided, Bakshi Ghulam Mohammad was released from arrest by the State Government. On January 30, 1965, B a Notification was issued by the State Government appointing a Commission of Inquiry constituted by N. Rajagopala Ayyangar to enquire into (!) the nature and extent of the assets and pecuniary resources of Bakshi Ghulam Mohammad and the members of his family and other relativeS mentioned in the first Schedule to the Order, in October 1947 and in October 1963; and (ii) whether during this period, Bakshi Ghulam Mohammad and the others C mentioned in the Schedule had obtained any assets and pecuniary resources or advantages by Bakshi Ghulam Mohammad abusin2 the official positions held by him or by the aforesaid people set out in the first Schedule by exploiting that position with his knowledge, consent and connivance. The Notification provided that in making the inquiry under head (ii) the Commission would examine only the allegations set out in the second Schedule to it. It is this Noti- D fication that has given rise to the present proceedings.\n\nThe Commission held certain sittings between February 1965 and August 1965 in which Bakshi Ghulam Mohammad took part.\n\nOn September I, 1965, Bakshi Ghulam Mohammad moved the High Court of Jammu and Kashmir uneer ss. 103 and 104 of the Constitution of Jammu and Kashmir, which correspond to Arts. 226 and 227 of the Indian Constitution, for a \\~Tit striking down the Notific:ilion and quashing the proceedings of the Commission taken till then and for certain other reliefs to which it is not necessary to refer. The petition was heard by a Bench of three learned Judges of the High Court. The High Court allowed the petition, set aside the Notification and quashed the proceedings of the Commission. This appeal is against the judgment of the High Court. In the Jligh Court, eight grounds had been advanced in support of the petition. three of which were rejected but the rest were accepted, some unanimously and some by the majority of the learned Judges. They have however not all been pressed in this Court.\n\nThe Notification had been issued under the Jammu & Kashmir Commission of Inquiry Act. 1962. The first point taken was that the Notification was not justified by the Act because under the G Jammu & Kashmir Constitution. a Minister was responsible for his acts only to the Legislature and no action could be taken against him except for criminal and tortious acts in the ordinary courts of law. unless the Legislature by a resolution demanded it.\n\nThe substance or this contention is that an inouiry cannot be directed under the Act into the actions of a Minister except at the H instance of the Legislature, it cannot be directed by an order of the Government. This contention is based on s. 37 of the Jammu\n\n•· '\n\nJ '/\n\nJ. & I'.. STATE v. BAKSHI (Sirkar, c. J.) 405\n\n& Kashmir Constitution. That section states that the Council of Ministers shall be collectively responsible to the Legislative Assembly. It is contended that this implies that in no other way is a Minister responsible for anything that he does when in office. It is also said that that is the convention in Britain and it has been adopted in the State of Jammu & Kashmir.\n\nWe confess to a certain amount of difficulty in appreciating this argument. The point about the British convention need not detain us. It has not been shown that any such convention, even if it exists in England, as to which we say nothing, has been adopted in the State of Jammu & Kashmir. The Jammu & Kashmir Constitution is a written document and we can only be guided by its provisions. It is said that s. 37 indicates that the British convention was adopted by the State of Jammu & Kashmir. We are unable to agree with this view. Section 37 talks of collective responsibility of Ministers to the Legislative Assembly. That only means that the Council of Ministers will have to stand or fall together, every member being resp0nsible for the action of any other. The emphasis is on collective responsibility as distinguished from individual responsibility. The only way that a legislature can effectively enforce this responsibility of the Council of Ministers to it is by voting it out of office. Furthermore, this responsibility is of the Council of Ministers. Bakshi Ghulam Mohammad did not, at the date of the Notification, belong to that Council. He did not on that date owe any responsibility to the Legislature under s. 37.\n\nThat section has no application to this case. Again s. 3 of the Inquiry Act states, \"The Government may ......... and shall ........ .if a resolution in this behalf is passed by the Jam mu & Kashmir State Legislative Assembly or the Jammu & Kashmir Legislative Council by notification ......... appoint a Commission of Inquiry\". It would, therefore, appear that the Act gave power to the Government to set up a Commission and also to both the Houses of the Legislature to require a Commission to be set up. It is important to note that even the Legislative Council has a right to get a Commission appointed though s. 37 of the Constitution does not say anything about the responsibility of the Ministers to that Council.\n\nThe Act was passed by the State Legislature consisting of both the Houses. It would show that the Legislature did not consider that there was any convention or anything in s. 37 which prevented a Commission of Inquiry being set up under the Act at the instance of the Government or the Legislative Council. The High Court had rejected this contention and we think that it did so rightly.\n\nThe next point urged in support of the petition was that the Act permitted a Commission to be set up for making an inquiry into a definite matter of public importance and the matters which H the Commission had been set up to inquire into were not such.\n\nThis contention found favour with all the learned Judges of the High Court. We are, however, unable to accept it. It is true that\n\n8UPRKlll: COURT 1lEPORTS\n\n(1966) 8Ul'P, 8.C..11..\n\na Commission can be set up only to inquire into a definite matter A of public importance. But we think that the matters into which the Commission was asked to inquire were such matters. The first inquiry was as to the assets possessed by Bakshi Ghulam Mohammad and the other persons mentioned in the Notification, in October 1947 and in October 1963 and the second was whether during this period being the sixteen years when he held office as Prime B Minister and Deputy Prime Minister. he and the other persons named had obtained any asset' or pecuniary advantage by abuse of his official position or by that position being exploited by the others with his consent, knowledge or connivance, this inquiry being confined only to the instances set out in the second Schedule to the Notification. That Schedule contains 38 instances, the first of which. in substance, repeats the second head of inquiry earlier C mentioned. The other items refer to individual instances of people being made to part with property under pressure brought upon them by abuse of official position and of public money being misappropriated. At the end of this Schedule, there is a note stating that the gravamen of the charge was that Bakshi Ghulam Mohammad abused his official position and the other persons named, exploited that position with his consent, knowledge or connivance D in committing the acts whereby they acquired vast wealth. The inquiry was, therefore, into the assets possessed by Bakshi Ghulam Mohammad and the persons named, respectively in October 1947 and in October 1963 and to find out whether they had during this period acquired wealth by the several acts mentioned in the second Schedule by abuse or exploitation of Bakshi Ghulam Mohammad's official position.\n\nThe first question is, whether these arc matters of public importance. Two of the learned Judges held that they were not and the third took the contrary view. This was put on two grounds.\n\nFirst, it was said that these matters were not of public importance because they had to be so at the date of the Notification and they were not so on that date as Bakshi Ghulam Mohammad did not F then hold any oflice in the Government. It was next said that there was no evidence of p!lblic agitation in respect of the conduct complained of and this showed that they were not matters of public importance. We do not think that either of these grounds leads to the view that the matters were not of public importance. As regards the first. it is difficult to imagine how a Commission can be set up by a Council of Ministers to inquire into the acts of its G head, the Prime Minister. while he is in office. It certainly would be a most unusual thing to happen. If the rest of the Council of Ministers resolves to have any inquiry, the Prime Minister can be expected to ask for their resignation. In any case, he would himself go out. If he takes the first course. then no Commission would be set up for the Ministers wanting the inquiry would have gone. If H he went out himself, then the Commission would be set up to inquire into the acts of a person who was no longer in office and\n\n• . /\n\nJ /\n\nfor that reason, if the learned Judges of the High Court were right, into matters which were not of public importance.\n\nThe result would be that the acts of a Prime Minister could never be inquired into under the Act. We find it extremely difficult to accept that view.\n\nThese learned Judges of the High Court expressed the view that the acts of Bakshi Ghulam Mohammad would have been acts of public importance if he was in office but they ceased to be so as he was out of office when the Notification was issued. In taking this view, they appear to have based themselves on the observation made by this Court in Ram Krishan Dalmia v. Shri Justice S. R. Tendolkar(') that \"the conduct of an individual may assume such a dangerous proportion and may so prejudicially affect or threaten to affect the public we1I-being as to make such conduct a definite matter of public importance, urgently calling for a full inquiry\". The learned Judges felt that since Bakshi Ghulam Mohammad was out of office, he had become innocuous; apparently, it was felt that he could no longer threaten the public wellbeing by his acts and so was outside the observation in Dalmia's case. We are clear in our mind that this is a misreading of this Court's observation. This Court, as the learned Judges themselves noticed, was not laying down an exhaustive definition of matters of public importance. What is to be inquired into in any case are necessarily past acts and it is because they have already affected the public well-being or their effect might do so, that they became matters of public importance. It is irrelevant whether the person who committed those ac!s is still in power to be able to repeat them.\n\nThe inquiry need not necessarily be into his capacity to do again what he has already done and it may well be into what he has done. The fact that Bakshi Ghulam Mohammad is no longer in office does not affect he question whether his acts already done constitute matters of public importance. If once it is admitted, as it was done before us, that if he had been in office his acts would have been matters of public importance, that would be ackno\\I( !edging that his acts were of this character. His resignation from office cannot change that character. A Minister, of course. holds a public office. His acts are necessarily public acts if they arise out of his office. If they are grave enough, they would be matters of public importance. When it is alleged that a Minister has acquired vast wealth for himself, his relations and friends, as is done here, by abuse of his official position, there can be no question that the matter is of public importance.\n\nIt was said that the object of inquiry was to collect material for the prosecution of Bakshi Ghulam Mohammad and, therefore. the matters to be inquired into were not of public importance.\n\nThis contention is, in our view. fallacious. It is of public importance that public men failing in their duty should be called upon\n\nI') [1950] ~.C.R. 279.\n\nL1S5SCI-.. 28\n\n408 StJPREl!E COURT REPORT!\n\n(1966] SL,.P. S.C.R.\n\nto face the consequences. It is certainly a matter of importance to the public that lapses on the part of the Ministers should be exposed. The cleanliness of public life in which the public should be vitally interested, must be a matter of public importance. The people are entitled to know whether they have entrusted their affairs to an unworthy man. It is said that the Notification did not mention anything about the steps to be taken to prevent recurrence of the lapses in future. But that it could not do. Before the facts were found steps could not be thought of, for the steps had to suit the facts. The inquiry proposed in this case will, in the course of finding out the lapses alleged, find out the rocess as to how they occurred and it is only after the process is known that steps can be devised to meet them.\n\nIt was also contended that the inquiry was into allegations of misconduct against Bakshi Ghulam Mohammad and an inquiry into allegations was not contemplated by the Inquiry Act. We are wholly unable to agree. An inquiry usually is into a question. That question may arise on allegations made. Dalmia's case(') dealt with an inquiry ordered at least in part into allegations made against people in charge of a big mercantile enterprise. Allegations may very well raise questions of great public importance. Suppose it is alleged that people in a city are suffering from ill-health and that that is due to the contaminated water supplied by the city administration. It cannot be said that these allegations about the existence of poor health and its causes are not matters of grave public importance. They would be so even if it was found that the people's health was not poor and the water was not contaminated. It cannot also be said that allegations can never be definite. They can be as definite as any existing concrete matter. It must depend on what the allegation is.\n\nThen as to the question whether the allegations against Bakshi Ghulam Mohammad were not matters of public importance because there was no public agitation over them. The Notification itself and the affidavits filed in this case on behalf of the appellants in fact state that there had been allegations made by the public against Bakshi Ghulam Mohammad that he had amassed a large fortune by the misuse of his office. But it was said that there was no proof that the allegations had actually been made.\n\nWhether there was proof would depend on whether the statements in the Notification and the affidavits were accepted or not. We are. however, unable to agree that a matter cannot be of public importance unless there was public agitation over it. Public may not be aware of the gravity of the situation. They may not know the facts.\n\nSome members of the public may be aware of individual cases but the entire public may not know all of them. There may have been influences working to prevent public agitation. Again, whe-\n\n'l [t959l 8.C.ll. 279.\n\n• -...\n\n'>.~.\n\n, J, & IL 8'1'ATE v. BAKSHI (Sarkar, c. J.) 409\n\nther a matter is of public importance or not has to be decided essentially from its intrinsic nature. If a matter is intrinsically of public importance, it does not cease to be so because the public did not agitate over it. Take this case. Suppose the Government sets up a Commission to inquire into the mineral wealth in our country. The public are not likely to agitate over this matter for they would not know about the mineral wealth at all. Can it be said that the inquiry does nC>t relate to a matter of public importance because they did not agitate over it? The answer must plainly be in the negative. This would be so whether there were in fact minerals or not. Considering the a!Iegations contained in the Notification by themselves, we think for the reasons earlier mentioned, that they constitute matters of public importance even if there was no public agitation over them. It was said that G. M. Sadiq, D. P.\n\nDhar and various other people had praised the administration of Bakshi Ghulam Mohammad. That they no doubt did. But these were speeches made in support of party politics. They might again have been made without knowledge of full facts. They cannot, in any event, turn a matter of public importance into one not of that character.\n\nIt was then pointed out that the Notification only mentioned that the matters were of public importance but did not say that they were definite matters of public importance. The Act, as we have earlier pointed out, requires that the matters to be inquired into shall be definite matters of public importance. But this omission of the word \"definite\" in the Notification does not, in our E th op'nion, make any difference. A Court can decide whether e matters to be inquired into are definite matters of public impor tance. 'Definite' in this connection means something which is not vague. One of the learned J u.dges of the High Court held that the matters set out in the second Schedule were vague as some of the instances did not give any date or year. He also said that the note F at the end of the second Schedule, to which we have earlier referred, added to the vagueness. We are unable to accede to this view.\n\nWhat the learned Judge had in mind was apparently the particulars of the acts. In most cases, the acts are identifiable from the particulars given in the second Schedule in respect of them. Further, it is obvious that they had to be identified at the hearing and could not be proved nor any notice taken of them unless that G was done. It does not appear to have been contended before the Commission that there was any matter not so identifiable. Neither do we think that the note drawing attention to the gravamen of the charges at the end of the second schedule indicates any indefiniteness. In most of the allegations it had been expressly stated that the act was done by the misuse of Bakshi Ghulam Mohammad's H official position and by his permitting others to exploit that-it is this which made the matters, matters of public importance-and\n\nit was for greater safety that the note was appended so that no L/S5SOI-28( a I\n\n~CPREKY. COPRT RF.PORTS [J9e6j\n\n~L\"PP. 8.C.R.\n\ndoubt was left as to lhe gravamen of the charge in each of allegations made.\n\nThe next point against the validitv of the Notification based on s. I 0 of the Act which is in these terms: -\n\n\"I 0. I I) If at any stage of the inquiry the Commission considers it necessary to inquire into -the conduct of any person or is of opinion that the reputation of any person is likely to be prejudicially effected by the inquiry, the Commission shall give to that person a reasonable opporlunity of being heard in the inquiry and producing evidence in his defence;\n\nProvided that nothing in this sub-section shall apply when the credit of a wilness is being impeached.\n\n(2) The Government, every person referred to in sub-section (I) and with the permission of the Commission. any other person whose evidence is recorded by the Commission: -\n\n(a) may crosscxamine any pc1son appearing before\n\nthe\n\nwas\n\nthe Commission other than a person produced n by it or him as a witness. lb) may address the Commis, ion. (3)\n\nIt was contended that 1t showed that an inquiry may be made under the Act into the conduct of a person only incidentally, that is to say, it can be made only when that becomes necessary in E connection with an inquiry into something else. It was, therefore, contended that the present inquiry which was directly into the conduct of Bakshi Ghulam Mohammac1 was outside the scope of the Acl. It was also said that s. IO gives a statutory form to the rules of natural justice and provides for the application of such rules only in the case when a person's conduct comes up for inquiry by the Commission incidentally. It was then said that the F Act could not have conlemplatcd an inquiry direclly into the conduct of an individual since ii did not provide specifically that he should have the right to be he:ud. the right h> cross-examine and the right 10 lead evidence which were given by s. I 0 to the person whose conduct came to be inquired into incidentally. We arc unable to accept this view of s. 10. Section 3 which permits a Commission of Inquiry 10 be appointed is wide enough to cover an G inquiry into lhe conduct of any individual. It could nol be a natural reading of the Act tn cut down the scope of s. 3 by an implication drawn from s. 10. We also 1hink 1hat this argument is illfounded for we are unable to agree th al s. I 0 docs not apply to a person whose conduct comes up direclly for inquiry before a Commission set up under s. :1.\n\nWe find nothing in the words of H s. IO to justify !hat view. If a Commission is set up to inquire dircclly into the conduct of a person. the Commission must find\n\n• \"\n\nJ. & K. STATE°{. BAKSJII (darka, r, c . .l.) 411\n\nit necessary to inquire into that conduct and such a person would, therefore, be one covered by s. 10. It would be strange indeed if the Act provided for rights of a person whose conduct incidentally came to be enquired into but did not do so in the case of persons whose conduct has directly to be inquired into under the order setting up the Commission. It would be equally strange if the Act contemplated the conduct of a person being inquired into incidentally and not directly. What can be done indirectly should obviously have been considered capable of being done directly. We find no justification for accepting the reading of the Act which learned counsel for Bakshi Ghulam Mohammad suggests.\n\nThe next attack on the Notification was that it had been c issued ma/a fide.\n\nOne of the learned Judges of the High Court expressly rejected this contention and the others also seem to have been of the same view for they did not accept it. We find no reason to accept it either. In that view of the matter, we consider it unnecessary to discuss this aspect of the case in great detail. We have set out the broad events of the case and it is on them that the case of ma/a fide is based. It is not in dispute that for some time past D there was political rivalry between Bakshi Ghulam Mohammad and G. M. Sadiq. It was also said that there was personal animosity because G. M. S0 :!iq wanted to advance the interest of his relatives and followers by ousting persons belonging to Bakshi Ghulam Mohammad's group in various fields. This allegation of personal animosity cannot be said to have been established. It is really on the political rivalry and the events happening since Sep- E !ember 21, 1964 that the allegation of male fide is founded.\n\nIt was said that the steps taken since the arrest of Bakshi Ghulam Mohammad down to the setting up of the Commission of Inquiry were all taken with the intention of driving him out of the political life so that G. M. Sadiq would have no rival as a political leader.\n\nFirst, as to the arrest. The case of Bakshi Ghulam Mohammad was that the arrest was mala fide. On the other side, it was said that F since about July 1964 various allegations of abuse of power by Bakshi Ghulam Mohammad some of which formed the subject matter of inquiry, had come to the notice of the Government and thereupon investigations were started by the Criminal Investigation Department at the instance of the Government. In order to stop the investigation Bakshi Ghulam Mohammad and his followers started rowdyism and other form of breaches of law and order G endangering public safety and maintenance of public order. It was pointed out that the situation in Kashmir had not been easy for some time past due to the hostile intentions of Pakistan and China and breach of law and order added to the seriousness of the position. It was said that for these reasons Bakshi Ghulam Mohammad had to be arrested and detained under the Defence of India Rules.\n\nH It was said on behalf of Bakshi Ghulam Mohammad that prior to the arrest, a no confidence motion had been sponsored and had actually gathered in volume and the arrest was made to stultify\n\n8UPREl4E COURT REPORTS [1966) Sl!PP. 8.0.R.\n\nit. What support the no confidence motion had we do not know.\n\nIt would appear however that the Criminal Investigation Department had been making inquiries against Bakshi Ghulam Mohammad's acts for some time past and the situation in Kashmir was inflammable. In those circumstances, it cannot be said that Bakshi Ghulam Mohammad's arrest was ma/a fide.\n\nHe was no doubt released from arrest after a petition had been moved for his release and before the petition was heard. It was said that he was released because the Government found that the petition was bound to succeed. We have no material before us on which we can say that the petition was bound to succeed. On behalf of G. M. Sadiq and D. P. Dhar it was said that he was released because of ill-health.\n\nThis does not appear to have been denied. It was also said on behalf ol. G. M. Sadiq that the investigation having been completed there was no cause for Bakshi Ghulam Mohammad to instigate breaches of law and order and therefore it was not necessaril to keep him in detention any longer. On the evidence before us, we are unable to say that the case made by G. M. Sadiq cannot be accepted. As to the prorogation of the Assembly, it is said by the appellants that it was necessary because it was apprehended that if the Assembly met, there might have been trouble inside the House created by Bakshi Ghulam Mohammad's followers who resented the arrest. On the materials before us, we arc unable to say that this apprehension was pretended. It was also said by the appellants that the prorogation had been decided upon before the arrest of Bakshi Ghulam Mohammad but the order could not be passed because the Sadar-i-Riyasat was out of Srinagar from before September 15, 1964 when both the arrest and prorogation had been decided upon and did not return there till some time on September 21, 1964. The fact that the Sadar-i-Riyasal returned on that date is not denied. As we have said, the arrest and the prorogation took place on the next day, that is, September 22, 1964. Bakshi Ghulam Mohammad was released on December 15, 1964 and the Notification challenged was issued on January 30, 1965. On these facts, we are unable to hold that Bakshi Ghulam Mohammad has been able to establish that the inquiry had been set up ma/a fide owing to political rivalry.\n\nIt has been said on behalf of the appellants that there could\n\nbe no politi::al rivalry because, as appears from Bakshi Ghulam Mohammau s own affidavit, he had declared his intention to retire from politks. On behalf of Bakshi Ghulam Mohammad it was (l stated that G. M. Sadiq had made a statement that he would be released after a Commission of Inquiry was set up and this would show that the detention was ma/a fide and that would indicate that the Notification had also been issued ma/a fide.\n\nThat statement is not before us. On behalf of G. M. Sadiq it was said that such a statement had not been made and what had been said was B that he would be released after the completion of investigation by the Criminal Investigation Department as thereafter, there\n\n.•.\n\n_,,\n\nJ. & K. STATE v. BAKSHI (&al'/wr, c. J.) 413\n\nwill be no occasion for Bakshi Ghulam Mohammad to disturb the public peace and safety. It was also said that it had been mentioned that after the completion of the investigation, the Commission of Inquiry would be set up.\n\nThis is not denied. It however does not make the arrest mala fide.\n\nIt was further said by Bakshi Ghulam Mohammad that the statement showed that the Commission was set up to prevent him from disturbing public safety and law and order and that, therefore, it was outside the scope of the Inquiry Act. This was denied on behalf of G. M.\n\nSadiq. In the absence of the statement, it is impossible for us to say which is the correct version. Another point taken was that the affidavits filed on behalf of the appellants showed that the Government were satisfied about the correctness of the allegations into which the inquiry was directed. It was contended that since the inquiry is for finding facts, if the Government were already satisfied about them, there was no need for further inquiry. This contention has no force at all. What the affidavit really said was that the Government were prima fade satisfied. They had to be so before they could honestly set up the Commission to make the inquiry. It was said on behalf of G. M. Sadiq that before setting up the Commission the Government had investigated into the facts through the Criminal Investigation Department and if the Government's intention was ma'.1 fide, they could have started criminal proceedings and ruined the political life of Bakshi Ghulam Mohammad just as well thereby and kept him busy and out of politics for a long time. It was pointed out that this might have resulted in serious consequences for Bakshi Ghulam Mohammad which the Commission of Inquiry would not. It was also pointed out that the Commissioner appointed was a retired Judge of the Supreme Court of India. All this, it was said, would indicate that the action had not been prompted by malice. We cannot say that these contentions of the appellants have no force.\n\nThe next ground of attack on the Notification was based on F Art. 14. It was said that most of the matters into which the Commission had been directed to inquire formed the subject matters of Cabinet decisions. It was pointed out that since such matters are confidential and no one is allowed to divulge in what way the members of the Cabinet voted on them, it must be held that they were all equally responsible for the acts sanctioned.\n\nThat being so, it was contended that by picking Bakshi Ghulam G Mohar.1mad out of the entire Cabinet for the purpose of the Inquiry the Government had discriminated against him in a hostile way. It was contended that the Notification must be set aside on that ground. We find this contention untenable. The inquiry is in respect of wealth acquired by Bakshi Ghulam Mohammad and his friends and relatives by misuse of his official position. It would H be strange if all the members of the Cabinet voluntarily abused their office for putting money into the pockets of Bakshi Ghulam Mohammad and his friends. Let us, however, assume that all the\n\n\"'l\"PR!!'.~IE c<Jt:}fl JH., PORl\" j t~+f, fij :-ot'l'l' . ...... l R.\n\nmembers of the Cabinet assisted Bakshi Ghulam Mohammad in A doing this. It is however not said that other members had acquired wealth by these acts. He was, therefore, in a class by himself.\n\nThis classification has further a rational connection with the setting up of the Commission, for the object is to find out whether the wealth had been acquired by Bakshi Ghulam Mohammad by the abuse of official position.\n\nIt remains now to deal with the last point. This was directed against the proceedings of the Commission.\n\nIt was said that the proceedings had been conducted in a manner contrary to the rules of natural justice and to statutory provisions. Two specific complaints were made. The first was that the Commission had not allowed Bakshi Ghulam Mohammad to inspect all the c documents before he was called upon to answer the allegations made against him.\n\nThe second was that the Commission had refused him permission to cross-examine persons who had fikc\\I affidavits supporting the allegations made against him. We have now to set out the procedure followed by the Commission. It first called upon the Government to file affidavits in support of the allegations in the second schedule to the Notification and to D produce the documents which supported them.\n\nIt then asked Bakshi Ghulam Mohammad to file his affidavit in answer. Thereafter the Commission decided wheher any prima facie case had been made for Bakshi Ghulam Mohammad w meet and in that process rejected some of the allegations. Bakshi Ghulam Mohammad was told that there was no case which he had to meet in respect of them. Out of the remaining allegations, a group was select- E ed for final consideration and it was decided that the rest would be taken up gradually thereafter. Jn connection with that group of cases, counsel for Bak-hi Ghulam Mohammad wanted to crossexamine all the persons who had filed affidavits supporting the Government's allegations in the cases included in that group. The Commissioner ordered that he would not give permission to crossexamine all the deponents of affidavits but would decide each F case separately. It was after this that the ptition for the writ was presented.\n\nThe question of inspection is no longer a live question. It is true that when Bakshi Ghulam Mohammad was directed to file his affidavits he had not been given inspection of all the documents and files which the Government proposed lo use to support their case. On behalf of Bakshi Ghula:n Mohammad it was said G that this was a denial of the rules of natural justice. It is not necessary 10 consider this question because it is admitted that since then inspection of the entire lot of files and documents has been given. At the final hearing of the allegations. therefore, Bakshi Ghulam Mohammad would no longer be at any disadvantage.\n\nH The next point is as to the right of cross-examination. This claim was first based on the rules of natural justice. It was said\n\nf ,,\n\nJ. &; K. STATF. t'. BAKSHI (Sarka, r, C, J,) 415\n\nthat these rules require that Bakshi Ghulam Mohammad should have been given a right to cross-exami11e all those persons who had sworn affidavits supporting the allegations against him, We are not aware of any such rule of natural justice, No authority lws been cited in support of it Our attention was drawn to Meenglas Tea Estates v. Their Workmen<'), but there all that was said was that when evidence is given viva voce against a person he must have the opportunity to hear it and to put the witnesses questions in cross-examination, That is not our case, Furthermore. in Meeng/as Tea Estate case(') the Court was not dealing with a fact finding body as we are. Rules of natural justice require that a party against whom an allegation is being inquired into should be given a hearing, Bakshi Ghulam Mohammad was certainly given that It was said that the right to the hearing included a right to cross-examine, We are unable to agree that that is so, The right must depend upon the circumstances of each case and must also depend on the statute under which the allegations are being inquired into, This Court has held in Nagelldra Nath Bora\n\nv. Commissioner of Hills Division and Appeals. Assam(') that \"the rules of natural justice vary with the varying constitution of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been contravened, should be decided not under any pre-conceived notions. but in the light of the statutory rules and provisions,'' We have to remember that we are dealing with a statute which permits a Commission of Inquiry to be set up for fact-finding purposes, The report of the Commission has E no force proprio vigore. This aspect of the matter is important in deciding the rules of natural justice reasonably applicable in the proceedings of the Commission of Jnquiry under the Act Then we find that s. I 0 to which we have earlier referred, gives a right to be heard but only a restricted right of cross-examination, The latter right is confmed only to the witnesses called to\n\ndepose against the person demanding the right. So the Act did not contemplate a right of hearing to include a right to crossexamine, It will be natural to think that the statute did not intend that in other cases n party appearing before the Commission should have any further right of cross-examination, We, therefore, think that no case has been made out by Bakshi Ghulam Mohammad that the rules of natural justice require that he should have a right to cross-examine all the persons who had sworn affidavits supporting the allegations made against him,\n\nWe will now deal with the claim to the right to cross-examine\n\nbaed on statutory provision, That claim is based on s, 4(c) of the Act The relevant part of the section is as fol!ows :--\n\n\"The Commission shall have the power of a Civil Court, while trying H suit under the Code of Civil Proce\n\n(1) rl984-] 2 S.0.R. llJ; J. t'I [19•i3J S.C.P., 1240.\n\n~VPRFMP. OOVRT RFPORTS [l!lfl6)\n\nSUPP.\n\n~.C.'R.\n\ndure Svt. 1977. in respect of the following matters.\n\nA namely:·-\n\n(a) summoning and ao enforce the attendance yof an person and examining him on oath;\n\n(b)\n\n(c) receiving evidence on affidavits.\"\n\nIt i.s not in dispute that the Code of Civil Procedure of Jammu and Kashmir State referred to in this section is in the same terms as the Indian Code of Civil Procedure. Order 19 r. 1 of the Indian Code reads as follows: -\n\n\"'Any Court may at any time for sufficienl reason C order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:\n\nProvided that where it appears to the Court that either party bona fide desires the production of a witness D for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given Oy affidavit.\"\n\nThe contention is that the powers of the Commission therefore to order a fact to be proved by affidavit are subject to the proviso that that power cannot be exercised when a party desires the production of the persons swearing the affidavits for cross-examining • them.\n\nThe contention was accepted by the High Court. We take a different view of the matter.\n\nWe first observe that the inquiry before the Commission is a fact-finding inquiry. Then we note that s. IO which, in our opinion, applies to a person whose conduct comes up for inquiry by the Commission directly, has a right to p cross-examine only those persons who give viva voce evidence before the Commission against him. If s. 4(c) conferred a right to cross-examine every one who swore an affidavit as to the facts involved in the inquiry. then s. 10(2) would become superfluous. An interpretation producing such a result cannot be right.\n\nIt also seems to us that 0. 19 r. I has to be read with 0. 18 r. 4 which states that the evidence of the witnesses in attendance shall be G taken orally in open court. It would appear, therefore, that 0. 19 r. 1 is intended as a sort of exception to the provisions contained in O. 18 r. 4. The Act contains no provision similar to 0. 18 r. 4.\n\nTherefore, when s. 4(c) of the Act gave the Commission the power of receiving evidence on affidavits, it gave that as an independent power and not by way of an eception to the general rule of taking JI evidence vi..a voce in open court. It would be natural in such circumstances to think that what the Act gave was only the power\n\n:\\'\n\ni ' ,.\n\nJ. &. K. STATE'\" BAKSHI (Sarka.r, I), J.) 417\n\nto take evidence by affidavit and did not intend it to be subject to the proviso contained in 0. 19 r. I. If it were not so, then the result really would be to require all evidence before the Commission to be given orally in open court. If that was intended, it would have been expressly provided for in the Act. We should here refer to Khandesh Spinning etc. Co. Ltd. v. Rashtriya Girni Kamgar Sangh(') where this Court dealing with a somewhat similar section like s. 4(c) observed that facts might be proved by an affidavit subject to 0. 19 r. (!). The observations appear to have been obif'er dicta. In any case that case was dealing with a statute different from the one before us. The observation there made cannot be of much assistance in interpreting the Jammu and Kashmir Inquiry Act. The number of witnesses swearing affidavits on the side of the Government may often be very large. In fact, in this case the number of witnesses swearing affidavits on the side of the Government is, it appears, in the region of four hundred. The statute could not have intended that all of them had to be examined in open court and subjected to cross-examination, for then, the proceedings of the Commission would be interminable. We feel no doubt that the Act contemplated a quick disposal of the business before the Commission, for, otherwise. the object behind it might have been defeated. While on this topic. we would impress upon the Commission the desirability of speedy disposal of the inquiry. For these reasons, in our view, s. 4(c) of the Act does not confer a right on a party appearing before the Commission to require a witness giving evidence by an affidavit to be produced for his cross-examination. The Commission would, of course, permit cross-examination in a case where it thinks that necessary. The view that we take should not put any party in any difficulty. He can always file affidavits of hfa own denying the allegations made in affidavits filed on behalf of the other party. If the evidence on both sides is tendered by affidavits, no one should be at any special disadvantage. We have also to remember that s. 9 of the Act gives the Commission power to regulate its own procedure subject to any rules made under the Act. We find that the rules provide that evidence may be given by affidavits and the Commission may after reading it, if it finds it necessary to do so, record the evidence of the deponents of the affidavits and also of others; see rr. 6, 7 and 8.\n\nRule 10 reproduces the restricted right of cross-examination given by s. 10. Rule 11 says that in all matters not provided by the rules, the Commission may decide its own procedure. One of the matters covered by the rules is cross-examination of witnesses.\n\nSo the rules contemplate cross-examination as a matter of procedure and the Commission is free to decide what cross-examination it will allow provided that in doing so it cannot go behind the rules relating to cross-examination. Section 9 of the Act bas to be read in the light of these rules. All this. we think, supports\n\nI') (1960] 2 S.C.R. 841.\n\n418 8l'PRt:ME ((ll; RT REPfiRTP ['.966] Bt:PF. S.0.R.\n\n1he interpretation we have put on s. 4(cJ. We also feel that the A procedure before a body like the Commission has necessarily to be flexible. We. therefore. reject the last contention.\n\nIn our view, for these Court cannot be supported. appeal is allowed.\n\nreasons. the judgment of the High We accordingly set it aside.\n\nThe\n\nAppeal allowed.\n\n' !•\n\n• I\n\n...", "total_entities": 57, "entities": [{"text": "STATE OF JAMMU AND KASHMIR", "label": "PETITIONER", "start_char": 5, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "STATE OF JAMMU AND KASHMIR", "offset_not_found": false}}, {"text": "BAKSHI GHULAM MOHAMMAD", "label": "RESPONDENT", "start_char": 33, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "BAKSHI GHULAM MOHAMMAD", "offset_not_found": false}}, {"text": "A. K. 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{"document_id": "1966_1_419_435_EN", "year": 1966, "text": "~,..(\n\nL I I\n\nH. H. YESHWANT RAO GHORPADE\n\nv .\n\nTHE COMMISSIONER OF WEALTH TAX, BANGALORE\n\nMay 6, 1966\n\n[K. N. WANCHOO, J.C. SHAH ANDS. M. SIKRI, JJ.]\n\nWealth Ta:c Act 1957, s. 4(1)(a)(iii)-whether the word \"benefit\" meant '1immediate 01' deferred\" benefit or only imm.ediate bene- .\n\nWealth TilJJ: (Amendment) Act 1964, s. 4-effect of-whether only declaratory,\n\nIn August 1957 the appellant created two Trusts by two separate deeds one of which was a charitable trust and the other a family trust'. He then transferred certain shares to the family trust the scheme of which was that during the minority of each of three children of the appellant the property in Schedules A, B and C' to the deed qua each beneficiary was to remain vested ir. the trustees for the benefit of the charitable trust, and after the expiry of the D period specified in each case, the corpus and income was to be herd for the beneficial ownership of the three children.\n\nBy C'Iause 9 df the family trust deed, it was provided that the interests granted or created in the respective beneficiaries shall vest in them immediately upon execution of the deed; Clause 21 conferred upon the trustees power either to use the income accruing under the trust for the benefit of the charitable trust during the period prescribed in each case upto the time that each of the three children attained majority or to accumulate the income and deliver it on the expiry of the periods specified to the trustees of the charitable trust. Clause 26 provided that notwithstanding anything contained in Clauses 21 to 25 the trustees could expend the income accru• ing under the settlement to each of the beneficiaries therein for the maintenance, education, health, marriage and1 advancement of the beneficiaries.\n\nIn computing the nett wealth of the assessee under the Wealth Tax Act 1957, as on March 31, 1958 and March 31, 1959, the valuatioo dates respectively for the assessment years 1958-59 and 195~60, the Wealth Tax Officer and the Appellate Ass'stant Commissioner included the value of the shares held by the trustees undet the family trust, on the ground that these shares were held by them for the benefit of the minor children within the meaning of Section 4(1)(a)\n\n(iii) of the Act. On appeal the Appellate Tribunal reversed this decision but. upon a reference, the High Court decided the issue against the assessee.\n\nIn the appeal to this court, it was contended on behalf of the Revenue that the word \"benefit\" in the Section meant immediate or deferred benefit and the amendment of Section 4(1) (a) (iii) by Act 46 of 1964 whereby the words \"immediate or deferred\" were introduced before the word \"benefit\" in the Section. was in effect only declaratory; and that in any event it was clear from the recitals iii the preamble and the other terms of the family trust deed that the intention of the appellant was to make a settlement for the benefit of his minor children within the meaning of the Section prior to its amendment,\n\n4:0 .<\\'Plll'lME COVllT REPORT•\n\n[1966] SUPP. 8.C.11.\n\nHELD: (pe!' Wanchoo and Sikri, JJ.): Considering the terms of A the family trust deed as a whole, the shares transferred to the t~ tt:es were not held for the benefit of the three minor children as on\n\n?v..rch 31, 1958 and March 31, 1959 within the mean'ng of s. 4(l)(a)\n\n(m) and could not therefore be included in the n<!tt wealth of the assessce. [428El\n\nBy the terms of the deed, it was the charitable trust which was entitled to the inrome of the shares in Schedules A, B and C B\n\nduring the years before the minor children attained majority; upto that time the children had no interest whatsoever in that income. \"'\"' It could not therefore be said that the settlement was for the immediate benefit of the minor children. r 426s-e1 / Although the nm-obstante clause 26 purported to override the provisions of Clauses 21 to 25, the inclusion of Clause 21 appeared to be a typographical error. In any event even assuming that there C was a conflict between Clauses 21 and 26, the earlier disposition under Clause 21 would prevail over the later directions contained in Clause 26. Sahabzada Mohammed Kamaar Shah v. Jaadish Chandra Deo Dhabal Dco (1960) 3 S.C.R. 604, 611. and Ramkishore Lal v.\n\nKamal Narain (1963) Supp. 2 S.C.R. 417, 425; referred to. f427B-C]\n\n(per Shah J. dissenting): The primary intention of the appellant as disclosed in the preamble of the family trust deed was to make provision for his children; from the terms of the trust deed D and particularly from reading Clauses 9 & 26 together, it was clear that there was a vested interest 'mmediately arising in favour of the chiidren on the execution of the instrument. and that they were the real beneficiaries.\n\nThe High Court had therefore rightly held that the shares transferred to the family Trust were for the immediate benefit of the settlor's minor children within the meaning of Section 4(1)(a)(iii) and were liable to be included in the computation of wealth of the E aj)pellant. [435C-El\n\n(By the Court): The words \"1mmed'ate 0r deferred\" introduced into Sect:on 4(l)(a)(iii) by Act 1946 of 1964 were not merely dedara.- \"\"' tory. The amendment made a deliberate change. The word 'benefii must therefore be construed apart from the amendments and in the context meant \"for the immediate benefit of the individual or his wife or minor child\". [422C, Dl\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1133 and IP llJ4 of 1965. '>\n\nAppeal by special leave from the judgment and order dated c- November 18, 1964 of the Mysore High Court in T. R. C. No. 4 \"' of 1964.\n\nR. Venkataram and R. Gopalakris/111a11, for the appellant.\n\nS. V. Gupre, Solicicor-Generol, R. Ganapathy Iyer,\n\nR. H.\n\nG Dhcbar and R. N. Sachthey, for the respondent.\n\nThe Judgment of WAf'<CHOO anti SIKRI JJ. was delivered by SlKRJ J. SHAH J. delivered a dissenting Opinion.\n\nSikri, J. These appeals by special leave are directed against the judgment of the Mysore High Court in a reference under s.\n\nH 27(1) of the Wealth Tax Act (27 of 19571---hereinafter referred to as the Act--answering the question \"whether the sums of\n\nYEBR'l'l'A>T 1'.\\0 t•. t'OMMR. \\V TAX \\81kri, , J,) 421\n\nA Rs. 4,30,684 and Rs. 4,13',353 being the value of the shares transferred by the assessee to the Sandur Ruler's Family (Second) Trust could be included in the net wealth of the assessee for the assessment years 1958-59 and 1959-60 under the provisions of Section 4(l)(a)\n\n(iii) of the Wealth Tax Act\" in favour of the Revenue.\n\nThe question arose in the following circumstances: The ap pellant. His Highness Y eshwant Rao Ghorpade, hereinafter referred to as the assessee, held 12,750 shares in Sandur Manganese & Iron Ores Ltd. on March 31, 1957. On August 24, 1957, he created two Trusts; one may be called the Charitable Trust and the other the Sandur Rulers Family (Second) TrustJ-may hereinafter be referred to as the Second Trust. The assessee transferred some shares to the Second Trust under conditions contained in the Trust Deed. The Wealth Tax Officer and the Appellate Assistant Commissioner, in computing the net wealth of the assessee on March 31, 1958, and March 31, 1959, the valuation dates respectively for the assessment years 1958-59 and 1959-60, included the value of these shares held by the Trustees under the Second Trust. On appeal, the Appellate Tribunal reversed the decisions of the authorities below and came to the conclusion that the value of the shares could not be taken into consideration in computing the net wealth of the assessee. The Tribunal, however, at the instance of the Department referred the question of law already set out above for the opinion of the High Court. The High Court, as mentioned earlier, answered the question against the assessee. The assessee having obtained special leave, the appeals are now before us.\n\nThe short question that arises is whether the shares in question held by the Trustees under the Second Trust are held for the benefit of the three minor children mentioned in the Second Trust deed. The answer to this question depends, first, on the interpretation of the words \"for the benefit of. ........ minor child\" in s. 4(1) (a)(iii) of the Act, and secondly, on whether on the true interpreta tion of the Second Trust, these assets are held for the benefit of the minor children. Section 4(!)(a)(iii) reads as follows:\n\n\"4. ([) In computing the net wealth of an individual, there shall be included, as belonging to him ..... .\n\n(a) the value of assets which on the valuation date are held.\n\n(iii) by a person or association of persons to whom such assets have been transferred by the individual otherwise than for adequate consideration for the benefit of the individual or his wife or minor child or\".\n\nThe learned Solicitor-General, Mr. Gupte, on behalf of the Revenue, contends that the word \"benefit\" in this section means the immediate or deferred benefit. He says that the amendment of the section made by the Wealth Tax (Amendment) Act, 1964 (46 of 1964), which came into force on April J, 1965, is in\n\n422 [\\9~6j Rl\"PP. 'C.R.\n\neffect declaratory. Sectinn 4 of the Amending Act substituted a A new clause for the clause set out above. The new clause is:\n\n\"(iii) by a person or association of persons to whom such asocts have been transferred by the individual otherwise than for adequate consideration for the immediate or deferred benefit of the individual, his or her spouse or minor child !not being \" married daughterl or both. or\".\n\nWe are unable to regard the new amendment as declaratory. The amendment makes a deliberate change and the addition of the words \"the immediate or deferred benfll\" before the words \"of the individual\", apart fwm other changes, cannot be called a mere declaratory legislation. and we must construe lhe word 'benefit' apart from the amendments made by Act 46 of 1964.\n\nIt seems to us that the word 'benefit' in the context means for the immediate benefit of the individual or his wife or minor child.\n\nIf a property is transferred to Trustees to hold in trust for the life of A and then for B. we cannot hold that the property is held for the benefit of B. during the life rime of A. As will appear later, under the Second Trust. the Trustees hold the trust properly for the benefit of the Charitable Trust for a number of years before they start holding it for the benefit of the minor children. It is difficull to say that while the property is being held for the benefit of the Charitable Trust. it is also heini: held for the benefit of the minor children.\n\nComing to the second point. namely, whether the trust pro perty is held for the benefit of the minor children within s. 4(!)(a)\n\nliii), it is necessary to carefully consider the terms of the Second Trust Deed, because the High Court has differed from the interpretation placed upon it by the Income Tax Appellate Tribunal.\n\nIt is common grouncl that the Trust Deed 111m1 be considered as a whole. The preamble to the deed reads as follows:\n\n\"This Deed of Settlement and Trust is made this 24th day of August 1957 between His Highness Maharaj Shri Yeshwant Rao Hindu Rao Ghorpade, Ruler of Sandur. now residing at Sandur House, Palace Road.\n\nBangalore, hereinafter called the SETTLOR, of the one part, and His Highness Maharaj Shri Ye.shwant Rao Hindu Rao Ghorpade. Ruler ,, f Sandur. and Cotain Sardar Dattaji Rao Chander Rao Ranavare. both of whom are hereinafter collectively called the TRUS- TEES. of the other part: Whereas the SETTLOR is absolutely entitled to the shares. set out and described in Schedules A.Band Chereto as sole and absolute owner thereof; Whereas the SETTLOR had been and is desirous of making a settlement on his two minor sons namely.\n\n. '\n\nYE81IWANT RAO v. COMMR. W, TAX (Sikri, J.) 423\n\nRajkumar Shri Shivarao Yeshwantrao Ghorpade, aged 16 years and Rajkumar Shri Venkatrao Yeshwantrao Ghorpade, aged 6 years hereinafter referred to as the First and the Second Beneficiary and on his minor daughter Rajkumari Shri Vijayadevi Yeshwantrao Ghorpade, aged I 0 years, hereinafter referred to as the Third Beneficiary, out of natural love and affection towards them of the shares set out in Schedules A, B and C hereto respectively, and with a view to make provision for them; Whereas the SETTLOR intends and desires to give to his aforesaid minor sons and minor daughter, from time to time, further shares or other assets, with the intention that such further shares or other assets be given, should be held in Trust for the said minor sons and minor daughter in the manner in which they have respectively taken the shares set out and described in Schedules A, B and C hereto, as if the further shares or other assets had formed part of the said Schedules.\" It is not necessary to set out the last para in the preamble. The learned Solicitor-General attaches importance to the recitals in the preamble, but, in our view, the recitals do not assist us in any manner. There is no doubt that the intention of the settlor was to make a settlement on his minor children, but the whole question which arises in this case is whether the settlement made by him is for the benefit of the minor children within s. 4(1)(a)(iii).\n\nThe word \"settlement' is neutral, and the question is what has been settled on the minor children. But there is no doubt that the assessee out of natural love and affection for his minor children created the Trust in question, and that the minor children are the beneficiaries under the Trust.\n\nClauses I, 2 and 3 of the Trust Deed grant, transfer and convey the shares mentioned in the Schedules A, B and C to the Trustees. Clause I deals with the shares settled for the ultimate benefit of the first beneficiary; clause 2 deals with the shares settled for the ultimate benefit of the second beneficiary, and clause 3 deals with the shares settled for the ultimate benefit of the third beneficiary. These clauses are couched in the same language and it is only necessary to set out clause 1, which is in the following terms:\n\n\"The Settlor doth hereby grant, transfer and convey upto the Trustees the shares set out and described in Schedule A hereto, to have and to hold the same in Trust, both as to the corpus and income therefrom, for a period of two years from the date of this Indenture for the bene- H fit of Shri Yeshwantrao Maharaj Charitable Trust and on the expiry of the said period of two years. to have and to hold the shares set out and described in Schedule A\n\n424 SUPREmi: COURT REPORTS\n\n(1966) SUPP. 8.C, R.\n\nnereto in Trust both as to the corpus and income received after the expiry or the aforesaid period of two years from the date of this Indenture, for the benefit of Rajkumar Shri Shivarao Yeshwantrao Ghorpade, the First Beneficiary herein, as the full absolute and beneficial owner thereof, but subject to the tenns and conditions hereinafter set forth.\n\nOause I thus purports to vest the shares in the Trustees and directs, first, that they shall hold the same in trust. both as to corpus and income therefrom, for a period of two years from August 24, 1957, for the benefit of the Charitable Trust, and secondly, that on the expiry of the said period of two years to\n\nhold the shares in trust, both as to corpus and income received. C after the expiry of the aforesaid period of two years from August 24, 1957 for the benefit of the first beneficiary. It seems to us clear from reading this clause in isolation from the other clauses, which will be referred to later, that for the first two years the beneficiary is the Charitable Trust and not the Rajkumar, the first beneficiary.\n\nFor the first two years there is an express direction that the corpus and the income should be held for the benefit of the Charitable Trust. There was some discussion as to why both the corpus and income are mentioned. The word \"income\" has been defined in clause 31 of the Deed as follows :\n\n\"Jn these presents. the expression 'income' with reference to any Beneficiary shall mean the income derived from the shares set out and described in the Schedule appropriate to such beneficiary and any income that may be derived from the investment of such income including any income that may be derived from any further shares or other assets that may be transferred either by the Settlor or by any other persons for the benefit of any such beneficiary, including bonus shares, if any.\" It appears to us that in view of this definition it was perhaps necessary to mention the word \"income\" in Clause I because the idea of the settlor was that income accruing in the first year should be invested and further returns secured from it. But it is manifest that the Rajkumar, the first beneficiary, had no interest whatsoever in the income accruing during the first two years from the trust properties. It is true that clause I does not direct that the income during the first two years should be handed over to the charitable Trust, but this is made clear in clause 21. which we shall presently consider.\n\nThe next relevant clause is clause 9 which reads as under:\n\n\"This Settlement and Trust is herebv declared to be irrevocable and shall take effect immediately and all trusts.\n\nsettlements and interests granted or created by these H presents shall vest in the respective Beneficiaries imme diately.\"\n\nYESilWA!; T RAO ?). COMMR. W. TAX (Sikri, J.) 425\n\nA , Mr. Gupte relied on this clause to show that the interest of .. the n1inor children was a vested interest and not a contingent in~ terest. Assuming that it is so, it still does not assist us in answering the question which we have posed above. Assuming the interest to be vested we stiU have to consider whether the Trustees hold the shares for the benefit of the minor children as on the valuation B dates, i.e., March 31, 1958 and March 31, 1959.\n\nClause 21 to which reference was made a short while ago, and the provisos thereto, are as follows. We may mention that the High Court thought that the provisos were irrelevant but in our view they throw a great deal of light on the question before us.\n\nO \"21. The Trustees may, in their absolute discretion, accumulate the income accruing under this settlement to the benefit of Shri Yeshwantrao Maharaj Charitable Trust for a period of two years from the date of this Indenture as respects the shares set out and described in Schedule A hereto and for a period of twelve years from the date of this Indenture as respects the shares set out and des- D crihed in Schedule B hereto and for a period of eight years from the date of this Indenture as respects the shares set out and described in Schedule C hereto.\n\nProvided that:\n\n(a) The Trustees may, at any time and from time to time, during the aforesaid period of two years from the date of this Indenture, pay to the 'Trustees of Sliri Yeshwantrao Maharaj Charitable Trust the whole or any part of the income accruing under this settlement in respect of shares set out and described in Schedule A hereto, during the said period of two years as the Trustees may, from time to time, deem fit and on the expiry of the said period of two years, the Trustees shall pay over to the Trustees of the said Shri Yeshwantrao Maharaj Charitable Trust the whole or the balance of the said income as the case may be, and thereupon the Trustees shalli stand discharged of all their obligations to the aforesaid Charitable Trust and thereafter the said Charitable Trust shall have no right or claim whatsoever either to the income or the corpus of the said shares set out and described in Schedule A hereto.\" Provisos (b) and (c) are in similar terms and deal with the shares set out in Schedule B and Schedule C, respectively, the only difference being about the period during which the income accruing could be paid to the Charitable Trust and the period after which the Trustees were under an obligation to pay to the H Charitable Trust the whole or the balance of the said income.\n\nIt seems to us quite clear from clause 21 that the intention of the settlor was that the income from the shares mentioned in\n\n426 SUl'llltHE OOURT REPORTS\n\n(1966) SUPP. B.C.R.\n\nSchedule A sould be either paid over to the Charitable Trust A durmg the penod of two years, or if it is not paid over during the two years, it should be paid over to the Charitable Trust on the expiry of the said two years.\n\nNow reading clause I and clause 21 with proviso (al it seems to us that it is the charitable trust which is entitled to the income of the shares in Schedule A during the first two years. Reading clause 2 and clause 21 with proviso (bl it is equally clear that it is the charitable trust which is entitled to the income from the shares set out in Schedule B for a period of 12 years. Further it is manifest that reading clause 3 and clause 21 with proviso (c) it is the charitable trust which is entitled to the income from the shares set out in Schedule C during the first eight years. During these periods the first, second and third beneficiary had no interest whatsoever in that income.\n\nThe learned Solicitor-General says that this may be so if we only consider clauses upto 21, but if we consider clauses 22, 23, 24, 25 and 26, they override the intention manifested uptil now.\n\nClauses 22, 23 and 24 enabl'e the Trustees to accumulate the income accruing under the settlement to the first, second and the third beneficiary respectively till July 31. 1975. We may only set out clause 22 which deals with the first beneficiary. Clause 22 reads as follows:\n\n\"The Trustees may in their absorute discretidn accumulate the income accruing under this Settlement and Trust to the First Beneficiary herein until the 31st July 1975 and on the aforesaid date shall make over to him all the Trust funds in the possession of the Trustees as may belong to the said Beneficiary.\"\n\nIn our view, clause 22 enables the Trustees to accumulate only the income accruing to the first beneficiary; does not say what income accrues to the first beneficiary. For that we have to look to the other clauses. It is only under the latter part of clause I of the Trust Deed that income accrues to the first beneficiary. Clause 25 deals with the eventuality of the first, second or the third beneficiary dying before July 31, 1975. It does not raly throw much light on the question. The next clause, clause 26, 1s important, and Mr. Gupte strongly relies on this clause. This clause reads as foUCIWs:\n\n\"Notwithstanding anything contained in clause 21 to 25 supra, the Trustees shall have full power during the currency of this Settlement and Trust to expend from out of the income accruing under this Settlement to each of the Beneficiaries herein such amount as the Trustees may\n\nin their discretion deem fit for the maintenance, education, H health, marriage and advancement of each of the Beneficiaries herein.\"\n\nI ·~ B\n\nYl<SIIWAN1' RAO 11. COMMR. W. TAX (Sikri, J.) 427\n\nMr. Gupte says that this clause shows that all the previous clauses are a smoke-screen to enable the Trustees to spend the money for the benefit of the beneficiaries even during the aforementioned periods of 2, 12 and 8 years, and he says that the non-obstanle clause overrides everything contained in clauses 21 to 25. There is no doubt that clause 21 is mentioned in the non-obstante clause, but we agree with Mr. Venkataraman, the learned counsel for the assessee, that the mention of clause 21 seems to be a typographical mistake, for the meaning of the clause is quite clear that the Trustees cannot under this clause expend from out of the income accruing under the settlement to the charitable trust for their power to spend is limited to the income accruing under the settlement to each of the beneficiaries, and as we have mentioned before while dealing with clause 21, the only income that accrues to the three beneficiaries under the settlement is after it ceases to be accumulated for or given to the Charitable Trust. If we were to acoept Mr.\n\nGupte's argument we would have to omit the word8 \"to each of the Beneficiaries herein\" occurring in the clause. Mr. Gupte contends that the word 'beneficiary' would include the Charitable Trust.\n\nWe are unable to agree because the latter portion of the clause deals with education, marriage, etc., and these can have reference only to the first, second and the third beneficiary, i.e .. his minor\n\nchi., dren. Mr. Gupte urges that it would be natural on the part of the settlor to provide for the maintenance, education, health, marriage and advancement of each of the beneficiaries during their minority, and it would be unnatural to attribute intention to him to leave them without any means of sustenance during their minority. There is no force in this contention. The settlor may well have through! that he would look after the minor children during their minority, and what he wanted to provide was for their expenses after they had attained the age of about 18. It would be recalled that the effect of the earlier provisions is that income starts accruing under the settlement to each of the minor children when they reached the age of about 18. We are accordingly of the opinion that clause 26 does not cut down the interest which had been settled on the Charitable Trust.\n\nWe may mention that in this connection Mr. Venkataraman drew our attention to the rule of construction laid down by this Court in Sahabzada Mohammed Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo (') and Ramkishore Lal v. Kamal Narain. (') In the latter case Das Gupta, J., speaking for the Court, observed as follows:\n\n\"Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non-testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given\n\n(') [1960] 3 S.C.R. 601, 611.\n\nI') [1963, J Supp. 2 S.C.R. 417, 426.\n\n12l\n\nSUPREME COURT REPORTS\n\n[1966] SUPP. S.C.R.\n\nabsolutely to one person but later on other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion.\n\nWhat is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Sahabzada Mohd.\n\nKamgar Shah v. Jagdish Chandra Dea Dhabal Dea(')\n\nIt is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible. It is only when this is not possible, e.g .. where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held lo be void.\" In our opinion these observations would apply to the facts of this case if it is held that there is contlict between clauses I and 21 on the one hand and clause 26 on the other. But, m our view, all these clauses can be read harmoniously by holding that the mention of clause 21 in clause 26 is a typographical mistake, and clause 26 deals only with the income which accrues to the first, second and third beneficiary after the interest of the Charitable Trust has ceased.\n\nIn conclusion we hold that considering the document as a whole the shares were not held for the benefit of the three minor children as on March 31. 1958 and March 31, 1959. Accordingly\n\nthe answer to the question referred by the Appellate Tribunal and E set out above must be against the Revenue.\n\nThe appeals are accordingly allowed, judgment of the High Court set aside and the question referred to the High Court answered in the negative. The assesscc will be entitled to costs here and in the High Court. One hearing fee.\n\nShah, J. The High Court of Mysore answered the following F question referred under\" 27(1) of the Wealth Tax Act 27 of 1957 in the affirmative:\n\n\"Whether the sums of Rs. 4,30,684 and Rs. 4, 13,353 being the value of the shares transferred by the assessee to the Sandur Ruler's Family (Second) Trust could be included in the net wealth of the assessee for the assessment years 1958-59 and 1959-60 under the provisions of s.\n\nG 4(1)(a)(iii) of the Wealth Tax Act?\" The Wealth Tax Bill was moved before the Parliament on May 15, 1957, and was enacted as law after receiving the assent of the President on September 12, 1957. The two trust deeds which fall to be construed in these appeals were executed on August 24,\n\n1957. The object of the settlor of the two deeds of trust was to\n\n- -·------- -----------------\n\n\n- .. --\n\nYESH\\VANT RAO v. CO>U!R. W. TAX (Shah, J.) 429\n\nevade the charge of wealth tax on the properties covered thereby.\n\nIt was so found by the High Court, and that was not denied' before us. But it is open to a taxpayer to so order his affairs that incidence of tax may lawfully be avaided. Attempts at evading incidence of taxation though not commendable are not illegal. In each case the Court must take the taxing statute as it stands, subject to all its imperfections: If a transaction does not fairly fall within the letter of the law, the Court will not seek to put a strained construction to bring it within the law. The Court will not also stretch a point in favour of the taxpayer to enable him to get by his astuteness the benefit which other taxpayers do not obtain.\n\nThe two trust deeds were executed on August 24, 1957. One is a trust deed styed \"Shri Yeshwant Rao Maharaj Charitable Trust\"\n\n-hereinafter called 'the Charitable Trust'-and the other is styled\n\n\"The Sandur Ruler's Family (Second) Trust\"-hereinafter called 'the Family Trust'. Of both these Trusts, Yeshwant Rao Ghorpade, Ruler of Sandur, is the settler and the trustees are the settlor and Captain Sardar Dattaji Rao Chender Rao Ranavare. Under the Charitable Trust the income and all the assets of the Trust funds are liable to be utilised for advancement of knowledge, education. health, safety or any other object of general public utility or beneficial to mankind. The settlor is to be the Chairman of the Board of Trustees during his lifetime and he has power to fill up the vacancy in the office of a trustee. In case of his death, the Ruler of Sandur for the time being, is entitled to fill the vacancy of the office of trustee. Under this deed no property is settled for the Trust.\n\nBy cl. 3 the assets and the funds of the Trust are to be such sums as the Founder Trustees may contribute or in any manner provide to the Trust. such sums or assets as may be contributed, gifted or donated by any person or company to the Trust, all interest or income arising out of the said sums and assets, all assets that may be purchased or acquired from out of the said funds or otherwise acquired for the Trust, all investments and realisations therefrom out of the said funds, and assets, and all sums and assets which have by any means become the property of the Trust. By cl. 4 the trustees are authorised to accept any donation or other sums of money or other assets from any person or campany subject to any special conditions as may be agreed upon, but not so as to be inconsistent with the intent and purposes of the Trust.\n\nSimultaneously with the Charitable Trust, the Family Trust was executed. Initially the settlement was to operate in respect of 30 ordinary shares of the Sandur Manganese and Iron Ores (Private) Ltd., ten shares described in Sch. A to be held in trust for the benefit of Rajkumar Shivarao, the First Beneficiary, ten shares described in Sch. B to be held in trust for the benefit of Rajkumar Venkatrao. the Second Beneficiary and the remaining ten shares described in\n\nSch. C to be held in trust for the benefit of Rajkumari Vijayadevi, the Third Beneficiary. By paragraph-2 of the preamble it is declared that the settlor was desirous of making a settlement \"on his\n\nSUl'RBliE COURT REPORTS (1966] SUPP. s.c.I\\.\n\ntwo minor sons, namely Rajkumar Shri Shivarao Ycshwantrao A Ghorpade, aged 16 years, and Rajkumar Shri Venkatrao Yeshwantrao Ghorpade, aged 6 years ..................... and on his minor daughter Rajkumari Shri Vijayadevi Yeshwantrao Ghorpade, aged 10 years, ..................... out of natural love and affection towards them ........................... and with a view to make provision for them\", and by the third paragraph of the preamble it B was declared that the settlor intended and desired to give to bis minor sons and daughter from time to time further shares or other assets, with the intention that such further shares or other assets should be held in trust for the minor sons and daughter to be taken by them as set out and described in Schedules A, B & C, as if such shares or other assets had formed part of the said Schedules. The primary intention disclosed by the preamble of the deed of trust c was that the settlor settled properties described in Schedules A, B & C and declared his intention to settle other properties in future with the object of making provision for his three named children.\n\nThe quantum of the estate settled must undoubtedly be determined by the habendum clause, but the preamble may in case of ambiguity be resorted to for ascertaining the object of the deed and the intention of the executant. By the first clause the settlor conveyed D to the trustees the shares described in Sch. A, and to hold the same in trust \"both as to the corpus and income therefrom for a period of two years from the date of this Indenture for the benefit of\" the Charitable Trust \"and on the expiry of the said period of two years, to have and to hold the shares set out and described in Schedule A ............... in Trust both as to the corpus and income received after the expiry of the ............ period of two years . .. .. . .. .\n\nE for the benefit of\" the First Beneficiary \"as the full, absolute and beneficial owner thereof, but subject to the terms and conditions hereinafter setforth\". Similarly the shares described in Sch. B were conveyed for twelve years for the benefit of the Charitable Trust and thereafter for the benefit of the Second Beneficiary, and by cl. 3 the scttlor conveyed the shares described in Sch. C for a period of eight years for the benefit of the Charitable Trust and thereafter F to the Third Beneficiary. By cl. 4 it is declared that other shares or assets given to all or any of the beneficiaries and transferred to the trustees will be held in trust for all or any of the beneficiaries as may in accordance with the settlement and trust be specified, and subject to the same limitatioos, interests and conditions as relate to the shares specified in Schedules A. B & C, as if those other shares or assets so transferred had formed part of the Schedule A, B & C G as may be specified by the settlor or such other person. Clause 31 ot the deed of trust defines the expression \"income\" with reference to any beneficiary s meaning income deried from the shares. set oot and described in the Schedule appropnate to such beneficiary and any income that ay be derived from te investment of such income including any mcome that may be derived from any further B shares or other assets that may be transferred for the benefit of any such beneficiary.\n\nYESliWANT RAO v. COM!.IR. W. TAX (Shah, J.) 431\n\nThe scheme of els. 1, 2, 3 & 4 of the Family Trust may first be examined. The shares initially settled and any other shares or assets subsequently settled for the benefit of the beneficiaries or any of them are by cl. 4 to be dealt with as if they formed part of the three Schedules. The Charitable Trust is to obtain the benefit of the property in Schs. A, B & C both as to the corpus and income<, approximately for the periods during which the three beneficiaries do not attain their respective ages of eighteen years, and income therefrom is to be held for the benefit of the Charitable Trust and on the expiry of the periods mentioned, the shares and the assets are to be held in trust both as to the corpus and income therefrom for the benefit of the First, Second or the Third Beneficiary. The scheme devised by the seHlor is that during the minority of each beneficiary the property in Schedules A, B & C qua each beneficiary is to remain vested in the trustees for the benefit o~ the Charitable Trust, and after expiry of the peridd specified the corpus and income is to be held for the full, absolute and beneficial ownership of the respective beneficiaries. By els. 6, 7 & 8 provision is made for appointment of trustees. It may suffice to mention that the settlor during his lifetime is to be the trustee and has in case of vacancy power to appoint new trustee by writing or by will, and by cl. 10 the custody of the Trust assets and every portion thereof is to remain with the settlor and the trustees have full power to alter the investments in their absolute discretion. Clause 9 reads as follows:\n\n\"This Settlement and Trust is hereby declared to be irrevocable and shall take effect immediately and all trusts, settlements and interests granted or created by these presents shall vest in the respective beneficiaries immediately.\"\n\nIt is not clear whether in cl. 9 the charity is intended td be designated as a beneficiary. From the Schedules and els. 1, 2 & 3 it appears that the beneficiaries were to be the three children of the settlor.\n\nF Even granting that charity was intended to be a beneficiary within the meaning of cl. 9, the instrument vests the interests granted or created in the respective beneficiaries immediately on execution, and therefore the interest which enures to the three children of the settlor under the instrument vests in them immediately. By cl. 21 it is directed that the trustees may, in their absolute discretion, accumulate the income accruing under the settlement for the benefit G of the Charitable Trust for a period of two years from the date of the indenture as respects the shares set out and described. in Sch.\n\nA, for a period of twelve years as respects the shares set out and described in Sch. B and for a period of eight years as respects the shares set out and described in Sch. C. The direction is not obligatory, but permissive. By the first proviso the trustees are H authorised to pay at any time, and from time to time, during the period of two years, to the trustees of the charity the whole or any part of the income accruing under the settlement in respect of shares\n\n432 8t:PREME COURT UEPORTS\n\n(1966) SUPP. S.C.R.\n\nset out in Sch. A, and on the expiry of the said period the trustees are enjoined to pay Gvcr to the trustees of the charity the whole or the balance of the income as the case may be, and thereupon the trustees stand discharged of all their obligations to the charity.\n\nSimilar provision is made by provisos (b) & (c) with regard to payment of income from the shares during the period CJf twelve years in respect of shares set <lUt in Sch. B and during the period of eight years in respect of shares described in Sch. C. Prima facie this may indicate that the income to be received from the shares is to be applied for the benefit of charity in respect of the shares set out in Schedules A, B & C during the specified periods and that the children of the settlor are not to have any interest in that income. By els. 22. 23 and 24 an ab., olute discretion is conferred upon the trustees to accumulate the income until July 31. 1975 in respect of the shares mentioned in each of the Schedules and on the expiry of that period to make over to the Trust funds as may belong to the beneficiaries. This is clearlv intended to maintain the control of the settlor over the proper.tics settled in trust till July 31. 1975. By cl. 25 it is directed that the trustees shall have control over the trust funds and the income. even if any of the beneficiary dies before July 31, 1975. Clause 26 provides:\n\n\"Nothwithstamling anything contained in clauses 21 to 25, supra. the Trustees shall ha\\'e full power during the currency of this Settlement and Trust to expend from out of the income accruing under this Settlement to each of the Beneficiaries herein such amount as the Trustees may in their discretion deem fit for the maintenance, education, health, marriage and ad\\'ancemcnt of each of the Beneficiaries herein.\"\n\nClause 26 confers upon the trustees full power during the currency of the settlement and trust to expend the income accruing under the settlement to each of the beneficiaries therein for the maintenance. education, health. marriage and advancement of the bcnficiaries. This power is cxcrcisab'e notwithstanding any provision to the contrary made in els. 21 to 25. It may be recalled that cl. 21 confers upon the trustees power either to use the income accruing under the trust for the benefit of Trust during the period prescribed, or to accumulate the income and deliver it on the expirv of the periods specified to the trustees of the Charitable Trust. But by cl. 26 the trustees under this trust are competent to expend the income not for charity. nor to pay it over to the trustees of the Charitable Trust. but for maintenance. education. health, marriage and advancement of the beneficiaries.\n\nThe relevant provisinns of the Wealth Tax Act may now be summarised. By s. 3 wealth tax is charged for every financial year commencing on and from April I, 1957. on the net wealth on the\n\nF '\n\nH ..\n\n\\'ESH\\VANT RAO V. COMME. W. TAX (SJiah, J.) 433\n\n A corresponding valuation date, on every individual, Hindu undivided family, and company. By s. 4, net weaHh is to include certain assets. Clause (l)(a)(iii} of s. 4 provides that:\n\n\"In computing the net wealth of an individual, there shall be included, as belonging to him- B\n\n(a) the value of assets which on the valuation date are\n\nheld.\n\n(iii) by a person or association of persnns to whom such assets have been transferred by the individual otherwise than for adequate consideration for the benefit of the individual or his wife or his minor child.\"\n\nSection 5 provides for exemptions of certain assets in the computation of net wealth. It provides insofar as it is material that:\n\n\"Wealth-tax shall not be payable by an assessee in respect of the following assets and such assets shall not be included in the net wealth of the assessee-\n\n(i) any property held by him under trust or other legal obligation for any public purpose of a charitable or religious nature in India.\" Under the instrument of Family Trust the assets included in the Schedules A, B & C were on the valuation date held by an association of persons and those assets were transferred by the settlor otherwise than for adequate consideration. But says the settlor, on the valuation date the assets were not held for the benefit of himself,. his wife or minor children, since, they were held both as to corpus and income for the benefit of charity during the minority of his children. If on a true interpretation of the deed this plea be correct, the assets are not liable to be included in the net wealth of the settlor for the levy of wealth tax.\n\nI agree with counsel for the scttlor that the amendment made in s. 4(1) (a) (iii) by Act 46 of 1964 which sought to include in the computation of net weal, th, assets transferred for \"the immediate or deferred benefit of the individual, his. or her spouse, or minor child\" is not declaratory of pre-existing law. Under the clause as originally enacted, assets transferred for the immediate benefit of the individual, his wife or minor children alone may be included in the net wealth of the individual, and the liability of the settlor must be determined under the provision as it stood enacted in 1957. The question then is: Are the assets transferred by the settlor under the Family Trust instrument for the immediate benefit of his minor children? That question can only be answered on a determination of the total effect of the instrument in the light of the diverse clauses.\n\nBy the Family Trust the primary intention of the settlor as disclosed in the preamble is to make provision for his children. and\n\n431 SlJ~RBlll COURT REPORTS\n\n[1966) SUPP. S.C.11.\n\nfor that purpose property is set apart by the Schedules read with A els. 1, 2 & 3. By cl. 4 it is contemplated that other property will also be settled for the benefit of the children of the settlor. By cl. 9 the interest created under the deed vests immediately in the beneficiaries and by cl. 26 notwithstanding the provisions made in els. 21 to 25 directing application of the income from property set out in Schedules A. B & C for limited periods in favour of charity, B the trustees have the power during the currency of the settlement to expend from out of the income accruing under the settlement to each of the beneficiaries such amount as the trustees may in their discretion deem fit for their maintenance, education, health, marriage and advancement of each of the beneficiaries therein. If by this clause power is conferred upon the trustees to direct the income of the property in Schdules A, B & C for the benefit of the children c even during the periods specified in els. I, 2 & 3 the assets are unquestionably transferred for the immediate benefit of the children.\n\nBut it was urged that the inclusion of figure \"21\" in cl. 26 is the result of a typographical error and it should have read as cl. 22.\n\nBut even cl. 25 refers to the application of the income for limited periods in the event of death of any of the beneficiaries and thereafter for the heirs of the beneficiary, and that is not said to be an D error-typographical or otherwise.\n\nAgain the argument that reference to cl. 21 was due to an error was never raised before the High Court: if there was any substance in that agreement, the settlor would have executed a deed of rectification correcting the error after setting out the circumstances in which that error came to be made.\n\nIt was urged that the power which the trustees could exercise is to expend the income accruing under the settlement for each of the beneficiaries under the Trust, and since no income accrued to the beneficiaries during the periods for which the income was to be applied or accumulated for the benefit of charity, reference to cl. 21 in cl. 26 had no meaning. It is implicit in this submission that the settlor intended that the income arising from the Trust property was to be utilized after the children attained the age of majority for their maintenance, education, health. marriage and advancement and not during their minority. The children stood in greater need of provision for maintenance, education, health and advancement during their minority than after they attain their majority, but it is said contrary to the plain terms of cl. 26 that the interest was intended to be given to them after they attained the age of majority, and not during their minority.\n\nIn the deed of settlement charity is not directly mentioned as one of the beneficiaries, and the income is directed to be given for limited periods to charity and thereafter to the beneficiaries named therein. Clause 26 in terms confers power upon the trustees to expend from out of the income accruing under the settlement to each of the beneficiaries, such amounts for the maintenance, education, health, marriage and advancement of the beneficiaries or any of\n\nYE8HWANI' RAO t'. W. TAX (Sf/ah, J.) 435\n\nthem as the Trustees deem fit, and there is nothing in that clause which implies that this power is to be exercised after expiry of the periods specified in els. 1, 2 & 3. The expression \"benefidary\" in\n\ncl. 26 clearly refers not to charity, but to the three children of the settlor, because the trustees are invested with power to expend from out of the income accruing under the settlement for the maintenance, education, health, marriage and advancement of each of the beneficiaries therein.\n\nReading els. 9 & 26 together it appears that the settlor intended that the trustees shall have power, notwithstanding other provisions in the deed of Trust, that the income of the property settled may be applied during the currency of the settlement for the benefit c of the beneficiaries named therein, and in the event of death of any of the beneficiaries, for the benefit of his or her heirs. There was therefore a vested interest immediately arising on the execution of the instrument, and the children of the settlor were the real beneficiaries. In seeking to evade the application of the Wealth Tax Act, clumsy and inconsistent directions are made in the Family Trust: the trustees are initially directed to apply the income accruing from D the shares for certain specified periods to charity, and if the income is not so applied during the periods the accumulated income is directed to be handed over to charity, but the direction is immediately followed by the clause that the trustees may apply the income, notwithstanding the provision relating to the application of the income in favour of charity, for the benefit of the minor children of the settlor. The High Court has held that the case fell clearly E withins. 4(1) (a) (iii) of the Wealth Tax Act and during the periods specified in els. 1, 2 & 3 the property mentioned in Schedules A, B & C was liable to be included in the computation of wealth. tax of the appellant, and in my view the High Court is right in so holding.\n\nThe appeals fail and are dismissed with costs.\n\nORDER\n\nIn accordance with the opinion of the majority, the appeals are allowed with costs here and in the High Court. One hearing fee.", "total_entities": 87, "entities": [{"text": "I\n\nH. H. YESHWANT RAO GHORPADE", "label": "PETITIONER", "start_char": 11, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "H. H. 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{"document_id": "1966_1_436_452_EN", "year": 1966, "text": "43G\n\n,, I\n\n\\ \" 1'1AHANT 'SHIU SRINIV ASA RAl\\IANUJ nAs\n\nSURAJr<ARAYAN DASS &.ANR.\n\nMay 6, 1966\n\n[A. K; SARKAR, C.J., M. HIDAYATULLAH, R. S. BACHAWAT,\n\n. J.M. SHELAT AND RAGHUBAR D,1.YAL, JJ.) ·\n\nOrissa Hindu Religious Endowments Act, 1939 (Orjssa 4 of ~939), -1\\fath Characteristics of-Distinction between public and pnvate\n\ntrust-Math if governed by Act-Onus of proof of showing t'iat Math is outside Act-Gazetteer-Statements in-If evidence; c\n\nThe Commissioner of Hindu Religious Endowments. Orissa, demanded contribution under s. 49 of the Hindu Religinus Endowments Act and took steps to enforce . certain other provisions of the Act against the appellants and certain properties; These properties, the appellant~ claimed, were not math as defined in the _Act and the public had no free access to its J>i'emises and had no right of entry or worship of the deity installed therein: The Commissioner held that the properties were math as defined in the Act. and that the proi; er- D ties constituted a 'religious endowment' to wh1ch the Act applied.\n\nThereafter, the appellants instituted a suit and prayed for setting .\n\naside of the decision of the Commissioner and for a declaration that the Act did not apply to the properties in suit. The trial Court dismissed the suit, which on appeal was confirmed by the High Court.\n\nIn appeal by special. leave. HELD: .The appeal must be dismissed.\n\n(1) An institution comes within the definition of 'Math' if it satisfies three 'conditions (i) that the institution re for the promotion of the Hindu religion; (iH that it be presided over by a person whose duty is to erigage himself in spiritual service or who exercises or claims to exercise spiritual headship over a body of disciples; and (iii) that the office of such person .devolves in accordance with the directions of the founder of the institution or is regulated by usage. f 441El ' There was ample evidence on the recordto show that the property was presided over by the Mahant, that the Mahant exercised spiritual headship over the disciples, and that the successfon to the office of the Mahant was regulated by the usage of the institution. There could be no question that such an institution must have been for the promotion of the Hindu religion. [ 441Fl Religious endowment includes the premises of the Math. If the premises of the property had been used both for secular purposes and for religious purposes, it according to the explanation to sub-s. (12) of s. 6, shall be deemed to be a religious endowment and its adminisration shall be governed by the provisions of the Act. This makes 1t clear that the premises of the math is not only deemed to be a religious endowment, but is deemed to be a Hindu Public religious endowmet to which the Act applies, as the provisions of the Act govern 1ts administration. It follows that an institution which comes within the efu; ition of math un9'.er the Act, ipso facto, comes within the expression Hmdu public religious endowment' and therefore become subject to the provisions of the Act. [441H-442Bl\n\nMARANT P, AMANUJ v. STJP.AJNARAY~.N (Dayal, J.) 437\n\nA The definition of 'temple' requires that the place would be a temple if it be used as a place of public religious worship. There is no requirement that an institution to be a math must be a public institution for the promotion of the Hindu religion. The use of the word\n\n; public' was not necessary in connection with an institution for such promotion of the Hindu religion as. any institution for such Promotion of the Hindu religion must be of a public nature. the object being to B promote Hindu religion, there would be no point in shutting the benefit 01f the institution to anyone among the Hindus. [442C-D]\n\nThe distinction between a public trust and a private trust is, broadly speaking, that in a public trust the beneficiaries of the trust are the people in general or some section of the people, while in the case of a private trust the beneficiaries are an ascertained body of persons. The beneficiaries of a math are the members of the fraternity to which the math belongs and the persons of the faith to which the spiritual head of the math belongs, and constitute, therefore, at least a section of the public. Maths, in general, consequently, are public maths. [ 442E-Fl\n\n[QUAERE: Whether there can be a private math or not?]\n\n(2) The onus was initially on the appellant-plaintiff to show that the order of the Commissioner was wrong and this he could only show by estatlishing pri.ma facie that the Math was not a math as defined in the Act and that the various properties were not endowed properties. [ 443Hl\n\n(3) The gazetteer could re consulted on matters of public history. r447Bl ( 4) The documentary evidence on the record did not support the case of the appellant, but showed that the properties were those of the math.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 205 of 1964.\n\nAppeal by special leave from the judgment and decree dated November 30, 1961 of the Orissa High Court in First Appeal No. 63 of 1957.\n\nA. K. Sen and P. K. Chatterjee, for the appellant.\n\nNiren de, Addi. Solicitor-General, Dipak Datta Chaudhuri F and R. N. Sachthey, for respondent No. 2.\n\nThe Judgment of the Court was delivered by Raghuhar Dayal, J. This appeal, by special leave, is against the judgment and decree of the Orissa High Court, confirming the judgment and decree of the Additional Subordinate Judge, Puri, dismissing the suit instituted by Mahan! Gadadhar Ramanuj Das, represented after his death by Mahant Srinivas Ramanuj Das, for the setting aside of the decision of the Commissioner of Endowments dated July 20, 1946, under s. 64(]) of the Orissa Hindu Religious Endowments Act, 1939 (Act 4 of 1939), hereinafter called the Act, and for a declaration that the Act did not apply to the properties described in Schedules Ka, Kha and Ga of the plaint.\n\nThe allegations in the plaint are as follows. The premises on which the residential quarters of the plaintiff existed was said to\n\nSUPP.EYE OOURT REPORTS fiii66)\n\nSUPP.\n\n~.C.R.\n\nbe popularly known as (i) Srinivas Kote; (ii) Rajagopal Math; and A\n\n(iii) Emar Math, according to the names of the different ancestors of the plaintiff, Srinivasachari, Rajagopalachari and Embarachari.\n\nIt was alleged that these premises, though known as Emar Math, was not a 'math' as defined in the Act. The public had no free access to its premises and had no right of entry or worship of the deity installed therein. Embaracrari and his ancestors were alleged to be grahasts. His successors to the Emar Math were celibate. Srinivasachari was the grand-father of Embarachari. It is alleged that he acquired a portion of the present site of the plaintiff's residential quarters and built his residence there and installed therein his family deity Sri Raghunathji for his own spiritual benefit and the spiritual benefit of his family members and that Embarachari acquired a large plot of land adjacent to Srinivas Math as an absolute gift and constructed buildings thereon. The buildings therefore became popularly known as Emar Math, although Embarachari was a married man and was living there with his wife and children with the private deity Sri Raghunathji.\n\nThe plaintiff alleged that the properties described in Schedule\n\nKa of the plaint were his personal properties, those in Schedule D Ka-I as acquired through absolute gifts to the plaintiff or his ancestors and those in Ka-2 as gifted to or purchased by the plaintiff or his predecessors and that they were wrongly recorded in the settlement papers in the name of the plaintiff as marfatdar of Lord Jagannath. The properties in Schedule Kha are alleged to be Amrit Manohi properties of Lord Jagannath held by the plaintiff as marfatdar and to have been acquired either by purchase or 'kraya- E dan' or by way of gift subject to the charge of some offering to Lord Jagannath. The properties in Schedule Ga were alleged to be owned and possessed by the plaintiff as marfatdar of various private deities. It was alleged that none of the properties in these schedules was however dedicated to the public and that the public had no interest in or right to any of the properties. The properties therefore did not constitute 'public religious endowments' within F the meaning of the Act which, accordingly, could not apply to them.\n\nThe Commissioner of Hindu Religious Endowments, Orissa, hereinafter called the Commissioner, demanded contribution under s. 49 of the Act and took steps to enforce certain other provisions of the Act against the plaintiff and the properties in suit. This led G the plaintiff to formally ask for a decision under s. 64(1) of the Act. The Commissioner decided against him on July 20, 1946 and held that the Emar Math was a 'math' as defined in the Act and that the properties constituted a 'religious endo\\\\Tnent' to which the Act applied. Thereafter the plaintiff instituted this suit and prayed for the setting aside of the decision of the Commissioner H and for a declaration that the Act did not apply to the properties in suit.\n\n··\"'I\n\nMAl!AN'r RAMANUJ v. SURAJNARAYAN (Dayal, J.) 439\n\nThe Commissioner, defendant No. 2, contested the suit asserting that the properties in suit were public debottar properties and were public endowments to which the Act applied. It was further contended that the premises of Emar Math was a 'math' as defined in the Act and the public had a right to go there and had been actually going there from time immemorial.\n\nThe trial Court accepted the contentions of the defendant Commissioner and dismissed the suit. The High Court, on appeal by the plaintiff, agreed with the findings of the trial Court and accordingly dismissed the appeal.\n\nTwo main contentions have been raised before us. One is that the Emar Math in suit is not a public math and that therefore the Act does not apply to it. The other is that the properties in Schedule Ka were the personal property of the appellant-plaintiff and that the properties in schedules Kha and Ga were private debottar properties of the plaintiff. Before dealing with the contentions, we may refer to the object and the relevant provisions of the Act.\n\nThe Act was enacted for the better administration and governance of certain Hindu Religious Endowments. Section 2, sub-s. (a), states that the Act applies, save as !hereinafter provided, to all Hindu public religious endowments which, according to the Explanation to that sub-section, do not include Jain religious endowments. 'Math' is defined in subs. (7) of s. 6 as:\n\n\"'math' means an institution for the promotion of the Hindu religion presided over by a person whose duty is to engage himself in spiritual service or who exercises or claims to exercise spiritual headships over a body of disciples and succession to whose office devolves in accordance with the directions of the founder of the institution or is regulated by usage; and includes places of religious worship other than a temple and also places of instruction or places for the maintenance of vidyarthies or places for rendering charitable or religious services in general which are or may be appurtenant to such institution.\"\n\nSub-s. (10) of s. 6 defines the expression 'person having interest' to mean, in the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs. Sub-s. (12) of s. 6 defines 'religious endowment' or 'endowment' as meaning:\n\n\"all property belonging to, or given or endowed for the support of maths or temples or for the performance of any service or charity connected therewith whether or not such maths or temples be in ruins or the worship in\n\nncction with them is discontinued either temporarily \"cir permanently and includes the premises of maths or\n\ntemples.\"\n\n440 Slll'REl4E COURT BllPORTS (l!l6GJ Pl_TPI'.\n\n~.C II.\n\nThe explanation thereto reads:\n\n\"Where an endowment has been made or property given for the support of an institution which is partly of a religious and partly of a secular character or for the performance of any service or charity connected therewith, or where an endowment made or property given is appropriated partly to religious and partly to secular uses, such endowment or property or the income therefrom shall be deemed to be a religious endowment and its administration shall be governed by the provisions ot this Act.\" According to sub-s (JJ) of s. 6, 'temple' is defined as follows:\n\n\"'temple' means a place, by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community, or any section thereof, as a place of religious worship and also includes any cultural institution or mandab or library connected with such a place of public religious worship.\" General superintendence of all religious endowments vested in the Commissioner under s. 11 of the Act. Clause (b) of sub-s. (I) of s. 12 requires the Commissioner to maintain a register for every math or temple and all title deeds and other documents rebting thereto. Sub-s. (2) provides that the register shall be prepared. verified and signed by the trustee of the math or temple or by his authorised agent and submitted by him to the Commissioner within such period after the rnmmencement of the Act a>; the Commissioner may fix. Sub-s. rn authorises the Commissioner to make such enquiry as he mav consider necessary and to direct that the register be approved with such alterations. omissions or additions as he thinks fit to order. Section 13 requires the annual verification of the entries in this register.\n\nSection 46 reads:\n\n\"The trustee of a math or temple may. out of the funds of the endowments in his charge, after satisfying adequately the purposes of the endowments. incur expenditure on arrangements for securing the health. safety or convenience of disciples, pilgrims or worshippers resorting to such math or temple: Provided that the Commissioner may. for reasons to be setforth in writing. restrict and place unc!cr such control as he may think fit the exercise by the trustee of his discretion under this section.\" Section 49 provides that every math or temple and every specific endowment attached to a math or tmple shall pay annual_ly._contributions at specified rates for meetmg the exoenses of the Commissioner when the annual income exceeds a specified amount.\n\nA .,\n\nMAHAJ'l:T RAMANtlS v. StJRASNARAYAN (Dayal, J.) 441\n\ntinder s. 51 (1), the amount of contributions payable by a math under s. 49 was to be assessed on and notified to the trustee of the math, temple or specified endowment concerned in the prescribed manner. The trustee can object to the assessment and has to pay such amount as be finally determined by the Commissioner on considering the objection.\n\nSection 64 reads:\n\n\"(!) If any dispute arises as to whether an institution is a math or temple as defined in this Act or whether a temple is an excepted temple, such dispute shall be decided by the Commissioner.\n\n(2) Any person affected by a decision under subsection (]) may, within one year, institute a suit in the Court to modify or set aside such decisions; but subject to the result of such suit, the order of the Commissioner shall be final.\" Before we deal with the contention about the Emar Math being not a public math, we may first consider what the Commissioner had to do under s. 64(1) of the Act. The Commissioner had to decide under that sub-section whether the Emar Math was a math as defined in the Act. He held that it was and we have to see whether he was right in so doing.\n\nAn institution comes within such a definition if it satisfies three conditions: (i) that the institution be for the promotion of the Hindu religion; (ii) that it be presided over by a person whose duty is to engage himself in spiritual service or who exercises or claims to exercise spiritual headship over a body of disciples; an'.!\n\n(iii) that the oflice of such person devolves in accordance with the directions of the founder of the institution or is regulated by usage.\n\nThere is ample evidence on the record to show that the Emar Math was presided over by the Mahan!, that the Mahant exercised spiritual headship over the disciples, and that the succession to the oflice of the Mahant was regulated by the usage of the institution. There could be no question that such an institution must have been for the promotion of the Hindu religion. It was for such an object that one would have a body of disciples. It is in evidence that the Mahanl used to preach and had a large number of disciples who were attracted by the high reputation the Mahant enjoyed. It is said that Embarachari was regarded with great respect in his times and that it was on account of such respect that the gift of the land evidenced by the Deed, Exhibit 110, executed sometime is 1767, was made in his favour.\n\nJt is not disputed for the appellant that the institution is :i H math. What is disputed is that it is not a public math as required by the Act. The premises of the Emar Math constituted a religious endowment, which includes the premises of maths or temples.\n\n' -.-i- - ' . ~. - '. '\n\n442 - .\\ _ (1966] SUPP. s.C.R.\n\n-~-~-- ---·----\n\n. \\ SUPREME COURT REPORTS\n\n. , Further, if the premises of the Emar Math had been used both for secular purposes arid for religious purposes, it, according to the explanation to sub-s. (12) of s. 6, shall be deemed to be a religious endowment and its administration shall be governed by the provisions of the Act. This makes it clear that the premises of the Math is not only deemed to be a religious endowment, but is deemed to be -a Hindu public religious endowment to which the Act applies, as the provisions of the Act govern its administration. It follows that an institution which comes within the definition of 'math' under the Act, ipso facto comes within the expression 'Hindu public religious endowment' and therefore becomes subject to the provisions of the Act. In this connection, reference may be made to the definition of 'temple'. While the definition of 'temple' requires that the place would be a temple if it be used as a place cif public religious worship, there is no requirement that an institution to be a math must be a public institution for the promotion of the Hindu religion. The - use of the word 'public' was not necessary in connection with an institution for the promotion of the Hindu religion as any institution for such promotion of the Hindu religion must be of a public nature; the object being to promote Hindu religion, there would be no point in shutting the benefit of the institution to anyone among the Hindus. -\n\nThe distinction between a public trust and a private trust is, broadly speaking, that in a public trust the beneficiaries of the trust are the people in general or so:ne section of the people, while in the case of a private trust the beneficiaries are an ascertained body of persons. The beneficiaries of a math are the members of the fraternity to which the math belongs and the persons of the faith to which the spiritual head of the math belongs, and constitute therefore at least a section of the public. Maths, in general, consequently, are public maths. We say nothing as to whether there can be a private math or not. Mukherjea states at p. 390, in !1is 'Law of Endowment', !st Edition: 1.\n\n\"By private math should be meant those institutions\n\n- ·· where the head or superior holds the property not on behalf of an indeterminate class of persons or a section of the public but for a determinate body of individuals, viz.; the family or descendants of the grantor.\" In the-present case, there is no evidence as to who actually founded the Math by granting the property to the spiritual preceptor. The earliest. evidence on the record is of year I 767 when a piece of land was gifted to Emar Gosain on which a portion of the present Math stands. However, there is no evidence, wl1ocver the founder be, that any particular family is the only body of persons who is interested in the Math. The spiritual family of the preceptor consisting of his disciples and the disciples in succession, cannot be deemed to be such a private family for whose benefit\n\n__ ..,..,,_....,_\n\n,. .\n\nF ..\n\nMAHANT RAMANUJ v. SURAJNARAYAN (Dayal, J.) 443\n\nthe Math is founded and on that account the Math be called a private Math. The body of disciples and the disciples' disciples etc., is a very unascertainable body. The Emar Math is therefore not such a private math.\n\nMuch has been said on either side with respect to the onus in connection with the Math being public or not. Onus loses its importance when the parties have led evidence sufficient to determine the matter in dispute. The High Court agreed with the trial Court that the onus was on the plaintiff-appellant to establish that the institution was the private property of the Mahan!. It is said in para 10 of its judgment that the initial burden of showing that the Commissioner's decision was wrong was on the plaintiff and that apart from the appellant's position as plaintiff he had a heavy burden to establish affirmatively that the institution was the private property of the Mahant.\n\nIt is contended for the appellant that the initial onus lay on the defendant-respondent to establish that the Math was a public math. Reliance is placed on several cases of which reference may be made to Parma Nand v. Nihal Chand(') in which the Privy Council approved of the view of the High Court that it was for the defendants to prove that the plaintiff who was admittedly in possession of the property held it on a trust created for a public purpose of a charitable and religious nature. The application was made to the District Judge by some representatives of the Hindu public alleging that the Baghichi Thakaran was a public endowment for religious and charitable purposes, and calling upon Mahan! Narain Das to furnish details of the nature and purposes of the trust. Narain Das then instituted the suit which ultimately went to the Privy Council.\n\nSection 5(3), the Charitable and Religious Trusts Act, 1920 (Act 14 c; f 1920) provides for the stay of proceedings before the Judge under s. 3 of that Act, in order that the person denying the public nature of the trust may institute a suit for a declaration that the property was not trust property. There was no decision of any binding nature by the Court or by any authority which was to be avoided by the plaintiff instituting a suit for a declaration that the property was not trust property. In the present case the suit was instituted in pursuance of s. 64(2) of the Act which provides that any person affected by a decision under its sub-s. (I) may, within1 one year, institute a suit in the Court to modify or set aside such decision and that, subject to the result of such a suit, the order of the Commissioner shall be final. The plaintiff-appellant instituted this suit for the setting aside of the order of the Commissioner under sub-s. (I) of s. 64 holding the institution to be a 'math' as defined in the Act and the property belonging to it endowed properties. This order of the Commissioner is final, subject to the result of the suit. The plaintiff has to get over it to avoid that decision.\n\nThe onus is therefore initially; on the plaintiff to show that the\n\n(') L, R, 65 I.A. 252.\n\nSUPREME COURT UPORTS [1966) SUPP. 8.C.R.\n\norJcr or the Commissioner is wrong and this he can only show by establishing prima facie that the Math is not a math as defined in the Act and that the various properties were not endowed properties.\n\nLearned counsel for the parties have argued on the basis that \\he Act applies to public matbs. It is urged for the appellant that it is not proved to be a public math, while the respondent contends lo the contrary. Undoubtedly, the Math had been h existence for over two centuries. Oral evidence about the founding of the Math\n\n:ould not be possible after such a long period. The mahant of the Math has not come in the witness box. The Courts below have held the Math to be a public math on the basis of several considerations. These arc that the Mahants had been celibate and therefore not likely to have personal ownership in the property including even the dakshinas or cash offered to them, by disciples or other devotees. Religious books. viz.. the Bhagavad Gita and the Ramaynn. are recited daily in the temple of Ragbunathji. There was also the image of Ramanuj. the founder of the cult. This image is carried in procession for five days around the compound of the main temple of Lord Jagannath at Puri. This could be to provide darshan to the devotees of the Vaishnav faith. Some ascetics called babajis reside at the math and are fed by the math authorities. The buildings of the math are many. much beyond the requirements of the Mahant and the few resident disciples. The Mahants of this Math have the privilege of rendering service to Lord Jagannath bo1h in the temple and in the Gundicha Mandir. They also manage the Amrit Manchi properlies the proceeds from which are utilised for olTering bhog to Lord Jagannath and the Maha Prasad therefrom is distributed to the poor pilgrims and the Vaishnav visitors.\n\nApart from these considerations. certain documents relied upon by the High Court tend to favour the finding that Emar Math is a public math and that the various properties, though ostensibly acquired by the Mahants, were really acquired f<YT the Math. The first document of importance in this respect is Exhibit 110 of I 767.\n\nIt is a deed of gift by a private person in favour of Sadhu Emar Gosain. the Adhikari of Ramanuj Kote Math. P.W. 2 states that Ramanuj Kote belongs to Emar Math area. This description supports the conclusion that the Math. though under a different name. had been in existence from befdre the time of Emar Gosain. The plaint alleges that the premises in suit had been known by different names. The gift deed states that the donee will enjoy the property gifted in perretnity. The idea of perpetuity is further emphasised when ii is said in the gift deed:\n\n\"Your Chelas. Sishyas and Anusishyas shall all enjoy this property for ever in perpetuity until the sun and moon last.\" This stipulation shows that it was not a gift personally to Emar, that the gift was for the benefit of chebs. sishyas and anusishyas and that it was in favour of persons indeterminate in number. The\n\n>- .\n\n' ..\n\n•. ·~\n\nMAllANT RAMANUJ V. RURAJNAP.AYAN (Dayai, J.J 145\n\nfact that the chelas are distinguished from sishyas and anusisbyas shows that the chela is the nominee of the Guru for the purpose of succession and that though the chela would succeed to the Gaddi. he would hold the properties not for personal enjoyment but for the benefit of sishyas and their sishyas-indicating that the property was trust property. Further, the land donated by this document admittedly is a portion of the site on which the Math stands. The gift of such land could be for no other object but for the purpose of the construction of the Math and therefore a gift to the Math, though it would normally be in the name of the Mahant, the head of the Math.\n\nAnother document of importance in this connection is the Will, Exhibit 140. executed by Mahan! Mohan Dass in 1857 in favour of his disciple who was the subsequent Mahan! by the name Mahan! Raghunandan Das. This Will, besides speaking of the careful training given to Raghunandan Das making him fit to succeed to the gaddi, states :\n\n\"After me the said Raghunandan as my successor in the Mahantai Gaddi shall become the Mahan!, Malik and Gadanashin and shall continue to exercise ownership and possession in respect of all the properties as he is doing now and shall enjoy as the rightful owner and Malik of all the movable properties of and connected with this Math both within this part of the country and outside (Desh Bideshare) and shall continue to manage the rendering and supplying of the fixed Sheba Puja offerings and Bhog etc. of Shri Jagannath Mohaprabhu in accordance with the traditional customs and shall give food and shelter, as he is doing now. to Bhaishnab guests and other persons arriving in the Ma.th (Abhyagata) etc., and committing no ]aches in this and remaining in observance of his own religion, shall manage all affairs\".\n\nF The last expression with respect to giving of food and shelter to Vaishnay guests and other persons arriving in the Math etc. indicates that visitors. belonging lo the Ramanuj Sampraday, used to visit the Math when on a pilgrimage to the Lord Jagannath Temple and the Mathadhish of Emar Math used to give shelter and food to them and the will enjoined the nominee to continue that practice. Such a practice shows that the beneficiaries of the Math properties were G again indeterminate in number. The gift being to the Math, though ostensibly in the name of the Mahant, the Mahant held the properties as a trustee for the indeterminate class of beneficiaries, viz., sishyas, nnusi, hyas and visitors. This stamps the Math with the public character. It is significant to note that there is not a word in this document to the effect that Mahan! Mohan Das possessed any H private property aud that such private property was to go to Raghu· nandan Das who was to succeed him on the gaddi or to somebody else. The only conclusion from such an omission can l;>~ that Mahant\n\ns1; P1EYE COURT REPORTS\n\n(1966] SUP!'. s.c.n.\n\nMohan Das did not consider any property to be his own personal propcfrty. Whatever he posaessed and over which he exercised ownership was considered to be the property of the Math or properties connected with the Math and that his successor was to exercise ownership and possession over all such properties.\n\nWe therefore hold that the Emar Math is a math as defined in the Act and that it is a public math.\n\nThe history of the Emar Math, according to the passage in the Puri Gazetteer, fits in with our finding. The High Court has relied on what has been stated in the Puri Gazetteer of O'Malley of 1908, at pp. 112-113. The relevant portion of the passage relied on is the following:\n\n\"No account of Jagannath worship would be complete without some account of the maths in Puri. Maths are monastic houses originally founded with the object of feeding travellers, beggars, and ascetics. of giving religious instruction to chelas or disciples, and generally of encouraging a religious life. The heads of these religious houses who are called Mahant~ or Mathadharis are elected from among the chelas, and ere assisted in the management of their properties by Adhikaris who may be described as their business managel'll. They are generally celibates but in certain maths married men may hold the office. Mahants are the gurus or spiritual guides of many people who present the maths with presents of money and endowments in land. Thus, the Sriramdas or Dakshinaparswa Math received rich endowments from the Mahrattas its abbot having been the guru of the Mahratta Governor; While the Mahant of Emnr Math in the eighteenth century who had the reputation of being a very holy ascetic, similarly got large offerings from his followers.\n\nBoth Saiva and Vnishnava Maths exist in Puri. The lands of the latter arc known as Amruta Manchi (literally nectar food), bee<1use they were given with the intention that the proceeds thereof should be spent in offering bhoga before Jagannath and that the Mahaprasad thus obtained should be distributed among pilgrims. beggars and ascetics; they are distinct from the Amruta Manchi lands of the temple itself which are under the superintendence of the Raja. In 1848 Babu Brij Kishorc Ghose roughly estimated the annual income of 28 maths from land alone at Rs. 1.45,400 and this income must have increased largely during the last sixty years.\n\nThere are over 70 maths in Puri Town. The Chief Saiva maths are located in the sandy tract near Swarga dwar. viz., Sankaracharya math with a fine library of old manuscripts 1nd Sabkarananda math which has a branch pi J; lbubanshwar. Most of the maths are naturally\n\nA r\n\n...\n\n, i.\\\n\n... -~\n\n.·~\n\nMAUANT RAMANUJ v. SURAJNAP.AYAN (Dayal, J.) 447\n\nVaishnava. The richest of the latter are Emar, Sriramdasa and Raghavadasa the inmates of which are Ramats or followers of Ramananda.\" It is urged for the appellant that what is stated in the Gazetteer cannot be treated as evidence. These statements in the Gazetteer are not relied on as evidence of title but as providing historical material and the practice followed by the Math and its head. The Gazetteer can be consulted on matters of public history.\n\nThe next question relates to the nature of the properties in suit.\n\nThe oral evidence about the foundation of the Math or about the various acquisitions of property by purchase or by gift is nil.\n\nWhatever a witness has deposed has not been on the basis of his personal knowledge. This is natural when the Math was founded about two hundred years ago and when most of the acquisitions had taken place long ago. The best person to speak, though not from personal knowledge, could have been the Mahant himself.\n\nHe can base his knowledge on the documents about the history of the Math and the acquisition of the properties. Such documents must naturally be in the custQldy of the Mahant. The Mahant has not come in the witness box. All the documents have not been produced. In fact it is the plaintiff alone who produced a number of documents but he had picked and chosen from among the documents in his possession. Some documents which could have thrown some light on the question under determination have not been produced. It is true that the defendant-respondent also did not call upon the plaintiff-appellant to produce the documents whose existence was admitted by one or the other witness of the plaintiff and that therefore, strictly speaking no inference adverse to the plaintiff can be drawn from his non-producing the list of documents. The Court may not be in a position to conclude from such omission that those documents would have directly established the case for the responden, t. But it can take into consideration in weighing the evidence or any direct inferences from established facts that the documents might have favoured the respondent's case.\n\nThe documents relied upon for the appellant relate to acquisition of properties by purchase or gift and are in the name of the Mahant of the Math. Such documents being in the name of the Mahant alone, do not necessarily lead to the conclusion that the G properties were acquired or received in donation by the Mahant in his personal capacity for his personal use and possession. An inference that they were acquired by the Mahant for the Math is equally possible and in fact is to be preferred to what appears on the face of the documents. The onus of proof being on the appellant, it was possible for him to establish his case from the documents H available to him. But he has chosen not to place at the disposal of the Court all the relevant documents. It is significant to note that not a single document has been produced by the plaintiff\n\nSl'PIUOM& COURT REPORTS [1966] SUPP. s.o.B,\n\nwhich specifically mentioned the purchase or the gift to be by or to A the Math itself. It is difficult to believe that the'Math acquired no property during the long period of its existence. The Mahant as the head of the institution acts for the Math and is its real representative. All the dealings for and on behalf of the Math must be conducted by the Mahant and it should be no wonder if the Mahant acting for the !\\lath acts ostensibly in his own name. Though the\n\nB .. documents relating to purchase of properties have been produced, no evidence was led to show that they were purchased ffom the personal assets of the Mahant. Presumably if there was such evi dence, it would have been produced. The only possible inference which can be drawn is that they were purchased from the assets of the Math.\n\nReference mav be made to Sitaram Dass Banasi v. H.R.E. Board Madras(') and to Raghbir Lala v. Mohammad Said('). In the former case, Varadachariar, J. said:\n\n\"From the few sale deeds filed in the case, it no doubt appears that some of those properties were pur chased in the name of the prior Mahant; but it being admitted that he was an ascetic and celibate and the head of the institution, the probabilities are that they were purchased with the funds of the institution.\" and in the latter it was said:\n\n\"No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have importance.\" Reference may also be made in this connection to the Order.\n\nExhibit 136, of the Maharaja of Puri, to Dewan Bhramarbar Ray.\n\nThe order states:\n\n\"The Maharaja hereby grants this Sananda taking Rs. 3,000 that he has granted the following 145 Batis and 15 Manas of land. that the income of this land will be utilised in Bhog of Lord Jagannath and distributed among the coming Raishnabas. The 19th day of Mass. Anka 2.\n\nl. Rahang. Ph. Alisa-117 Batis and 15 Manas.\n\n2. Out of Bania Kera-IO Batis.\n\n3. Chabiskud, Ph. Tinikud-18 Batis.\"\n\nOf the three properties mentioned in this order, the first one belongs to Schedule Ka I. the second to Scedulc Kha and te third to Schedule Ka-2, attached to the plamt. The property m Schedule Ka-I is the property which is said to have been ac quired by the plaintiff and h_is ancestors. 1:he property in. Sh~- H dule Ka-2 is the property said to be acqmred by the plamuff s\n\n(') IJ,.R. 193D!ad.197: A.I.B. 1937 !.rad. 18&-187. (') A.I.R. t9,3P.O. 79.\n\nitAHAl<T RAA!ANUJ i. 8URAJNARAYAN (Dayal, J.) 449\n\nA ancestors for personal services to Lord Jagannath while the properties in Schedule Kha are said to be acquired subject to a charge of offering Bhog to Lord Jagannath. The order makes no distinction in the nature of the objects for which the three properties are given. In fact it shows that the income from all the three properties was to be utilised in offering Bhog to Lord B Jagannath, and for distributing the prasad among the Vaishnavas who would visit the place. There is nothing in this order that any of the properties was for the personal enjoyment and possession of the Mahant alone. Tt is not possible to hold that the properties covered by the same grant should fall in different categories as is the case, according to the schedules attached to the plaint. c\n\nApart from tthese general considerations, the documentary evidence on record does not support the case of the plaintiff with respect to the properties in schedule Ka-I and Ka-2. It may also be mentioned at this stage that there is no document on record with respect to the properties in schedules Kha and Ga. We have already referred to document Exhibit 110, the gift deed with respect to the land which forms part of the site of the Math.\n\nExhibit 112 refers to certain land given to the Adhikari of Emar Math for building a temple for the God.\n\nThe document states that the drain for the gruel from the temple of Lord Jagannath used to pass over this land and that this drain had to be shifted.\n\nIt is difficult to believe that the land which was being used in connection with a public temple would have been given for the purpose of personal enjoyment by the Mahan! or for the purpose of constructing a private temple.\n\nThe land mentioned in Exhibit 115 and Exhibit 116 were . acquired by the Mahan! on payment of certain amounts. He was further required to pay certain amount towards the 'Kotha Bhoga' of Lord Jagannath. Exhibit 117 relates to a land purchased by the Mahant. He was required to pay certain amount towards F Chamar Seba of Lord Jagannath.\n\nExhibit 118 mentions that certain land which the Mahant .. had purchased was being assigned to his Math in order that he might enjoy it for all times to come. This clearly brings out that the land purchased by the Mahan! from some person was made over to the Math. He was exempted from payment of all sorts G of extra taxes or other similar duties. Exemption from revenue and taxes appears to have been granted because it was under- _,. stood that the lands were of the ownership of the Math and not the personal properties of the Mahan!. Even this property which has been clearly assigned to !he Math, according to this document is mentioned. in Schedule Ka-1, indicating thereby that no H particular care had been taken in preparing the schedule which just included the properties which had been acquired by sale deeds.\n\n• t , •\n\n' sul'RF.llt OOt; RT REPORTS [l!l66i\n\nSUPP.\n\nS.C.R.\n\nExhibit 119 sanctions certain purchases by Mahan! Samuja- A matra and states that he wHI enjoy the same for all time to come on dedication of all sorts of requirements for Gund ichaghar Chali (House of Lord Jagannath).\n\nNo other demand towards Kotha should be made on him. This again clearly indicates that the property was dedicated for meeting the expenses of Gundichaghar Chali and was exempted from any other demand towards B the Kotha presumably the Kotha Bhog of Sri Lord referred to in Exhibits 115 and 116. This property is included in Schedule Ka-2.\n\nIt appears that the various maths at Puri were founded by saints following different cults, but devoted to Lord Jagannath.\n\nThey had to offer seva to Lord Jagannatb in different fonns, e.g., offering Bhog and getting back Maha Prasad, Chamar Seva i.e., fanning of the Lord etc. For Bhog or other services which requir ed expenses, the saints were in need of funds and naturally the devotees of the saints would make gifts to them to enable them to perform these services. Gifts of property to the Mabants or exempting the Mahants to pay taxes etc. with respect to the lands purchased by them was therefore merely to provide them with funds necessary for rendering services to Lord Jagannath, on behalf of the Math and also to meeting the necessary expenses in running of the Maths which would include expenses on the maintenance of the buildings, feeding of the Mahan! and the disciples and such other persons who came to reside at the Math and also for distributing food to the poor.\n\nThe documents referred to above make this amply clear and thus show that the properties to which they relate do not belong to the Mahant personally but really belonged to the Math. It makes no difference to the nature of the properties whether they were purchased by the Mahants in their own names or in the names of the Math.\n\nSome properties have been shown to be purchased by the chelas of the Mahants previous to their occupying the gaddi of the Mahan!, that is to say, such properties were purchased when they were mere chelas and not mahants. It is therefore submitted for the appellants that these properties could not be held to be math properties now. It is true that the presumption that the properties that were obtained during the period when they were not Mahants cannot be presumed to be properties purchased or acquired for the Math. But the fact remains that when they them selves became Mahants such self-acquired properties did not appear to have been treated in any separate manner.\n\nProceeds from such properties were mixed up with the proceeds of the other property. Letters. Exhibits C & D. by Mahant Gadadhar Des to the Commissioner speak of the entire mingling of the accounts of the private and Math properties. Some witnesses of tbe plaintiff stated that Gadll(lhar Das told them later that he had made wrong statement in those letters for ulterior purposes.\n\nCourts below did not rightly believe such statements. Further, it\n\n• ..\n\n~ 1\n\n- ~\n\n; ). l I\n\ni J c ' .\n\nL-. ·.,\\\n\nMAirAN'.r jlAMAl!\\Jj tJ, suRAhiARAYAN ; hayai, .T.) 451\n\nmay be noted that it appears from the sale deed, Exhibit 77, executed in favour of Gadadhar Ramanuj Das, Chela of Mahan!\n\nRaghunandan Ramanuj Das in 1909, that the founder owed a sum of Rs. 400 /- to the Mahan! Guru of Gadadhar and that this sum was ad justed towards the purchase price of the property conveyed under this deed. Mahan! Mohan Das, by his will Exhibit 140, permitted his Chela Raghunandan, who was nominated to succeed him to get his own name gradually mutated in respect of the lands and zamindaris standing in the name of the Mahan!.\n\nIt follows therefore that the mere fact that certain properties were ostensibly purchased by the chelas does not necessarily mean that those properties were either acquired as their personal properties or that they continued to be their personal properties after they succeeded to the gaddi.\n\nThe plaintiff has failed to produce the expenditure accounts with respect to the income from the properties in suit. He has not produced the consofidated budget which is prepared. That could have indicated whether the income and expenditure over the property in suit was treated as of the Math or not. Accounts showing the sources of money from which the properties were acquired have not been produced. These omissions, together with statements in letters Exhibits C & D, are sufficient to support the findings of the Courts below that even these properties had been treated as Math properties.\n\nWe are therefore of opinion that the properties mentioned in Schedules Ka-I and Ka-2, alleged to be the personal properties of the Mahan!, are not his personal properties but are properties of the Math.\n\nWe may now consider the properties in schedule Kha said to be the Amrut Manohi properties of Lord Jagannath and held by the plaintiff as marfatdar. The plaintiff alleges that these properties were acquired either by purchase or 'krayadan' or by way of gift subject to a charge of some offering to Lord Jagannath which depended upon the individual judgment and discretion of the plaintiff, and that the public had no concern with the enjoyment or management of the usufruct thereof.\n\nThe Gazetteer makes a reference to such properties and states: -\n\n\"Both Saiva and Vaishnava Maths exist in Puri. The lands of the latter are known as Amruta Manohi (literally nectar food), because they were given with the intention that the proceeds thereof should be spent in offering bhoga before Jagannath and that the Mahaprasad thus obtained should be distributed among pilgrims. beggars and ascetics; they are distinct from the Amruta Manohi lands of the Temple itself which are under the superintendence of the Raja''.\n\nSUl'REllK <X, URT REPORTS t1966] SUPP. s.c.tt\n\nThis statement makes it clear that lands endowed to the temple A of Lord Jagannath arc distinct from the lands or property en dowcd to the Vaishnava Maths for the purpose of utilising the proceeds of those properties for offering bhoga before Lord Jagannath and the subsequent distribution of that Mahaprasad among pilgrims, beggars and ascetics, presumably visiting the Math, or approaching its authorities for a portion of the Maha Prasad.\n\nB The mere fact that the proceeds of the properties were to be so used, would not justify the conclusion that these properties were not endowed to the Maths but were endowed to the temple of Lord Jagannath.\n\nProperties endowed to the temple of Lord Jagannalh were. according to this statement, in the Gazetteer, not under the superintendence uf any Math or Mahant but under the superintendence of the Raja of Puri himself. 0\n\nAs already stated, these Amrit Manohi properties arc pro perties which are endowed to the Math by the devotees for a particular service, which is done to Lord Jagannath by the Mahant on behalf of the Math. The properties are therefore properties endowed to the Math and not merely gifted to the plaintiff or, as had been suggested, to Lord Jagannath.\n\nThe properties in Schedule Ga arc said to be endowed to private deities whose sole marfatdar was the Mahant. The properties in this schedule are 200 in number and entries about them refer them to be of many a deity. These properties too appear to be endowed to the Math in the same way as Amrut Manohi properties had been endowed, that is lo say, the devotees of the Mahant provided for the offering of Bhog or any other seva to E the various deities by the Mahant as rcpresenling the Math. There is nothing unusual about it as a Hindu's devotion is not necessarily lin1itcd to one particular deity. to whichever persuasion of the Hindu religion he may belong. The Mahant of a Math, and of such a well-renowned Math as the Emar Math, is not expected otherwise to be the marfatdar of so many deities as a result of F properties endowed by a number of persons. The very fact that the Mahan! of Emar Nath took upon himself the marfatdari of so many deities indicates that his devotees could think of endowing properties to the Math for the purpose of doing seva of other deities as well.\n\nThe fact that the appellant has paid income-tax and municipal taxes with respect to the income from certain proprties in G suit is not sufficient to rebut the inference to be derived from the various other facts mentioned above.\n\nWe therefore hold that the properties in the Schedules to the plaint arc the properties of the Math. The result is that the decree of the High Court is correct and the appeal is dismissed with costs.\n\n'Appeal dismissed.", "total_entities": 37, "entities": [{"text": "nAs\n\nSURAJr<ARAYAN DASS &.ANR", "label": "RESPONDENT", "start_char": 51, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "SURAJNARAYAN DASS & ANR", "offset_not_found": false}}, {"text": "SARKAR, C.J.", "label": "JUDGE", "start_char": 103, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 117, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "R. S. BACHAWAT", "label": "JUDGE", "start_char": 134, "end_char": 148, "source": "metadata", "metadata": {"canonical_name": "R.S. BACHAWAT", "offset_not_found": false}}, {"text": "M. SHELAT", "label": "JUDGE", "start_char": 155, "end_char": 164, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT", "offset_not_found": false}}, {"text": "Orissa Hindu Religious Endowments Act, 1939", "label": "STATUTE", "start_char": 195, "end_char": 238, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 49", "label": "PROVISION", "start_char": 530, "end_char": 535, "source": "regex", "metadata": {"linked_statute_text": "Orissa Hindu Religious Endowments Act, 1939", "statute": "Orissa Hindu Religious Endowments Act, 1939"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 2471, "end_char": 2475, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Public religious endowmet to which the Act", "label": "STATUTE", "start_char": 2711, "end_char": 2759, "source": "regex", "metadata": {}}, {"text": "s. 64(])", "label": "PROVISION", "start_char": 5663, "end_char": 5671, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa Hindu Religious Endowments Act, 1939", "label": "STATUTE", "start_char": 5679, "end_char": 5722, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 7353, "end_char": 7363, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 49", "label": "PROVISION", "start_char": 8478, "end_char": 8483, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 64(1)", "label": "PROVISION", "start_char": 8669, "end_char": 8677, "source": "regex", "metadata": {"statute": null}}, {"text": "One is that the Emar Math in suit is not a public math and that therefore the Act", "label": "STATUTE", "start_char": 9781, "end_char": 9862, "source": "regex", "metadata": {}}, {"text": "Section 2", "label": "PROVISION", "start_char": 10295, "end_char": 10304, "source": "regex", "metadata": {"linked_statute_text": "One is that the Emar Math in suit is not a public math and that therefore the Act", "statute": "One is that the Emar Math in suit is not a public math and that therefore the Act"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 10552, "end_char": 10556, "source": "regex", "metadata": {"linked_statute_text": "One is that the Emar Math in suit is not a public math and that therefore the Act", "statute": "One is that the Emar Math in suit is not a public math and that therefore the Act"}}, {"text": "s. 6", "label": "PROVISION", "start_char": 11203, "end_char": 11207, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 11393, "end_char": 11397, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 12411, "end_char": 12415, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 12899, "end_char": 12904, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 12945, "end_char": 12950, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13", "label": "PROVISION", "start_char": 13552, "end_char": 13562, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 46", "label": "PROVISION", "start_char": 13630, "end_char": 13640, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 49", "label": "PROVISION", "start_char": 14151, "end_char": 14161, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 51", "label": "PROVISION", "start_char": 14470, "end_char": 14475, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 49", "label": "PROVISION", "start_char": 14533, "end_char": 14538, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 64", "label": "PROVISION", "start_char": 14812, "end_char": 14822, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 64(1)", "label": "PROVISION", "start_char": 15402, "end_char": 15410, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 17424, "end_char": 17428, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5(3)", "label": "PROVISION", "start_char": 22082, "end_char": 22094, "source": "regex", "metadata": {"statute": null}}, {"text": "Charitable and Religious Trusts Act, 1920", "label": "STATUTE", "start_char": 22100, "end_char": 22141, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 3", "label": "PROVISION", "start_char": 22221, "end_char": 22225, "source": "regex", "metadata": {"linked_statute_text": "the Charitable and Religious Trusts Act, 1920", "statute": "the Charitable and Religious Trusts Act, 1920"}}, {"text": "s. 64(2)", "label": "PROVISION", "start_char": 22641, "end_char": 22649, "source": "regex", "metadata": {"linked_statute_text": "the Charitable and Religious Trusts Act, 1920", "statute": "the Charitable and Religious Trusts Act, 1920"}}, {"text": "s. 64", "label": "PROVISION", "start_char": 23040, "end_char": 23045, "source": "regex", "metadata": {"linked_statute_text": "the Charitable and Religious Trusts Act, 1920", "statute": "the Charitable and Religious Trusts Act, 1920"}}, {"text": "s1", "label": "PROVISION", "start_char": 29415, "end_char": 29417, "source": "regex", "metadata": {"statute": null}}, {"text": "therefore hold that the Emar Math is a math as defined in the Act", "label": "STATUTE", "start_char": 29774, "end_char": 29839, "source": "regex", "metadata": {}}]}
{"document_id": "1966_1_453_463_EN", "year": 1966, "text": "F l\n\ni .... .\n\nJ \"\n\n1 •\n\nFATEHCHAND MURLIDHAR AND ANH •\n\nCOMMISSIONEH OF INCOME-TAX, CALCUTTA\n\nJuly 19, 1966\n\n[K. N. WANCHOO ANDS. M. S!KRI, JJ.]\n\nIncome-tax Act (11 of 1932), s. 23(5)(a:-Scope of-Partnership- Sub-partnership between a pa.rtner and strangers-Agreement-to share profits and losss of partner in the Partnershqr--Income from the Partnership-Whether belongs to partner or sub-partnership.\n\nThe assessee was a partner in a registered firm. In 1949, he entered into a partnership with persons v.rho \\vere strangers to the registered firm and a deed of partnership was executed between them.\n\nIt recited that the profits and losses for the share of the asscssce in the registered firm should belong to the new firm and be divided and borne by the partners of the new firm in accordance with the shares specified in the deed.\n\nOn the question whether the income of the assessee from the registered firm for the years 1952-53, 1953-54 and 1955-56, should be jncluded in his individual assessment,\n\nHELD: The income should be included in the assessment of the new firm and not in the personal assessment of the assessee.\n\n(i) The new partnership constituted a sub-partnership in respect of the assessee's share in the registered firm. Tn the case of a subpartnership, it creates a superior title and d1verts the lncome before it becomes the inoome of the partner, that is, the partner in the main firm receives the income not only on his o\\vn behalf but on behalf of the partners in the sub-partnership. The fact that a sub-partner can have no direct claim to the profits vis-avis the other partners of the main firm and that it is the partner alone who is entitled to the profits vis-a-vis the other partners in the main firn1, does not show that the changed character of the partner should not be taken into consideration for income-tax purposes. r461E-F; 462Cl\n\nIii) The object of s. 23(5)(a) is not to assess the firm itself but to apportion the income among the various partners. After the income has been apportioned, the Income-tax Officer has to find whether it is the partner who is assessable or whether the income should be taken to be the real income of some other person. If it is the real income of another firm, it is that firm which is liable to be assessed under the section. There is nothing in the section that prevents the income of the assessee from the registered firm being treated as the income of the sub-partnership and the section being applied again.\n\nG r463C, Fl Charandas Haridas v. Commissioner of Income Taa:, S.C.R. 296, and Commissioner of Income Tax, Bombay v.\n\nTirathdas [19611 3 S.C.R. 634, followed.\n\n[1960] 3 Sitaldas\n\nCommissioner of Income Ta~-:c, Punjab v. Laxmi Trading Co. 24 I.T.R. 173 and R.rititat 13. Daftari v. Commissioner of Income Ta.x, H Bombay, 36 I.T.R. 18, referred to.\n\nMahaliram Santhatia v. Commissioner of Income Tax 33 I.T.R. 261, overruled.\n\nSUPllElfE COURT REPORTS tJ 966) ~Ul'P. S.tJ,11,\n\nCIVIL APPELLATE JuRJsDICTION: Civil Appeal Nos. 1108 to A 1110 of 1964.\n\nAppeals by special lea.ve from the judgment and order dated August I, 1962 of the Calcutta High Court in Income-tax Reference Nos. 20 and 21 of 1959.\n\nA. K. Sen, S. C. Mazumdar and J. Dalla Gupta. for the B\n\nappellants. ; R. M. /lazarnavis, R. Ganapathy Iyer and R. N. Sac!tthey, fo! the respondent.\n\nThe Judgment of the Court was delivered by Sikri, J. These appeals by special leave are directed against the judgment of the High Court of Calcutta in two cases referred to it by the Income Tax Appellate Tribunal, Calcutta Bench, under s. 66(1) of the Indian Income-tax Act !XI of 1922) hereinafter called the AcO. One of the references (income Tax Reference No. 20 of 1959) was made at the instance of Mis Fatehchand Murlidhar, and the other (income Tax Reference No. 21 of 1959)\n\nwas made at the instance of Shri Murlidhar Himatsingka. In the former reference the question referred was \"whether on the facts D and in the circumstances of the case, the income of Murlidhar Himatsingka for his share in the firm of Messrs. Basantlal Ghan- ; hyamdas for the assessment years 1952-53 and 1953-54 was rightly excluded from the income of the applicant firm\". In the latter reference the question referred was \"whether on the facts and circumstances of the case the income of Murlidhar Himatsingka for his share in the firm of Messrs. Basantlal Ghanshyam- E das for the assessment year 1955-56 was rightly included in his personal assessment for that year\".\n\nThe tacts and circumstances out of which these references were made arc common because the real question raised by these references is whether the income of Murlidhar Himatsingka, from the firm of M / s Basantlal Ghanshyamdas, in which he was a part- I' ner, should be included in his personal assessment <'r in the assessment of the firm of Fatehchand Murlidhar, to which Murlidhar Himatsingka had purported to assign the profits and losses from M / s Dasantlal Ghanshyamdas. It is sufficient to take the facts from the statement of the case in Income Tax Reference No. 21 of 1959. made at the instance of Murlidhar Himatsingka. Murlidhar Himatsingka was carrying on business in shellac, jute, G hessian etc. under the name and style of \"Fatehchand Murlidhar\" at 14/1, Clive Row and 71, Durlolla Street, Calcutta. He was also a partner in the registered firm, Messrs Basantlal Ghanshyamdas having -i2/8 share. On December 21, 1949, a deed of partnership was executed by the said Murlidhar Himatsingka and his two sons, Madanlal Himatsingka and Radhaballav Himatsingka and H a grandson named Mahabir Prasad Himatsingka. The deed recited that Murlidlrnr llimatsingka had bec<'>me too old and infirm\n\n• ...\n\n• •\n\n. I .\n\nMURLIDHAR V. C. I. T. (Sikri, J.) 455\n\nto look after the various businesses and that Madanlal and Radha Ballav were already practically managing the business and that they had signified their intention to become the partners of the said firm \"Fatehchand Murlidhar\" and had agreed to contribute capital, Rupees ten thousand, Rupees five thousand and Rupees five thousand respectively. The parties further agreed to become and be partners in the business mentioned in the deed. Clause S of this deed is important for our purpose and reads as follows: -\n\n\"The profits and losses for the share of the said Murlidhar Himatsingka as partner in the said partnership firm of Basantlal Ghanshyamdas shall belong to the present partnership and shall be divided and borne by the parties hereto in accordance with the shares as specified hereafter, but the capital with its assets and liabilities will belong exclusively to Murlidhar Himatsingka the party hereto of the First Part and the Parties hereto of the Second, Third and Fourth parts shall have no lien or claim upon the said share capital or assets of the party hereto of the first part in the business of the said Messrs Basantlal Ghanshyamdas\".\n\nClause IO provides:\n\n\"The Profits and losses (if any) of the partnership including the shares of the profits and losses of the said partnership firm of Basantlal Ghanshyamdas aforesaid shall be divided and borne by and between the parties in the following manner: -\n\nParty hereto of the First Part-Six annas (Murlidhar Himatsingka).\n\nParty hereto of the Second Part-Four annas (Madanlal Himatsingka).\n\nParty hereto of the Third Part-Three annas (Radhaballav Himatsingka).\n\nParty hereto of the Fourth Part-Three annas (Mahabirprasad Himatsingka).\n\nClause 11 provides that \"all partnership moneys and securities for money shall as and when received be paid into and deposited to the credit of the partnership account\". In clause 13 it is provided that \"the party hereto of the First Part shall have the sole control and direction of the partnership business and his opinion shall prevail if there be any dispute between the parties hereto\".\n\nClause 16 provides that \"the net profits of the partnership after payment of all outgoings interest on capital or loans and subject to the creation and maintenance of any reserve or other fund shall belong to the parties and the losses, if any, shall also be borne and paid by the parties in proportion to their shares as stated in Clause IO hereof''.\n\nFor the assessment year 1955-56 the Income Tax Officer included the income from the share in the registered firm of\n\nL/S5SCI-31\n\nSUPR'f'.JU: COURT REPORTS (1966) SUI\"l'.\n\n8.C.R.\n\nBasantlal Ghanshyamdas in the individual assessment of Murli A dhar Himatsingka, Murlidhar Himatsingka appealed to the Appel late Assistant Commissioner. Referring to s. 23(5)(a) of the Act, he held that as Murlidhar Himatsingka was a partner in the registered firm of Hasantlal Ghanshyamdas, his share had to be assessed in his hands. He further held that the agreement was merely an arrangement which came into force after the profits B were earned and not before they were earned. He held that this agreement being a subsequent disposition of profits, after they had been earned, had to be disregarded.\n\nMurlidhar Himatsingka appea'ed to the Income Tax Appel late Tribunal. The Appellate Tribunal heard this appeal together with the two appeals filed by Mis Fatehchand Murlidhar. The C Appellate Tribunal, agreeing with the views of the Appellate Assistant Commissioner, dismissed the appeal.\n\nThe High Court held that it was a case of diversion of in come by Murlidhar Hirnatsingka after it had accrued to him and it was not a diversion at the source by any overriding interest.\n\nIn the result, the High Court answered the questions in the affir D mative in both the references. Murlidhar Hirnatsingka and Mis Fatehchand Murlidhar having obtained special leave, the appeals are now before us.\n\nThe learned counsel for the appellants, Mr. A. K. Sen, con tends that a partner\"s share is property capable of being assigned, mortgaged, charged and dealt with as any other property, and where a partner sells his share to a stranger, though that stranger does not become a partner yet the vendor partner holds the property as trustee for the purchaser and consequently the income received by the partner is not his income but the income of the purchaser. He says that similarly if a partner assigns part of his share the same result fol'ows. He further contends that in this case, by the agreement dated December 21, 1949, Murlidhar Hirnatsingka had entered into a sub-partnership with his two sons and a grandson in respect of his share in the firm Basantlal Ghan shyamdas, and it is the sub-partnership that is entitled to the income from the firm Basantlal Ghanshyamdas and not Murli dhar Himatsingka who must be taken to be acting on behalf of the firni Fatehchand Murlidhar. Mr. Sen further urges that the lndian Income Tax Act taxes real income and not notional in come and the real income in this case belonged not to Murlidhar but to Mis Fatehchand Murlidhar.\n\nMr. Hazarnavis, on the other hand, contends that this agreement is a mere device for dividing income which had accrued to Murlidhar Himatsingka among his sons and grandson.\n\nIn the alternative he contends that the Indian Income Tax Act does not B contemplate the application of s. 23<5)(a) twice. He says that the firm of Basantlal Ghanshyamdas was a registered firm and the\n\n\\. -\n\nMURLIDBAR V. C. I. T. (Sikri, J.J\n\nA Income Tax Officer was bound, under s. 23(5)(a), to assess Murlidhar in respect of the income received from this firm; he could not carry this income to the assessment of another registered firm, namely, Fatehchand Murlidhar, and then apply s. 23(5)(a).\n\nThe first point that arises is whether the agreement dated B December 21, 1949, has succeeded in diverting the income from Murlidhar's share in Mis Basantlal Ghanshyamdas to Mis Fatehchand Murlidhar before it reached Murlidhar. What is the effect of the agreement? In our opinion the agreement dated December 21, 1949, constituted a sub-partnership in respect of Murlidhar's share in MI s Basantlal Ghanshyamdas. The High Court in this conc\n\nnection observed : -\n\n\"At best it could be called a sub-partnership entered into by Murlidhar with strangers in respect of his share of the partnership\".\n\nIn arriving at this conclusion we attach importance to the fact that losse~ were also to be shared and the right to receive profits and pay losses became an asset of the firm, Fatehchand Murlidhar.\n\nIn Commissioner of Income-tax, Bombay v. Sitaldas Tirathdas,(') Hidayatullah, J., speaking for the Court, laid down the following test for determining questions like the one posed above.\n\nAfter reviewing a number of authorities, he observed: -\n\n\"In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact.\n\nThere is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of one's own income, which has been received and is since applied. The first is a case in which the income never reaches the assessee, who even if he were to collect it, does so, not as part of his income but for and on behalf of the person to whom it is payable\".\n\n(') [1961] 3 S.C.R. 634, 642.\n\nSt:PRKJ, n; COt:RT REPORTS [ 1966) Sl'PP, S.C. R.\n\nThis test cearly shows that it is not every obligation to apply . income in a particular way that results in the diversion of income before it reaches the asse5fce. In its judgment in the above case (Sitaldas Tirathdas v. Commissioner of Income-tax.\n\nBombay(') the High Court of Bombay had observed: -\n\n\"It is not essential that there should be a charge, it is quite sufficient if there is a legally enforceable claim\".\n\nThese observations must be treated as unsound. The test laid down by this Court is quite clear, though like some other tests it is not easy of application in all cases.\n\nThe other cases cited before us, namely, K. A. Ramachar v.\n\nCommissioner of lncf'me-tax, Madra,(') and Provat Kumar Mitter\n\nv. Commissioner of Income-tax, West Bengal(') do not assist us in disposing of this case because the facts are not similar. Only two cases, one of the Bombay High Court and the other of the Calcutta High Court, have close resemblance to the facts of this case and we may now consider them. In Rati/al B. Daftri v. Commissioner of Income-tax. Bombay(') the assessee who was one of the sixteen partners in a registered partnership had contributed Rs. 25,000/- out of the capital of the partnership, Rs. 3,45,000/-.\n\nIn order to contribute this capital of Rs. 25,000/- he had entered into an agreement with four others on the same date on which the registered partnership deed was executed, which provided for contribution of diverse sums by the four others and it was further provided in this agreement that the five parties would share the profits and losses in proportion to their individual contribution.\n\nIt was also mentioned that the terms and conditions mentioned in the registered partnership were to be applicable and binding on them. The Bombay High Court held that the assessce was liable to be assessed only in respect of his share o[ the profits of the registered partnership. In coming to this conclusion, the High Court relied on two other decisions of the same Court, namely, Mori/a/ Manekchand v. Commissioner of Income-tar(') and Sitalda~ Tirathdas v. Commissioner of Income-tar(') As pointed out by the learned counsel for the respondent, Mr.\n\nHa1.arnavis, Sitaldas Tirathdas v. Commissioner of Income-tax(') was reversed by this Court in Commissioner of Income-tax v. Sita/dal' Tirathdas(') Hidayatullah, J .. at p. 374 of his judgment reversing the judgment of the Bombay High Court. had also referred to Mori/al Manekchand\n\nv. Commissioner of Income-tax(') but did not expressly dissent from this case. In our opinion the case of Rati/al B. Daftari v. Commissioner of Income-tax, Bombay(') was rightly decided, although the reasoning given by the learned Judges of the High Court has to some extent not been accepted by Hidayatullah. J., in Commissioner of Income-tax v. Sitaldas Tirathdas('). We say so far the follow-\n\n('I 33 I.T.R. 39J,31}4.\n\nI') 42 I.T.u. 26. (') 41 l.T.n. (;~4,\n\n(') 36 I.T.R. 18.\n\n1'1 311.T.R. 73;, <'J 41 l.T.I\\. 36;, [1961] 3 8.CR. 6~4.\n\n.. •\n\nG •\n\nMURLIDHAR v. C, I. T. (8ikri, J.) 459\n\ning reasons. Lindley on Partnership, 12th Edition, page 99, deals with sub-partnerships as follows: -\n\n\"A sub-partnership is, as it were, a partnership within a partnership; it presupposes the existence of a partnership to which it is itself subordinate. An agreement to share profits only constitutes a partnership between the parties to the agreement. If, therefore, several persons are partners and one of them agrees to share the profits derived by him with a stranger, this agreement does not make the stranger a partner in the original firm. The result of such an agreement is to constitute what is cal'ed a sub-partnership, that is to say, it makes the parties to it partners inter !Ye; but it in no way affects the other members of the principal firm\".\n\nHe further states: -\n\n\"Since the decision of the House of Lords in Cox v. Hickman (1860) 8 H. L. Cas. 268, a sub-partner could not before the Partnership Act, 1890, be held liable to the creditors of the principal firm by reason only of his participation in the profits thereof, and there is nothing in that Act to alter the law in this respect\".\n\nSub-partnerships have been recognised in India and registration accorded to them under the Indian Income Tax Act. (See Commissioner of Income-tax, Punjab v. Laxmi Trading Company)(') The question then arises is whether the interest of the subpartnership in the profits received from the main partnernship is of such a nature as diverts the income from the original partner to the sub-partnership. Suppose that A is carrying on a business as a sole proprietor and he takes another person B as a partner.\n\nThere is no doubt that the income derived by A after the date of the prtnership cannot be treated as his income; it must be treated as the income of the partnership consisting of A and B.\n\nWhat difference does it make in principle where A is not carrying on a business as a sole proprietor but as one of the partners in a firm? There is no doubt that there is this difference that the partners of the sub-partnership do not become partners of the original partnership. This is because the Law of Partnership does not permit a partner, unless there is an agreement to the contrary, to bring strangers into the firm as partners. But as far as the partner himself is concerned, after the deed of agreement of sub' partnership, he cannot treat the income as his own. Prior to the case of Cox v. Hickman('), sub-partners were even liable to the creditors of the original partnership. Be that as it may, and whether he is treated as an assignee within s. 29 of the Indian Partnership Act, as some cases do, a sub-partner has definite enforceable rights to claim a share in the profits accrued to or received by the partner.\n\n('I 24 I.T, R. 173. (') [1860] 8 H.L. Cas. 268.\n\nSUPRBllB OOURT REPORTS\n\n[1966] SUPP. 8.0.B,\n\nThe decision of this Court in Chararulas Haridas v. Commis- A sioner of Income-tax (') seems to support, at least by inference, this conclusion. In that case the facts were as follows. Charandas Haridas was the karta of a Hindu undivided family consisting of his wife, his three minor sons and himself. He was a partner in six managing agency firms and the share of the managing agency commission received by him as such partner was being assessed I as the income of the family. By a memorandum executed by the co-parceners of the family a partial portion of the income from the managing agency was brought about.\n\nThe memorandum stated: -\n\n\"We have decided that ........ .in respect of the commission which accrues from !st January, 1946 and received after that date each of us becomes absolute owner of his one-fifth share and therefore from that date ...... these commissions cease to be the joint property of our family\".\n\nThis Court held that the document effectively divided the income and the income could no longer be treated as that of the Hindu undivided family. This case shows that although the karta continued to be a partner in the managing agency firm, yet the character in which he received the income vis-a-vis the Hindu undivided family had changed and the Court gave effect to the change of his position. Previously he was acting as a karta on behalf of the Hindu undivided family in the managing agency firm; later he became a partner on behalf of the members of the family.\n\nIt seems to us that when a sub-partnership is entered into the partner changes his character vis-a-vis the sub-partners and the Income Tax authorities, although other partners in the original partnership are not affected by the changes that may have taken place.\n\nIn our view the Calcutta High Court decision relied on by the High Court and the learned counsel for the respondent (Mahaliram Santha/ia v. Commissioner of Income-tax(') was wrongly decided. The facts in that case were these. Mahaliram Santhalia was a partner in the firm MI s Benares Steel Rolling Miils. He was also a partner in another firm named MI s Radhak:issen Santhalia. By agreement dated April 3, 1944, between the partners of M / s Radhakissen Santhalia, it was provided that the partnership income from MI s Benares Steel Rolling Mills would belong not to Mahaliram Santhalia individually but to the firm of M / s Radhakissen Santhalia. The High Court of Calcutta held that the agreement amounted only to voluntary disposition by Mahaliram Santhalia of his income and there was no diversion of income to the firm MI s Radhakissen Santhalia before it became\n\n(1) [1960) 3 S.C.R. 296.\n\n(1) 88 I.T.R.1181.\n\n' •\n\nMURUDHAR V. c. i. T. (Sikri, J.; 461\n\nMahaliram Santhalia's income. The High Court observed at p. 272:-\n\n\"lf, as Mr. Mitra conceded, Mahaliram was rightly taken as a partner of the Benares Steel Rolling Mills in personal capacity and if a one-fourth share of the income was rightly allocated to him, any agreement between him and his three partners of the firm of Radhakissen Santhalia, under which the income was to be treated as the income of the whole firm, could only be an agreement by which Mahaliram Sanihalia was allowing what was really his income to be treated as the income of the firm or, in other words, as agreement by which he was applying or distributing an income which he had already himself earned and received. Such application or distribution would be a voluntary act of Mahaliram Santhalia in respect of a sum which it was conceded, had rightly been included in his own total, income and, therefore was his own income. If the moment the share of the income from the Benard; Steel Rolling Mills was allocated to Mahaliram Santhalia, it became his income and liable to be inclut.'!..1 in his own total income for the purpose of his personal assesment, an agreement by him with other persons regarding the rights to that income could only be a voluntary disposition of his income by him. No question of a diversion by superior title could possibly arise.\" With respect, we are unable to agree with most of this reasoning.\n\nIn our view, in the case of a sub-partnership the sub-partnership creates a superior title and diverts the income before it becomes the income of the partner. In other words, the partner in the main firm receives the income not only on his behalf but on behalf of the partners in the sub-partnership. The Calcutta High Court also seems to be, in our opinion, erroneously impressed by the argument that \"It is impossible to see how, after a proportionate share of the income had thus been included in the total income of a partner for the purposes of his personal assessment, it could then go anywhere else or could be further divided between such partners and other parties.\" We will deal with this aspect while dealing with the second point raised by the learned counsel for the revenue.\n\nMr. Hazarnavis, in this connection, drew our attention to the following passage in K. A. Ramachar v. Commissioner of lncometax. Madras('):-\n\n\"This, in our opinion. is neither in accordance with the law of partnership nor with the facts as we have found on the record. Under the law of partnership, it is the partner and the partner alone who is entitled to\n\n(') 42 I.T.R. 25, 29.\n\n462 8t; PRBl!Jo~ COURT REPO&TS\n\n[1966) HUPP. S.C.I<.\n\nthe profits. A stranger. even if he were an assignee, has and can have no direct claim to the profits. By the deeds in question, the assessee merely allowed a payment to his wife and daughters to constitute a valid discharge in favour of the firm; but what was paid was, in law, a portion of his profits. or, in other words, his income\".\n\nThis passage was also relied on by the High Court. In our opinion, these observations have to be read in the context of the facts found in that case. In that case it was neither urged nor found that a sub-partnership came into existence between the assessee who was a partner in a firm and his wife. married daughter and minor daughter. It was a pure case of assignment of profits (and\n\nnot losses) by the partner during the period of eight years. Fur- C !her the fact that a sub-partner can have no direct claim to the profits vis-a-vis the other partners of the firm and that it is the partner alone who is entitled to profits vis-a-vis the other partners does not show that the changed character of the partner should not be taken into consideration for income tax purposes.\n\nThis Court held in Commissioner of Income-tax, Gujarat v.\n\nAbdul Rahim(') that registration of the firm could not be refused on the D ground that a partner was a binamidar and that a benamidar is a mere trustee of the real owner and he has no beneficial interest in the profits of the business of the real owner. Under the law of pannership it is the benamidar who would be entitled to receive the profits from the other partners but for income tax purposes it does not mean that it is the benamidar who alone can be assessed in respect of the income received by him.\n\nIn conclusion we hold that the High Court was in error in holding that there was no question of an overriding ogligation in this case and that the income remained the income of Murlidhar Himatsingka in spite of the sub-partnership created by him under the agreement dated December 21, 1949.\n\nThe second contention raised by Mr.\n\nHazarnavis was not r debated in the High Court, but in our opinion, there is no substance in this contention. We have already mentioned that a benamidar can be a partner in a firm. Now if Mr. Hazarnavis's contention is right, under s. 25<5)(a) of the Act it is only he who could be assessed, but there is no warrant for this proposition. In Commissioner of Income-tax, West Bengal v.\n\nKa/u Babu La/ Chand(') this Court mentioned with approval Kaniram llazarimul/ G\n\nv. Commissioner of Income-tax(') where income from a partnership received by a ktJrta was held to be assessable in the hands of Hindu Undivided famlly.\n\nThis Court observed at p. 12 as follows: -\n\n\"If for the purpose of contribution of his share of H the capital in the firm the karta brought in monies out\n\n(') 5~ 1.1'.R Ml.\n\nI') 37 I.T.R. 123. ('l. 27 l.T.R. 294.\n\nMUP..LIDHAR V. C. I. T. (8ikr/, J,)\n\nof the till of the Hindu undivided family, then he must be regarded as having entered into the partnernship for the benefit of the Hindu undivided family and as between him and the other members of his family he would be accountable for all profits received by him as his share out of the partnership profits and such profits would be assesseable as income in the hands of the Hindu undivided family. Reference may be made to the cases of Kaniram Hazarimull v. Commissioner of Income-tax(') and Dhanwatav v. Commissioner of Income-tax(') in support of this view\".\n\nThe object of s. 23(5)(a) is not to assess the firm itself but to apportion the income among the various partners. After the income has been apportioned, the Income Tax Officer has to find whether it is the partner who is assessable or whether the income should be taken to be the real income of some other person. If it is the real income of another firm, it is that firm which is liable to be assessed under s. 23(5)(a) of the Act.\n\nThis view was taken by the Bombay High Court in Ratilal B. Daftri v. Commissioner of Income-tax('). The Bombay High Court observed at p. 24 as follows:-\n\n\"The principle asserted in that case is that even in the case of a partner in a registered firm, when the question arises as to his individual assessment, what is to be considered is not the income allocated to his share by employing the machinery of section 23(5)(a), but his real income, and that real income is what remains after deducting the amounts which may be said to have been diverted and never constituted his real income and such amounts will have to be excluded before his real income is reached\".\n\nIn conclusion we hold that there is nothing in s. 23(5)(a) that prevents the income from the firm Basantlal Ghanshyamdas being treated as the income of MI s Fatehchand Murlidhar and s. 23(5) ·(a) being applied again.\n\nIn the result we accept the appeals, set aside the judgment of the High Court and answer the questions in the negative. The appellants will be entitled to costs here and in the High Court. One hearing fee.\n\nAppeals allowed.\n\n(') 27 I.T.R. 294.\n\n(') 32 I.T.R. 682.\n\n(') 36 I.T.R. 18.", "total_entities": 27, "entities": [{"text": "1 •\n\nFATEHCHAND MURLIDHAR AND ANH", "label": "PETITIONER", "start_char": 20, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "FATEHCHAND MURLIDHAR AND ANR", "offset_not_found": false}}, {"text": "COMMISSIONEH OF INCOME-TAX, CALCUTTA", "label": "RESPONDENT", "start_char": 57, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, CALCUTTA", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 111, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "K.N. 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{"document_id": "1966_1_464_472_EN", "year": 1966, "text": ".JAICHAND LALL SETHIA\n\nSTATE OF WEST BENGAL & ORS.\n\nJuly 27, 1966\n\n[K. N. WANCHOO, M. HIDAYATULLAH, S. M. SllCRI, V. ilAMASWAMI\n\nAND J. M. SHELAT, JJ.]\n\nDefence of India Rules, 1962. r. 30-Detention under-Plea of mala fide wliether can be raised-Detenue whether entitled to insvect file containi141 order of detention-No mala fides alleged against Chief Minister who passed order-His affidavit not necessary.\n\nThe appellant was detained under r. 30 of the Defence of India C Rules, 1962. He challenged the ocdcr of detention by a petition under Art. 226 of the Constitution which was ctsmissed. In appeal before this Court by special leave it was urged on behalf of the appellant that: (i) the order of detention was mala fi_M; (ii) the High Court in not calling for the file of the case and permitting the appellant to inspect the matcr; al on the basis of which the order of detention was made. committed an error of law; (iii) the High Court should have asked for an affidavit from the Chief Minister of the State who D passed the order of detention.\n\nHELD: (i) Although in view of the decisions of this Court the appellant was entitled to raise the plea of mala Mes despite the Proclamation of Emergency and the President's Order which followed, the facts of the present case did not justify the plea. [468Hr Makhan Singh Tarsikka v. State of Punjab, [19641 4 S.C.R. 932 and Duraadas Shirali v. Union of India. (1966] 2 S.C.R. 573 referred B\n\n(ii) The satisfaction of the G<>vernment which justifies the order of detention under r. 30 is a subjective satisfaction. A court can not normally enquire whether grounds existed which would have ~- created that satisfaction on which alone the order could have been made, in the mind of a reasonable person. If therefore an authenti cated order of detention is on its face regular and in conformit, y with the language of r. 30, it is not ordinarily open to a court to enter into an investigation about the suffic:cncy of the material on r which the order of detention is based. f 469 C-D]\n\nKing Emperor v. S'iibnath Banerjee, 72 I.A. 241, Liversidae v.\n\nSir Jolin Anderson (19421 A.C. 206 and Greene v. Secretary of State for Ilome Affairs [19421 A.C. 284, referred to.\n\nEven though the order as drawn up recites that the State Government was satisfied the accuracy of that recital can be challenged in court to a lim:.ted extent. The accuracy can be challenged in two ways, either by proving that the State G<>vernment nC\"Ver ap- G plied its mind to the matter or that the authorities of the State Government acted mala fide, In a normal case the existence of such a recital in a duly authenticated order will. in the absence of any evidence as to its inaecuracy, be accepted by the court as establishing that the necessary condition was fulfilled. However, if the order of detention itself suffers from any lacuna it is open to a court to call for an affidavit from the Chief Minister or other Minister con- H cerned or to call for the relevant file from the State Government in order to satisfy itself as to the accuracy of the recital made In the order af detention. [470 F-Hl\n\nJAICHAND LAL 11. w. BENGAL (Ramaswami, J.) 465\n\nBiren Dutta etc. v. Chief Commissioner. of Trir:ura, [19641 8 S.C.R. 295 and Jagannath Misra v. State of Orissa. [1966]' 3 S.C.R. 134, referred to.\n\nIn the circumstances of the present case summi:>ning of th~ file by the High Court was not necessary, and the High Court nghtly rejected the appellant's prayer for inspection of the file. [471 E-F]\n\n(iii) As there was no allegation of mala fides or lack of bona fies with regard to the Chief Minister, it was not necessary for the High Court to call for his affidavit. The affidavit of the Deputy Secretary to the State Government was in the circumstances of the case, sufficient. r471G-472A]\n\n1966.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 110 of 1966.\n\nAppeal by special , reave from the judgment and order dated February 8, 1966 of the Calcutta High Court in Criminal Misc.\n\nCase No. 266 of 1965.\n\nN. C. Chatterjee, S. K. Dutta and D. N. Mukherjee, for the appellant.\n\nC. K. Daphtary, Attorney-General, B. Sen, P. K. Chatterjee and P. K. Bose, for the respondents.\n\nThe Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, against the judgment of the Calcutta High Court dated February 8, 1966 in Criminal Misc. Case No. 266 of 1965 refusing to grant a writ in the nature of habeas corpus ordering the release of the appellant, Jaichand Lal Sethia from detention under an order passed by the Government of West Bengal under r. 30 of the Defence of India Rules.\n\nAfter the conclusion of arguments in this case on May 3, 1966 we expressed the view that this appeal should be dismissed and the reasons will be sta, ted later. We now proceed to express those reasons.\n\nThe case of the appellant is that he was carrying on business of purchasing and selling goods like cloves, cinnamon, dye-stuff etc. in the city of Calcutta. In the month of January, 1963 the appellant had some trouble with the police of Burrabazar, P.S. in Calcutta, particularly with the Sub-Inspector Ka!yan Dutt, Officer-in-charge of that Police Station .. The appellant also said that he incurred the displeasure of the officers of the Customs De partment who had illegally seized the goods of the appellant and also prevented him from participating at the auction-sales of Customs Department. The appellant had made a complaint to the higher authorities of the Customs Department in this respect. On September 27, 1965 the order of detention of the appellant was made by the Government of West Bengal under r. 30 of the Defence of India Rules and in pursuance al' that order the appel1 !ant was detained in the Presidency jail at Calcutta. The order of\n\n466 StPHEME C..'OURT REPORTS i.llfi6j SUPP.\n\n~.C.R.\n\ndetention being No. 7~22 H.S. of the Government of West Bengal .l Home Department Special Section reads as follows:\n\n\"Whereas the Governor is satisfied that with a view to preventing Sri Ja ichand Lal Sethia, son of Sri Dipchand Sethia of 9 Decres Lane, Calcutta from acting in any manner prejudicia.! to the maintenance of Public Order, it is neces 8 sary to make an order directing that he be detained.\n\nNow, therefore, the Governor in exercise of the power conferred by Rule 30 of the Defence of India Rules, 1 %2, is pleased hereby to direct that the said person be detained and be kept in custody in the Presidency Jail during the period of such detention.\" The appellant obtained a rule from the Calcutta High Court asking the respondents to show cause why a writ in the nature of habeas corpus should not be granted directing the release of the appellant from detention. The case of the appellant was that the order of detention was made ma/a fide because the appellant had incurred the personal hostility of some officers in the police and Customs Departments. It was contended that the order of detention was procured ma/a fide upon false reports made vindictively under the Defence of India Rules by the officers in the police and Customs Departments. It was said that the order was made by the Chief Minister, West Bengal not because he was satisfied about the necessity of detaining him in the interest of public order but for ulterior considerations. In response to the notice an affidavit was filed on behalf of the State of West Bengal denying the allegations of the appellant. Affidavits were also filed by Kalyan Dutt and Debranjan Dutta controverting the allegations of the appellant so far as they were concerned. After hearing the parties, the Calcutta High Court hei!d that the order of detention was lawfully made by the Chief Minister of West Bengal and the allegation of ma/a fide had not been established by tbe appellant. The High Court accordingly dismissed the application of the appellant for grant of a writ of hab, a~ corpus.\n\nOn behalf of the appellant it was submitted by Mr.\n\nN. C.\n\nChatterji that the order of detention was made on the basis of reports submitted by the police and Customs authorities whose enmity had been incurred by the appellant. It was pointed out that on August 16, 1964 the appellant had sent a representation to the Chief Minister of West Bengal and other higher authorities saying that the police had been creating fictitious records for putting the appellant under detention under the Defence of India Rules. In July, 1965 three defamation cases were started against the appellant at the instance of the Customs Officers. In August and September, 1965 the appellant had sent representations against the police and Customs officers to the Chief Minister, West Bengal and other higher authorities. The contention of the appellant is\n\n.. ,,\n\n•.1\n\n-- ,.\n\n.JAif'HA~D LAL r. \\\\', HBNf}AL (Raill't~/, Cffifl.i, J.) 467\n\nthat the order of detention was made on September 27, 1965 by the Chief Minister, West Bengal not because of any material suggesting that the appellant was acting, in any manner, prejudicial to the maintenance of public order but because of the false reports made by the police and Customs officers. The next contention of the appellant is that there is no affidavit filed on behalf of the Chief Minister, West Bengal showing that he applied his mind to the case of the appellant and that he had the requisite satisfaction as required by the statutory rule. It was also submitted that the High Court did not permit the appellant to inspect the material on the basis of which the order of detention was made and the High Court committed an error of law in not permitting the appellant to go beyond the authenticated order of detention and to find out whether the sa.tisfaction of the Chief Minister, West Bengal was based upon sufficient material.\n\nBefore proceeding to deal with these points raised on behalf of the appellant it is necessary to state that in Makhan Singh Tarsikka v. The State of Punjab(') and in Durgadas Shirali v. The\n\nUnion of India and Anr.(') this Court had occasion to consider the legal effect of the proclamation of Emergency issued by the President on October 26, 1962 and two orders of the Presidentone dated November 3, 1962 and the other dated November 11, I 962 issued in exercise of the powers conferred by cl. (I) of Art. 359 of the Constitution. It was held by this Court that the scope of Art. 359(1) and the Presidential Order issued under it is wide enough to include all claims made by citizens in any Court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce fundamental rights under Arts. 14, 19, 21 and 22. It was pointed out that during the pendency of the Presidential Order the validity of the Ordinance or any rule or order made thereunder cannot be questioned on the ground that it contravene~ Arts. 14, 21 and 22. But this limitation cannot preclude a citizen from challenging the validity of the Ordinance or any rule or order made thereunder on any other ground. If the appellant seeks to cha1lenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Arts. 14, 21 and 22, the Presidential Order cannot come into operation. It is not also open to the appellant to challenge the Order on the ground of contravention of Art. 19, because as soon as a Proclamation of Emergency is issued by the President under Art. 358 the provisions of Art. 19 are automatically suspended.\n\nBut the appellant can challenge the validity of the order on a ground other than those covered by Art. 358, or the Presidential Order issued under Art. 359(1). Such a challenge is outside the\n\nI') (1964] 4 S.C.R. 932. (')\n\n(1966] 2 S.C.R. 573.\n\n(68\n\n81.JPREM& COURT REPORTS [l!m) 81.JPP f.C'.ll.\n\npurview of the Presidential Order. For instance, a citizen will not be deprived of the right to move an appropriate Court for a writ of habeas corpus on the ground that his detention has been ordered ma/a fide. Similarly, it will be open to tbe citizen to challenge the order of detention on the ground that any of the grounds given in the order of detention is irrelevant and there is no real\n\n11 and proximate connection between the ground given and the object which the legislature has in view. It may be stated in this context that a ma/a fide exercise of power does not necessarily imply any moral turpitude as a matter of law. It only means that the sta.tutory power is exercised for purposes foreign to those for which it is in Jaw intended. In other words, the power conferred by tbe statute has been utilised for some indirect purpose not 0 connected with the object of the statute or the mischief it seeks to remedy. !t is contended, in the first place, on behalf of the appellant that the order of detention is bad because the Chief Minister had taken into account the reports from the police and Customs offi. cers falsely made against the appellant. It is argued by Mr. N. C\n\nChatterji that the order of detention is bad because the statutory D power has been exercised ma/a fide that is to say, it has been utilised for some indirect purpose not connected with the object of the statute or the mischief which it seeks to remedy. The allegation of the appellant has been denied by Mr. Sen Gupta, Deputy Secretary to the West Bengal Government, Home Department in his affidavit made on behalf of the Government of West Bengal It is stated by Mr. Sen Gupta that in making the order of deten- • tion dated September 27, 1965 the Chief Minister, West Bengal did not take into consideration the criminal proceedings pending against the appellant before the Police and Customs authorities.\n\nMr. Sen Gupta further said that all papers available to State\n\nGovernment as to the activities of the appellant Jaichand Lal Sethia were placed before the Chief Minister who was personally satisfied that the appellant was engaged in illegal activities preju- 1 dicial to the maintenance of public order and as such an order of detention of the appellant was necessary. It was also stated by Mr.\n\nSen Gupta in his affidavit that the appellant was engaged not only as a dealer in spices but was engaged in procuring and selling goods il!egally and clandestinely.\n\nThe allegation of the appellant has also been denied by G Kalyan Dutt in his affidavit. Mr. Kalyan Dutt states that he never created fictitious records against the appel.lant and never prepar ed or forwarded any history-!iheet or any note to any authority recommending the detention of the appellant under the Defence of India Rules. There is also an affidavit by Mr. Debaranjan Dutta denying the allegations made by the appellant. On perusal of the H various affidavits filed in the case the High Court reached the conclusion that the allegation of ma/a fide made by the appellant\n\n0 ,\n\nI -J\n\nJAICHAND LAL v. w. BENGAI, (Ramaswami, J.) 4.69\n\nhad not been substantiated and the order of detention ma.de by the Government of West Bengal could not be held to be legally invalid on this account. We see no reason to take a view different from that of the High Court on this point. We are accordingly of the opinion that Mr. N. C. Chatterji on behalf of the appellant is unable to make good his submission on this aspect of the case.\n\nIt was next contended on behalf of the appellant that the High Court should have called upon the State Government to produce the ft.le concerning detention of the appellant in order to determine for itself whether the Chief Minister had sufficient material before him for satisfying himself as to the necessity for the detention of the appellant. We are unable to accept this argument as correct. The satisfaction of the Government which justifies the order of detention under r. 30 is a subjective satisfaction. A court cannot normally enquire whether grounds existed which would ha.ve created that satisfaction on which alone the order could have been made in the mind of a reasonable person. If therefore an authenticated order of detention is on its face regular and in conformity with the language of r. 30 it is not ordinarily' open to a court to enter into an investigation about the sufficiency of the material on which the order of detention is based. The legal position has been explained by the Judicial Committee in King Emperor v. Shibnath Banerjee(') as follows:\n\n\"It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where the recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a court as\n\nestblishing that the necessary condition was fulfil11ed. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima faciea case that the recital is not accurate\".\n\nReference may be made, in this connection, to Liversidge v. Sir John Anderson(') and Greene v. Secretary of State for Home Affairs ('). The question in those cases was whether the Home Secretary had reasonable cause to believe that certain persons were of hostile associations and that by reason thereof it was necessary to exercise control over them. It was held that the matter was one for the executive discretion of the Secretary of State, and that the Court was not entitled to investigate the grounds on which the Secretary of State came to believe the persons concerned to be of\n\n(') 72 LA. 241 at p. 261.\n\n(') [1942] A.C. 206.\n\n(') [1942] A.O. 284.\n\n!70 ~' PRF'.\\IE l'Ol'RT nr:f>u~ I'!'! ( J 966] 8UPP. 8.l'.R.\n\nhostile associations. or to believe that by reason of such associations it was necessary to exercise control over them.\n\nIn Liversiclge0s(') case Viscount Maugham observed as follow~:\n\n\"In my opinion. the well-known presumption omnia esse rite acta applies to this order. and, accordingly. assuming the order to be proved or admitted, it must be taken prtma facie, that is until the contrary is proved, to have been properly made and that the requisite as to the belief of the Secretary of State was complied with.\"\n\nIn Greene's('! case Vi-count Maughan again quoted with approval the following passage from the judgment of Goddard L.J. in the Court of Appeal :\n\n\"I am of opinion that where on the return an order or warrant which is valid on its face is produced it is for the prisoner to prove the facts necessary to controvert it, and in the present case this has not been done. I do not say that in no case is it necessary for the Secretary of State to file an affidavit. It must depend on the ground on which the return is controverted, but where all that the prisoner says in effect is 'I do not know why I am interned. I deny that I have done anything wrong', that does not require an answer because it in no way shows that the Secretary of State had not reasonable cause to believe. or did not believe. otherwise ...\n\nIt is manifest that an order of detention under r. 30 of the Defence of India Rules can only be passed if the State Govern ment is satisfied that the detention of a particular person is necessary on any ground referred to in that Rule. Even though the order as drawn up recites that the State Government was satisfied,\n\nthe accuracy of that recital can be challenged in court to a limited extent. The accuracy can be challenged in two ways either by ., proving that the State Government never applied its mind to the matter or that the authorities of the State Government acted ma/a fide. In a normal case the existence of such a recital in a duly authenticated order will. in the absence of any evidence as to ii! inaccuracy, be accepted by the court as establishing that the necessary condition was fulfilled. In other words. in a normal case the existence of such a recital in a duly authenticated order that the G State Government was satisfied will, in the absence of any evidence to the contrary, be accepted by the court as establishing that fhe State Government was so satisfied. If the order of detention itself suffers from any lacuna it is open to a court to call for an affidavit from the Chief Minister or other Minister concerned or to call for the relevant file from the State Government in order to H\n\n(') [1942) A.C. 201;, l'l I I!J.12) A.O. 281.\n\n- \\...\n\nG •\n\n1AJCHAND LAL v. w. BENGAL (Ramaswanii, l.) 471\n\nsatisfy itself as to the accuracy of the recital made in the order of detention.\n\nFor instance, in Biren Dutta etc. v. Chief Commissioner of Tripura,(') this Court made an order directing the Chief Secretary to the Tripura Administration to transmit to this Court the original files in respect of the detenus and also directed the Minister concerned or the Secretary or the Administrator to file an affi- Javit in this Court stating all the material facts indicating whether the decision arrived at was duly communicated to tlite detenus concerned. But the order for production of the file and for affi-· davit from the Minister or the Secretary concerned was made in that case because the appellant alleged that the order of review had not been reduced to writing under r. 30A(8) and the relevant conditions prescribed by the rule had not been complied with and that it had not been commnnicated to him. Reference was made by Mr. N. C. Chatterji to another case-Jagannath Misra v. The State of Orissa(')-in which this Court ordered the Home Minister to file an affidavit. In that case the order of detention was defective because the authenticated copy of the order mentioned six grounds with the disjunctive \"or\" mentioned in the affidavit of the Chief Secretary. Some of these grounds were followed by \"etc.\". In view of the ambiguity of the order this Court made a direction asking the State Government to produce the original order which was in the form of a document and al:so called for an affidavit from the Home Minister who was in-charge of matters of detention. In the present case, the material facts are different from those in the Jagannath Misra(') case, in the Biren Dutta(') case. It follows therefore that the High Court was justified in not making an order for discovery or production of the origiinal Jepartmental file containing the activities of the appellant by the Government of West Bengal.\n\nLastly it was contended for the appellant that the High Court should have asked the Chief Minister to file an affidavit and rejected the affidavit filed by the Deputy Secretary Mr. Sen Gupta as insufficient to controvert the allegations of the appellant. We do not think there is any substance in this point. There is no allegation made by the appellant that the Chief Minister himself was acting ma/a fide. The allegation of the appellant was that Mr.\n\nKalyn Dutt and the Customs Officers had acted mala fide against the appellant. The a1Jegation of the appellant on this point has been denied by Mr. Kalyan Dutt in his affidavit. As there is no allegation of ma/a {hies or lack of bona /ides with regard to the Chief Minister of West Bengal who is the authority for deciding as to the necessity for detention of the appel!lant it\n\n(') [196~] 8 S.Q, R. 296.\n\n(') [1966] 3 S.C.R. 134.\n\nJ,/SSSCJ\n\n8Ul'!!F.lllC COl:RT P.EPORT~\n\n(!966) SOPP. B.C.R.\n\nwas not necessary for the High Court to call for an affidavit from A the Chief Minister and the affidavit filed by Mr. Sen Gupta on behalf of the Government of West Bengal was rightly considered by the High Cou1t as sufficient in the circumstances of the case.\n\nFor these reasons we hold that there is no merit in this B\n\nappeal and that it should be dismissed. , -·\n\nAppeal dismissed.\n\n' '", "total_entities": 22, "entities": [{"text": "JAICHAND LALL SETHIA", "label": "PETITIONER", "start_char": 1, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "JAICHAND LALL SETHIA", "offset_not_found": false}}, {"text": "STATE OF WEST BENGAL & ORS", "label": "RESPONDENT", "start_char": 23, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "STATE OF WEST BENGAL & ORS", "offset_not_found": false}}, {"text": "K. N. WANCHOO", "label": "JUDGE", "start_char": 68, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "K.N. WANCHOO*", "offset_not_found": false}}, {"text": "M. HIDAYATULLAH", "label": "JUDGE", "start_char": 83, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "M. HIDAYATULLAH", "offset_not_found": false}}, {"text": "M. SHELAT, JJ.", "label": "JUDGE", "start_char": 136, "end_char": 150, "source": "metadata", "metadata": {"canonical_name": "J.M. SHELAT", "offset_not_found": false}}, {"text": "Defence of India Rules, 1962", "label": "STATUTE", "start_char": 153, "end_char": 181, "source": "regex", "metadata": {}}, {"text": "Defence of India C Rules, 1962", "label": "STATUTE", "start_char": 456, "end_char": 486, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 545, "end_char": 553, "source": "regex", "metadata": {"linked_statute_text": "the Defence of India C Rules, 1962", "statute": "the Defence of India C Rules, 1962"}}, {"text": "(1966] 2 S.C.R. 573", "label": "CASE_CITATION", "start_char": 1415, "end_char": 1434, "source": "regex", "metadata": {}}, {"text": "Art. 359", "label": "PROVISION", "start_char": 10287, "end_char": 10295, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 359(1)", "label": "PROVISION", "start_char": 10361, "end_char": 10372, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 14, 19, 21 and 22", "label": "PROVISION", "start_char": 10705, "end_char": 10728, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 14, 21 and 22", "label": "PROVISION", "start_char": 10922, "end_char": 10941, "source": "regex", "metadata": {"statute": null}}, {"text": "Arts. 14, 21 and 22", "label": "PROVISION", "start_char": 11237, "end_char": 11256, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 11403, "end_char": 11410, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 358", "label": "PROVISION", "start_char": 11492, "end_char": 11500, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 11519, "end_char": 11526, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 358", "label": "PROVISION", "start_char": 11655, "end_char": 11663, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 359(1)", "label": "PROVISION", "start_char": 11704, "end_char": 11715, "source": "regex", "metadata": {"statute": null}}, {"text": "(1964] 4 S.C.R. 932", "label": "CASE_CITATION", "start_char": 11754, "end_char": 11773, "source": "regex", "metadata": {}}, {"text": "(1966] 2 S.C.R. 573", "label": "CASE_CITATION", "start_char": 11780, "end_char": 11799, "source": "regex", "metadata": {}}, {"text": "[1966] 3 S.C.R. 134", "label": "CASE_CITATION", "start_char": 23362, "end_char": 23381, "source": "regex", "metadata": {}}]}
{"document_id": "1966_1_46_54_EN", "year": 1966, "text": "ADDL. COLLECTOR OF CUSTOMS, CALCU1TA & ANR.\n\nMIS. BEST & CO.\n\nMarch 25, 1966\n\nfK. SUBBA RAO, V. RAMASWAMI AND J. M. SHELAT, JJ.]\n\nLimitation Act (9 of 1908), s. 12(2) and (3)-Application for leave !<' appeal-Rules of High Court permitting filing without copies of 1udgment or order-Time taken for obtaining copies-If could be excluded in computing limitation.\n\nThe respondent's petition under Art. 226 challenging an orJer of the appellants (customs authorities) was ordered by the High Court.\n\nThe appellants immediately applied for cert:fied copies of the judg ment and order. Th<y filed an application for leave, to appeal to this Court against the order of the High Court, along with a certified copy of the judgment which alone was furnished to them by then; but the application was beyond the period of limitation even after excluding the time taken for obtaining the certified copy of the judgment. The certified copy of the order was furnished to the appellants thereafter, but it was not annexed to the application for leave to appeal. The High Court dismissed the application on the ground !hat it was barred by time.\n\nIn appeal to this Court. the appellants contended that they were entitled under s. 12(2) of the Limitation Act to exclude the time taken in obtaining the certified copy of the order, while the respondent sought to support t.he dismissal on the grounds that: (!) the application for leave to appeal was competent without annexing either the certified copy of the judgment or order under the Rules of the High Court, and therefore, it cannot be said that the time taken for\n\nobtaining the copy of the judgment or order was requisite, and hence. could not be excluded under s. 12(2) or (3), and (ii) the prescribed F'l'.>rm for an application for leave prohibited the annexing of a copy of the judgment or order.\n\nHELD: (i) Under s. 12(2) and (3) of the Limitation Act, the time for obtaining the crrtifif'd copif's of the judgent nnd the decree or the order must bo excluded while computing the peri<ld of limitation.\n\nThe Legislature allO\\\\.t'd lhe exclusion to enable a party who intends to file an appeal to examine the decree or the judgment before he launches a further proceeding. The provision does not depend upon whether the Civil Procedure Code or Rules of a Court permit a petitioner to file an application for leave to appeal with or without \" copy of the judment or order or decree, and where the Rules so permit. whether he has annexed such a copy to his application or not. f52 H-53 Bl\n\nSurty v. Chettyar, L.R. 55 I.A. 161, applied. Gangaram v. Beharilal A.LR. 1952 Bhopal 39 and Abdul Aziz v. Jai Ram. A.I.R. 1951 H.P. fn, overruled.\n\n(ii) The rule ond the Form prescribed do not lay down any mandatory direction that a copy either of the order or of the judgment shall not be annexed. f51 B-Cl\n\nA •\n\nB '\\-\n\nG • -\n\n\nCOLLECTOR OF CUSTOMS V. BEST & CO. (Shcfr•t, J.) 47\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 275 of 1966.\n\nAppeal by special leave from the order dated August 17, 1965 of the Calcutta High Court in an application for leave to appeal to this court in Appeal No. 254 bf 1963.\n\nWITH\n\nCivil Miscellaneous Petition No. 2195 of 1965 (Petition for Condonation of delay).\n\nB. R. L. Iyengar and B. R. G. K. Achar, for the appellant.\n\nA. K. Sen and D. N. Mukherjee, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nShelat, J. On March 31, 1959 the respondents obtained a licence to import certain machinery from West Germany.\n\nThe import licence contained particulars of the machinery to be imported and inter alia stated that its value would be \"C.I.F. value of Rs. 45,000\". One of the conditions upon which the licence was issued was that:\n\n\"the above application is accepted and import licence is granted having quantity and value as the limiting factor and is not valid for clearance if the actual value of any item exceeds the C.I.F. value indicated in the licence by more than five per cent.\"\n\nThe machinery arrived at the port of Calcutta sometime in July 1960 and was allowed to be cleared on the bill of entry submitted on behalf of the respondents. The bill of entry showed the C.I.F. value of the machinery at Rs. 44,843.61 nP. The cus- 'F toms authorities thereafter assessed the duty payable on the said machinery and the duty so assessed was paid by the respondents.\n\nOn May 6, 1961, in consequence of certain information received by the authorities a search was made of the business premises of the respondents and also of Stahlumon & Co .. Ltd., the agents of the exporters.\n\nAs a result of the search certain documents and papers were seized by the customs authorities. On June 19120, G 1961 a notice was served upon the respondents calling upon them to show cause why action should not be taken against them under s. 167(8) of the Sea Customs Act, 1878. The notice alleged that the respondents were guilty of illegal import of goods worth Rs. 6,730.74 nP, that being the excess value of the goods permitted to be imported under the said licence. The respondents in due course gave their explanation. Thereafter an amended show H cause notice dated September 21, 1961 was served upon the respondents charging them under s. 167(8) of the Sea Customs Act read with s. 3(2) of the Imports and Exports Control Act, 1947\n\n48 t; J'RF.MF COPRT RF, P0RT8 [1966) Sl'PP.\n\nS.C.R.\n\nfor illeally importing the said consignment. The respondents were given a personal hearing and thereafter the first petitioner passed an order dated March 17, 1962 directing confiscation of the said machinery an<l imposing a tine of Rs. 20.000 in lieu of confiscation and further impos; ng a personal penalty of Rs. 25.000.'-.\n\nAggrieved by this order the respondents filed a petition in the High Court under Art. 226 of the Constitution praying for mandamus directing the petitioners to rescind the order <lated March 17. 1962 and for certiorari quashing the said order.\n\nThe learned single Judge who heard the petition passed an order dated September 2, 1963 dismissing the petition holding that the said import was illegal. Thereupon the respondents tiled an appeal against the said order and the Appellate Bench of the High Court by its orders dated December 18, 1964 allowed the respondents' appeal directing the petitioners to forbear from giving effect to the said order of the first petitioner. The petitioners filed an application for a certificate under Art. 133 but the Appellate Bench of the High Court by its arder dated August 17, 1964 dismissed the said application on the ground that it was barred by limitation, though holding that\n\n(i) the valuation tests laid down in sub-cl. (a) and (b) of Art. 133( I) were satisfied. and\n\n(ii) that the order being one of reversal the petitioners were otherwise entitled to a certificate.\n\nThe present appeal is against the said order dated December 18, 1964 by which the High Court issued the writ of mandamus against the petitioners.\n\nAs aforesaid, the High Court delivered its judgment and passed the abovementioned order allowing the respondent's appeal on December 18, 1964.\n\nOn December 19, 1964 the petitioners applied for certified copies of the said judgment and the said order. The certified copy of the judgment was furnished to the petitioners on January 18, 1965.\n\nThe petitioners however waited for the certified copy of the said order which was yet not fumisl!ed to them.\n\nAs the certified copy of the said order was not finalised and was not ready the petitioners filed the said application for leave on May JO, 1965 annexing thereto the certified copy of the judgment only.\n\nOn July 17, 1965, a certified copy of the said order was furnished to the petitioners but they did not annex it to their application for leave as it was already filed. As stated earlier the High Court dismissed the application by its order dated August 17, 1965, on the ground that it was barred by limits ti on.\n\nThe High Court however observed that if the petitioners had annexed the certified copy of the said order furnished to them on July 17, 1965 they would have been entitled to eclude the time taken in obtaining it from the period of limitation under\n\nCOLLECTOR OF CUSTOMS i•. BEST & CO. (S/ielat. J.)\n\n4\\J\n\nA s. 12(2) of the Limitation Act. The result according to that view would be that:-\n\n(i) if the petitioners had waited till July 17, 1965 and filed\n\n~ their application annexing also the certified copy of the said order their application would have been within time as they would have -.\n\nB been entitled to exclude the time for obtaining it;\n\n(ii) if they had amended their application and annexed the certified copy of the order on receiving the same they would still have been entitled to exclude the aforesaid period and their application then would have been within time; and\n\n(iii) if they had withdrawn the application and filed a fresh application annexing thereto the certified copy of the said order such fresh application would have been within time as they would have been entitled to exclude the time taken in obtaining the certified copy of the order. According to the High Court the petitioners however were not entitled to exclude the time for obtaining the certified copy of the order as they had filed the said application without annexing thereto the copy of the said order and their application filed on May 10, 1965 was already time barred.\n\nAccording to the respondents, since under Art. 132 of the Limitation Act the application for leave had to be made within 60 days. the petitioners' application lodged on May IO, 1965 was clearly beyond 60 days even after the certified copy of the judgment was furnished to them on January 18, 1965.\n\nConsequently, the petitioners' application was time barred and was rightly rejected by the High Court.\n\nThe question for determination is whether the application for leave to appeal was barred by limitation and the petitioners were not entitled under s. 12(2) of the Limitation Act to exclude the time taken in obtaining the certified copy of the said order.\n\nSection 12(2) provides that in computing the period of limitation for an appeal or application for leave to appeal, the time requisite for obtaining a copy of the decree. sentence or order appealed from or sought to be revised shall be excluded. Similarly, under sub-section 3 where an application is made for leave to appeal, from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or an order is founded shall also be excluded. On a plain reading of these sub-sections, it is clear that the time for obtaining the certified copy of both the judgment and the decree or order as the case may be must be excluded while computing the period of limitation. The object of the exclusion is to enable the person desiring to appeal to consider the terms of the decree, judgment and order before he decides to launch a further proceeding in respect of it.\n\nTwo views were, however, canvassed before us on the construction of s. 12. One was that the right of exclusion of time is\n\nOU SUPREME (,'{Jt\"RT\n\nR.~; P<>RTS\n\n[1966) SUPP. B.C.R.\n\nqualified by the words \"Lime requisite for obtaining a copy of the decree, sentence or order\" in sub-section 2.\n\nTherefore, if an application for leave to appeal does not require a certified copy of the order in question to be annexed to the application, it is not possible to say that the time required for obtaining such a copy was requisite.\n\nIn such cases the time in obtaining the copy would not be requisite time and consequently the applicant would not be entitled to exclude the time taken in obtaining the certified copy of the order.\n\nCertain decisions of some of the High Courts have also taken the view that such an applicant would not be entitled to the benefit of the sub-section where a copy of the decree. judgment or order is not actually annexed to the application or the memorandum of appeal.\n\nThe other view is that sub-ss. 2 and 3 of s. 12 enact the rule of exclusion as a positive direction. The object of the sub-section being to afford a party opportunity to consider his position e'en where a certified copy of the judgment gives all the necessary infonnat!on enabling the party to decide to proceed further or not. he would nevertheless be entitled to exclude the time for obtaining the certified copy of the decree or order. It has been held in some decisions that even in cases where it is not neces, ary to prepare a formal order, if sllch an order is prepared, the party would be entitled to the benefit of exclusion of time taken in preparing and furnishing a copy thereof where it is applied for.\n\nCounsel for the respondents relied on the first view and E argued that though the petitioners applied for certified copies of both the judgment and the order. they were at best entitled to exclude the time for obtaining the copy of the judgment as they had annexed such a copy but not to the exclusion of time in obtaining the latter.\n\nHe contended that though the petitioners applied also for the copy of the said order it was not necessary for them to annex it to their application and in fact though it was F applied for and obtained it was not actually annexed. That being the position and the application for leave to appeal being competent without annexing either the certified copy of the judgment or of the order under the rules of the High Court of Calcutta it would not be possible to say that the time for obtaining the copy was time for something that was requisite and therefore that time could nol be excluded.\n\nHe also argued that the rules of the High G Court of Calcutta not only did not require such a party to annex a copy of the order but the prescribed form for such an application was mandatory in language and was a provision to the contrary. He therefore argued that there was a double reason for the petitioners not being entitled lo the benefit of the exclusion.\n\nWe shall deal with the second contention first as it is capable H :if an easy disposal Rule 4. in Chapter XXXlllA of the Rules of the High Court requires that an application for leave to appeal\n\n' •\n\n~ '\n\nI ,\n\n-'---\n\n' •\n\n.t '\n\n• ~\n\nli1\n\nCOLLECTO]{ Oi' CUSTO'!S t\\ llES'r & uo. (8lte1at, J.) 51\n\nshall be made by a notice of motion before the appellate court and shall be presented in the prescribed form, viz., Form No. 3, That form does not require that a certified copy of the judgment and/or decree or order need be annexed to such an application.\n\nThe rule and the form thus enable a party to file an application for a certificate without annexing either a copy of a judgment or a copy of an order.\n\nBut that does not mean that the rule and the form lay down any mandatory direction that a copy either of the order or of the judgment shall not be annexed. The rule and the form thus do not assist or further the argument urged by counsel for the respondents.\n\nIn regard to his first contention the learned counsel for the respondents urged that sub-ss. 2 and 3 of s. 12 would not apply where it is not necessary to annex a copy of the judgment or order.\n\nFor, in such a case it is not possible to say that the time taken in obtaining such a copy is time \"requisite\" within the meaning of that expression in sub-s. 2 of s. 12. Exclusion of the time required in obtaining a copy of the order therefore can only be allowed if and only if, such a copy is either required to be annexed or in any event is in fact annexed to the petition for leave to appeal. The question is: is the provision for exclusion of time in s. 12(2) dependent upon whether the rules of a court permit a petitioner to file an application for leave with or without a copy of the judgment or order or decree and also where the rules so permit whether he has annexed such a copy to his application? In Surty v.\n\nChettyar(') the Privy Council after considering various decisions of different High Courts held that (!) the preponderance of practice in India was that time for obtaining a copy of the judgment or decree or order should be excluded even though under the rules of the Court it was not necessary to obtain a copy of the judgment or decree to be filed with the memorandum of appeal, and (2) that on a grammatical construction of s. 12(2), the subsection plainly lays down a positive direction for exclusion of time without any reference to the Code of Civil Procedure or any other Act.\n\nIn that case the appellant had brought a suit on the original side of the High Court of Rangoon. That suit was dismissed on January 8, 1925. On April 28, he filed his memorandum of appeal before the appellate side of the High Court. A question arose whether the appeal was filed in time. The appellant tried to explain the delay and prayed for extension of time but the court refused to condone the delay and dismissed the appeal. The appellant then filed an application for review and it was then that he for the first time invoked sub-ss. 2 and 3 of s. 12 contending that the time taken in obtaining the copy of the order and of the judgment should be excluded. The Court upheld the contention of the respondents that such time could not be excluded as under the rules of that High Court the memorandum of appeal could\n\n02 Kt1l'REME OOt'RT aePORTS [ l 966jBUPP. S.~.R.\n\nbe filed without annexing thereto the copy of the judgment or the A order. This view was challenged in appeal before the Privy Council.\n\nThe rule on which the respondents in that case relied provided that a memorandum of appeal and an application for revision should be accompanied by certified copies of the judgment and decree unless they were dispensed with by the court. That rule however had a proviso which was in the terms following:- B ,'\n\n\"Provided that a memorandum of appeal against a decree or order of the High Court in the exercise of the original jurisdiction may be presented without a certified copy of the decree or formal order accompanying it\"\n\nRelying on this rule, it was contended that inasmuch as the proviso enables the appellant to tile his appeal without a copy of the order or judgment the appellant would not be entitled to exclusion of time as such time would not be \"requisite\" time within the meaning of s. 12(2) and the High Court was therefore right in dismissing the appeal as being beyond time.\n\nThe Privy Council disagreed with this contention holding thats. 12 contained a positive direction for exclusion of time and that such direction applied irrespective of whether the rules permitted the filing of an appeal or an application without annexing the copy of the order or judgment. The Privy Council emphasised that the positive direction contained in s. 12 was unconditional inasmuch as there was no reference therein to the Code of Civil Procedure and the section did not say why the time was to be excluded.\n\nAt page 170 of the report the Privy Council observed:\n\n\"If, indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents, an argument might be offered that no time could be requisite for obtaining something not requisite. But this is not so. The decree may be complicated, and it may be open to draw it up in two different ways, and the practitioner may well want to see its form before attacking it by his memorandum of appeal.\n\nAs to the judgment, no doubt when the case docs not come from up country, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it.\"\n\nThese observations were an answer to the contention that no time could be requisite for obtaining something not requisite. The legislature allowed the exclusion even though the rules of a court might f!Ot require a copy to be annexed to the memorandum of\n\n.-,.\n\nCOLLECTOR OF OUSTOM8 v. BEST & CO. (8helat, J.) 53\n\nappeal for a party who intends to file an appeal may desire to examine the decree or the judgment before he launches a further proceeding. Therefore, the exclusion was allowed irrespective of the rules of a court which permit a party to file an appeal without annexing a certified copy of the judgment or decree or order.\n\nIn Imperial Bucket Co. v. Smt. Bhagwati Basak(') there are however observations to the effect that an appellant will have the benefit of s. 12 in a case where be has annexed to the memorandum of appeal a certified copy of the judgment appealed from even though by the statute under which the appeal is filed, no certified copy of the order appealed from is required. This decision does not necessarily mean that where a copy is applied for and obtained but not annexed the time in obtaining it was for a thing not requisite.\n\nAs the Privy Council observed, a party might like to examine the judgment or the decree or the order before be challenged it in a higher forum.\n\nThough the judgment states that such time would be excluded where the copy is annexed, it does not lay down that there can be no exclusion of time D l where it is not annexed. But in Gangaram v. Beharilal(') a view has been taken that sub-ss. 2 and 3 of s. 12 would only be attracted when a copy of the judgment or decree or order appealed from accompanies the application for review.\n\nThis view is not in consonance with and in fact is contrary to the interpretation of s. 12 by the Privy Council in Surty's Case(') and is therefore unwarranted. The same must also be said of Abdul Aziz v. Jai Ram(').\n\nAs observed by the Privy Council in Surty's Case(\") the view of the High Courts of Bombay, Calcutta and Allahabad as expressed in Haji Hassum v.\n\nNoor Mohammad('), Ka/ipada v. Shakhar(''), and Waji-A/i Shah v. Nawal Kishore(') was that an appellant was eqtitled to exclusion of time in obtaining a copy of a judgment and decree even though the rules permit him to file the appeal without annexing such a copy.\n\nThe view contended for on behalf of the respondents is thus not only contrary to the decision of the Privy Council but if accepted would lead to a somewhat surprising result, viz., that if the petitioners had waited till the copy of the order was furnished to them, their application would have been in time or if they had withdrawn their application and filed a fresh one or amended their application and annexed the copy of the order such a fresh application, or such amended application, which in its unamended form was in their view time barred, would have been well within the period of limitation. In our view such a result is not to be contemplated.\n\nAs the Privy Council has laid down the provisions of s. 12(2) and (3) are a positive\n\n(1) A.LR. 1954 Cal. 520. (') M I.A. lfil.\n\n(G) I.! .. R. Born, 64!l.\n\n. -- ------------\n\n(7) T.L.R. 17 All. 21!-l.\n\nI') A.LR. 1952 Bhopal ~9.\n\n('I A.l.R. 1951 H P. 67.\n\n(6 ) 24 Cal. 235.\n\n54 ~FPRF.MB C'OlJRT RF.PORT~\n\n(1966) Sl'PP. 8.C.R.\n\ndirection excluding the time taken in obtaining a copy of the A judgment and decree or order as the case may be and those provisions ifre irrespective of the Code of Civil Procedure or the rules made by a court under s. 122 of the Code. Such rules if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order confer a privilege on a would be appellant but do not govern the positive direction contained in s. 12. The High Court in this view, therefore, was not right in dismissing the petitioners' application for leave to appeal on the ground that it was barred by limitation.\n\nIn the result, we allow the appeal and set aside the High Court's order of dismissal and remand the case directing the High Court to decide that application in the light of this judgment and consider whether the petitioners were entitled to leave under Art. 133 of the Constitution. As we are allowing the appeal, n0 order need be passed on the petition for condonation of delay.\n\nThe Special Leave Petition l 110 of 1965 is allowed to be withdrawn. There wilt be no order as to costs.\n\nAppeal allowed.", "total_entities": 57, "entities": [{"text": "ADDL. COLLECTOR OF CUSTOMS, CALCU1TA & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "ADDL. COLLECTOR OF CUSTOMS, CALCU1TA & ANR", "offset_not_found": false}}, {"text": "MIS. 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"end_char": 16955, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 16959, "end_char": 16964, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(2)", "label": "PROVISION", "start_char": 18215, "end_char": 18223, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 18671, "end_char": 18676, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 18741, "end_char": 18768, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 12", "label": "PROVISION", "start_char": 20408, "end_char": 20413, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 2 and 3", "label": "PROVISION", "start_char": 21181, "end_char": 21192, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12", "label": "PROVISION", "start_char": 21196, "end_char": 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{"document_id": "1966_1_473_476_EN", "year": 1966, "text": "' \\->\n\nSTATE OF MADHYA PRADESH\n\nAZAD BHARAT FINANCE CO. & ANR.\n\nJuly 28, 1966\n\n[K. SUBBA RAO, C, J. ANDS. M. SIKRI, J.J\n\nOpium Act (10 of 1878) as modified by the Opium Madhya Bharat Amendment Act 1955-Use of 'shalt' ins. 11 of the Madhya Bhar•P Act-Truck found carrying opium-Confiscation of truck whether obligatory under section.\n\nH took a truck on hire from the respondent company. The truck waa found to contain contraband opium and H was tried for offences under ss. 9A and 9B of the Opium Act (10 of 1878) as modified by the Opium (Madhya Bharat Amendment) Act 1955. The company made an application for the release of the truck but the magistrate while\n\n•uitting H on the ground that he had no knowledge that the truck was carrying opium, confiscated the truck under s. 11 cJf the Madhya Bharat Act. He took the view that the use of the word 'shall' in that\n\nection gave him no option but to confiscate the truck. The Sessions Judge took the same view but the High Court held that the word\n\n'hall' in the context of the section was not mandatory and in the circwmtances of the case the truck should not have been confiscated.\n\nThe State appealed to this Court by special leave.\n\nHELD: The word 'shall' is not always mandatory; it depend• npon the context in which the word occurs and the1 other circumstance•. r475Hl\n\nThree considerations are relevant in construing s. 11.\n\nFirst it would be unjust to confiscate the truck of a person if he has no k1'owledge whatsoever that the truck was being used for transporting the opium. Secondly it i$ a penal' statute and it should if possible b~ construed in such a way that a person 1vh01 has not committed or •betted any offence should not be visited with a penalty. Thirdly, if confiscation was obligatory under the section, the section may have to be struck down as .imposing an unreasonable restrictions under Art. 19 of the Constitution. f476 A-Dl\n\nSection 11 of the Madhya Bharat Act is not therefore to be construed as obligatory and it is for the court to consider in each case whether the articles in whch the contraband opium is found or is being transported should be confiscated or not having regard to all the circumstances of the case. [476 D-El\n\nTirath Singh v. Bachittar Singh, f19551 2 S.C.R. 457, referred to.\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 97 of 1964.\n\nAppeal by special leave from the judgment and order dated January 29, 1964 of the Madhya Pradesh High Court (Gwalior Bench) in Criminal Revision No. 5 of 1963.\n\nI. N. Shroff, for the appellant.\n\nR. L. Anand and S. N. Anand, for the respondents.\n\n(1966] SUPP, S,{.R,\n\nThe Judgment of the Court was delivered by\n\nSikri, J. This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court (Gwalior Bench) in a Cr; mina' Revision filed by MI s. Azad Bharat Finance\n\nCompany, one of the respondents in this appeal.\n\nThe revision arose out of the following facts. On May 3, 1961. truck No.\n\nB M.P.E. 1548, while it was parked at the bus-station. Guna. was searched by the Excise Sub-Inspector and he found contraband opium weighing about three seers in it.\n\nFive persons were challancd for the alleged illegal possession of contraband opium i.nd for its transport. under \"' 9A and 9B of the Opium Act (I of 1878) as modified by the Opium (Madhya Bharat Amendment) Act, 1955. hereinafter referred to as the Madhya ilharat C Act. Harbhajan Singh. one of the accused, is alleged to have absconded. and. therefore. he was tried separately later on. The Additional District Magistrate, Guna. convicted three persons and acquitted one person. Regarding the truck, he ordered th; it the final orders regarding the disposal of the truck would be passed later, on the conclusion of the trial of Harbhajan Singh. It may be mentioned that Harbhajan Singh had taken this truck under a D hire-purchase agreement from MI s. Azad Bharat Finance Co. and he was not present in or near the truck when the contraband opium was taken possession of by the Excise Officer.\n\nOn May 28, 1962. M /s. Azad Bharat Finance Co. applied in the Court of Shri M. C. Bohre. in which the trial of Harbhajan Singh was going on. for the release of the truck. On September 7, E 1962, Harbhajan Singh was acquitted by the Magistrate but he ordered that the truck be confiscated to the State. The Magistrnte was of the opinion that s. 11 of the '.vladhya Bharat Act showed clearly that the truck in which the opium was carried had to be forfeited in all circumstances. He observed:\n\n\"By the use of the word \"shall\" this Court was compelled that the truck be seized. may be there was the hand of the owner in it or not and neither there is any provision that the truck owner had the knowledge or not of the opium being carried.\"\n\nBoth Harbhajan Singh and Mis. Azad Bharat Finance Co. filed revisions in the Court of the Sessions Judge. The Sessions Judge also held that the word \"shall\" in s. 11 (d) was mandatory and not directory. He observed:\n\n\"Though it is correct that the truck was not used for carrying opium with the knowledge or connivance of the owner but section 11 (d) as applicable in this state does not give discretion to the Court in not ordering the confiscation of the conveyance used for carrying contraband opium.\"\n\n' .•.\n\n' \\,\n\nr '\n\n,,:\n\nM. P. STATE V. BHARAT FINANCE CO. (Sikri, J.) 475\n\nM/s. Azad Bharat Finance Co. filed a revision in the High Court. The High Court held as follows:\n\n\"The word \"shall\" occurring in Sec. 11 of the M.P.\n\nOpium Act means \"may\" and that it confers discretion on the court to confiscate the conveyance provided it belongs to the offender. But where it is not so, and, the owner of the truck has neither authorised the offender to transport opium, nor is there any reason to believe that the owner knew that his vehicle was likely to be used for transporting contraband opium, the conveyance should not be confiscated because confiscation in such circumstances would be tantamount to punishing one, who has not committed any offence under the Opium Act.\"\n\nThe learned counsel for the appellant, Mr. Shroff, contends that the Opium (Madhya Bharat Amendment) Act, 1955 (15 of\n\n1955) which amended the Opium Act, 1878, deliberately employed a different phraseology with the intention of making it obligatory on a Court to confiscate a vehicle in which contraband opium had been transported. He points out that in the Opium Act, 1878, in s. 11, the relevant words are as follows:\n\n\"S. l 1 Confiscation of opium.-In any case in which an offence under section 9 has been committed,-\n\nThe vessels, packages and coverings in which any opium liable to confiscation under this section is found. and the other contents (if any) of the vessel or package in which such opium may be concealed, and the animals and .conveyances used in carrying it, shall likewise be liable to confiscation.\" He stresses the words \"liable to confiscation\" which according to him and certain authorities clearly give a discretion to the Court whether to con!iscate the vehicle or not. In the Madhya Bharat Amendment Act the section providing for confiscation is as follows:\n\n\"S. 11. In any case in which an offence under Sections 9, 9A, 9B, 9C, 9D, 9E, 9F and 9G has been committed, the property detailed herein below shall be confiscated: -\n\n(d) the receptacles, packages and coverings in which any opium liable to confiscation under this Section is found, and the other contents (if any) of the receptacle or package in which such opium may be concealed, and the animals, carts, vessels, rafts and conveyances used in carrying it.\" H Jn our opinion, the High Court was correct in reading s. 11 of the Madhya Bharat Act as permissive and not obligatory. It is well-settled that the use of the word \"shall\" does not always\n\n476 SUPRF.Mll COURT RKPOR'!'8 [1966] SUPP. e.c.n.\n\nmean that the enactment is obligatory or mandatory; it depends upon the context in which U1e word \"shall\" occurs and the other circumstances. Three considerations are relevant in construing s 11. First, it is not denied by Mr. Shroff that it would be unjust to confiscate the truck of a person if he has no knowledge whatsoever that the truck was being used for transporting opium. Suppose a perron steals a ttuck and then uses it for transporting contraband opium. According to Mr. Shroff, the truck would have to be Qonliscated. It is well recognised that if a statute leads to absurdity. hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words. and even the structure of the sentence. (Vide Timth Singh v. Bachittar Singh)(').\n\nSecondly. it is a penal statute and it should, if possible, be construed in such a way that a person who has not commilled or abetted any offence should not be visited with a penally.\n\nThirdly. if the meaning suggested by Mr. Shroff is given, s. 11 (d) of the Madhya Bharat Act may have to be struck down as imposing unreasonable restrictions under Art. 19 of the Constitution. Bearing all these considerations in mind. we consider that s. 11 of the Madhya Bharat Act is not obligatory and it is for the Court to consider in each case whether the vehicle in which the contraband opium is found or is being transported should be confiscated or not, having regard to all the circumstances of the case.\n\nMr. Shroff then contends that if the matter is discretionary, the High Court should not have interfered in the discretion exercised by the learned Sessions Judge. But apart from the question that this point was not raised before the High Court, both the Magistrate and the Sc, sions Judge ordered confiscation of the truck on the ground that they had no option in the mailer.\n\nMr. Shroff then raises the point that Mis. Azad Bharat Finance Co. was a third party in the case and was not entitled toapply for setting asicle the order of confiscation or request for the return of the truck. This point was not raised before the High Court and. therefore, cannot be allowed to be rai, cd at this stage.\n\nIn the result the appeal fails and is dismissed.\n\nAppeal dismissed.\n\n(') [19M] 2 8.C.R 457 at 464.\n\nA. . '\n\nG •", "total_entities": 26, "entities": [{"text": "STATE OF MADHYA PRADESH", "label": "PETITIONER", "start_char": 7, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH", "offset_not_found": false}}, {"text": "AZAD BHARAT FINANCE CO. & ANR", "label": "RESPONDENT", "start_char": 32, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "AZAD BHARAT FINANCE CO. & ANR", "offset_not_found": false}}, {"text": "K. SUBBA RAO", "label": "JUDGE", "start_char": 80, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "K. SUBBA RAO*", "offset_not_found": false}}, {"text": "ANDS. M. 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{"document_id": "1966_1_477_484_EN", "year": 1966, "text": "47i\n\nPAMPAPAIBY\n\nSTATE OF MYSORE\n\nJuly 28, 1966\n\nIM. HmAYATULLAH, V. RAMASWAMI AND J. M. SttELAT, JJ.]\n\nCode of Criminal Procedure (Act 5 of 1898), s. 561A:-Appea! . to High Court against conviction-Accused released on bat! by High Court-If bail can be cancelled by High Court.\n\nThe appelkints were released on bail by the High C.ourt under s. 426 Cr. P.C., pending disposal of their appeal in the High .Co~.\n\nOn an application by the State that the appellants .were misusing their liberty and committing acts of violence, the bail was cancelled by the High Court in the exercise of its inherent powers. under s. 561-A, Cr. P. Code.\n\nOn the question whether the High Court had such power,\n\nHELD: The inherent power of the High Court under s. 561 A, Cr. P.C., can be exercised either for giving effect to any order under the Criminal Procedure Code or to prevent abuse of the process of \" court or otherwise to secure the ends of justice; but such power cannot be invoked in respect of any matter covered by a specific provision or inconsistent with any specific provision of the Crimip.al Pro~ cedure Code. Under ss. 497 and 498, Cr. P.C., the Legislature has made express provision for the cancellation of bail in certain cases, but there is no express provision when an appellant is released on bail under s. 426 Cr. P.C. The omission must be due to inadvertence and cannot be regarded as deliberate, otherwise the subsequent conduct of the appellant, however reprehensible it may be, will not justify the High C'-Ourt in cancelling the order of bail. Since the allegations aga'.nst the appellant prima facie indicate abuse of the process of the Court, s. 561 A is attracted to the case and the High Court was entitled to cancel the bail. f481 F-H; 482 D, Fl\n\nLala Jairam Das v. King Emperor, L.R. 72 I.A. 120, explained.\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 121 and 122 of 1966.\n\nAppeals by special leave from the judgment and order dated March 14. 1966 of the Mysore High Court in Crimin a 1 Revision Petitions Nos. 120 and 123 of 1966 respectively.\n\nM. K. Ramamurthi, R. K. Garg and S. C. Agwwala. for the appellants (in both the appeals).\n\nR. Gopa/akrishnan and B. R. G. K. Achar, for the respondents (in both the appeals).\n\nThe Judgment of the Court was delivered by\n\nH Ramaswami, J. The appellants- Pampapathy and Shekarappa were tried in the Court of Sessions at Chitradurga for offences under ss. 147, 148, 307, 323, 302 read with s. 149 and s. 325 read\n\n478 St:PRF!dE COURT REPORTS [1966] BUPP. s.c.R.\n\nwith s. 149 of the Indian Penal Code and convicted of all the A offences other than under s. 307 and s. 302 read with s. 149, Indian Penal Code.\n\nThe case of the proseqution was that the appellants. along with others, some of whom were dismissed workers of Devangiri Cotton Mills and Shri Ganeshar Textiles Mills and some of whom were office bearers and members of the Devangiri Cotton Mills Employees' Association and Shri Ganeshar Textiles Mills Workers Union, conspired with the common object of committing murder and other offences with a view to strengthen their Associations\n\nand to weaken the rival Unions which had the sympathy of the Mill Managements. It was alleged that they intended to create fear in the mind of the Management of the Mills in order to gain Cl their object of getting more bonus and get the dismissed workers re-instated. It was stated that they formed themselves into an unlawful assembly, armed themselves with deadly weapons. and attacked the deceased Heggappa and other loyal workers on the night of March 19, 1964 causing the death of Heggappa and injuries to 4 persons. The Sessions Judge, by his judgment dated December 7, 1964 convicted both the appellants for offences under ss. 147, 148, 323, 324 and 325 read with s. 149, Indian Penal Code.\n\nThe appellants preferred appeals to the Mysore High Court and on admission of the appeals they were directed to be released on bail. On March 7, 1966, the State made two applications under ss. 498(2) and 561A. Criminal Procedure Code for cancellation of the bail granted to the two appellants. In support of the two petitions an affidavit was filed by the Deputy Superintendent of Police, Devangiri Division-Sri K. Srinivasa Alwa, stating that the two appellants were misusing their liberty ever since they were enlarged on bail by doing acts of violence, creating trouble by instigating the labour unions of Devangiri Cotton Mills and Shankara Textile Mills to paralyse the smooth working of the Mills. It was alleged that they had constituted themselves as ring leaders of the Employees' Association and were engaged in taking part in unlawful assemblies at different times and committed offences against the peaceful workers of the Mill. The appellants filed a counteraffidavit denying that they were acting in a manner likely to cause breach of peace or endanger the lives of the workers. On March 14, 1966 the Mysore High Court allowed the applications of the State and ordered that the bail granted to the appellants should be cancelled and they should be re-arrested and committed to jailcustody.\n\nThese appeals are brought, by special leave, from the order of the Mysore High Court dated March 14, 1966 in Criminal Petitions Nos. 120 and 123 o[ 1966.\n\nThe question of law arising for determination in these appeals B is whether, in the case of a person convicted of a bailable offence 6 where bail has been granted to him under s. 426 of the Criminal\n\n- /\n\nI ,,\n\n\"\\ \" \\ 1 \" /\n\n'\"' I ·•\n\n\" \"'\n\nPAMPAPA1RY v.\n\nSTATE (Ramaswami, J.) 479\n\nProcedure Code it can be cancelled in a proper case by the High Court in exercis~ of its inherent power under s. 561A of the Criminal Procedure Code?\n\nIt is necessary at the outset to reproduce the relevant provisions of the Criminal Procedure Code. Section 426 relates to the suspension of the sentence or order of the trial court pending appeal and the release of the appellant on bail. The section reads as follows:\n\n\"426. (I) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond.\n\n(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto.\n\n(2-A) When any person other than a person convicted of a non-bailable offence is sentenced to imprisonment by a Court, rnd an appeal lies from that sentence, the Court may, if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the Appellate Court under sub-section (!) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.\n\n(2-B) Where a High Court is satisfied that convicted person has been granted special leave to appeal to the Supreme Court against any sentence which the High Court has imposed or maintained, the High Court may, if it so thinks fit, order that pending the appeal the sentence or order appealed against be suspended, and also, if such person is in confinement, that he be released on bail. •\n\n(3) When the appellant is ultimately sentenced to imprisonment, or imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.\"\n\nSection 496 deals with persons accused of bailable offences.\n\nIt provides that \"when a person charged with the commission of a bailable offence is arrested or detained without warr:mt by an officer in charge of a police station or is brought before a court and is prepared at any time, while in the custody of such officer or at any stage of the proceedings before such court. to give bail,\n\n480 SUPRBNt: COURT REPC>P.T!l [J966j RUPP. s.c.a.\n\nsuch person shall be released on bail\". Section 497 deals with the question of granting bail in the case of non-bailable offences.\n\nIt reads as follows :\n\n\"497. (I) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail. but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life :\n\nProvided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.\n\n(2) If it appears to such officer or Court at any stage of the investigation, inquiry, or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.\n\n(3)\n\n<3-Al\n\n(4)\n\n(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.\"\n\nSection 498(1) confers on the High Court or the Court of Session power to direct admission to bail or reduction of bail in all cases where bail is admissible under ss. 496 and 497 whether in such cases there be an appeal against conviction or not. Sub-section (2) of s. 498 empowers the High Court or the Court of Session to cause any person who has been admitted to bail under sub-s. (I) to be arrested and committed to custody. Section 561 A was added to the Code in 1923 and it reads as follows:\n\n\"561-A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to\n\nany order under this Code. or to prevent abuse of the B process of any Court or otherwise to secure the ends of justice.\"\n\n' _.,\n\n. -\n\n- r\n\n~· ..\n\n1 ,.\n\nPAMPAPAi'f'Y V, STATE (Ramaswami, J ,) !81\n\nIt was argued by Mr. Ramamurthy on behalf of the appel !ants that after the High Court had once made an order suspend\n\ning the sentence and granting bail to the appellants under s. 426.\n\nCriminal Procedure Code it had no power to cancel that order subsequently and recommit the appellants to jail-custody. It was submitted that there was no express power granted to the appellate court to cancel its order regarding the suspension of sentence pending the appeal and the order of release of the appellants on bail. It was pointed out that under s. 497(5) the legislature has specifically conferred power on specified courts to cancel the bail granted to a person accused of a non-bailable offence.\n\nIt was also pointed out by learned Counsel that under s. 498(2) the legislature has conferred power on the High Court and the Court of Session to cancel the bail granted to an accused person under s, 498(1) and ordering him to be arrested and committed to jail custody, The argument put forward on behalf of the appellants i• that if the legislature intended to confer such a power on the appellate court under s. 426 it would have been very easy for it lo add an appropriate sub-section and make an express provision for such a power. The omission to make such an express provision is, according to Mr. Ramamurthy, not a result of inadvert ence but it is deliberate. and if that is so it will not be permissible to take recourse to the provisions of s. 561A to clothe the appellate court with power to cancel the bail in a case falling under s. 426, Criminal Procedure Code. It was argued by Mr. Ramamurthy that even if the appellants committed acts of violence during the period they were enlarged on bail and repeakd the very offence for which they had been convicted the bail bond could not be cancelled but the further conduct of the accused may justify another prosecution under the Tndian Penal Code and that it would not justify the re-arrest of the appellants, In our opinion, there is no justification for the argument put forward on behalf of the appellants. It is true that in s. 498 and ss, 497 (5) and 498 the legislature has made express provision for the cancellation of a bail bond in the case of accused persons released on bail during the course of the trial but no such express provision has been made by the legislature in the case of a convicted person whose sentence has been suspended under s .. 426 and there has been an order of release of the appellant on bail.\n\nThere is obviously a lacuna but the omission of the Jeaislature to make a specific provision in that behalf is clearly due t~ oversight or inadvertence and cannot be regarded as deliberate. If the contention of the appellants is sound it will lead to fantastic results.\n\nThe argument is that once an order of suspension of sentence is made under s. 426 by the appellate court and the appellant is ordered to be released on bail. the subsequent conduct of the appellant. howsoever reprehensible it may be, cannot justify the appellate court in revoking the order of bail and ordering the re-arrest of the appellant. The appellant may commit further acts of violence; he may perpetrate once again the very same offences\n\nt8ll , qt:l'RE'rl:F (\"0URT J~RPOR~ 11966] BUPP. s.c.n. •\n\nfor which he has been convicted; he may even threaten and criminally intimidate the prosecution counsel who may be incharge of the case in the appellate court; he may attempt to abscond to a foreign country to escape the trial; or he may commit acts of violence in reve11ge against the police and prosecution witnesses who have depO.!ed against him in the trial court, but the appellate court will have no power to cancel the suspension of sentence and the order of bail made under s. 426. Criminal Procedure Code. Such a situation could not have been in the contemplation of the legislature and, in our opinion, the omission\n\nto make an express provision in that behalf is manifestly due to oversight or inadvertence. In a situation of this description the High Court is not helpless and in a proper case it may take recourse to the inherent power conferred upon it under s. 561A of C the Criminal Procedure Code.\n\nThe inherent power of the High Court mentioned in s. 561 A.\n\nCriminal Procedure Code can be exercised only for either of the three purposes specifically mentioned in the section. The inherent power cannot be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked it its exercise would be inconsistent with any of the specific provisions of the Code.\n\nIt is only if the matter in question is not covered by any specific provisions of the Code that s. 561 A can come into operation. No legislative enactment dealing with procedure can provide for all cases that can possibly arise and it is an established principle that the Courts should have inherent powers, apart from the express provision of law, which arc necessary to their existence and for the proper discharge of the duties imposed upon them by law. This doctrine finds expression in s. 561A which does not confer any new powers on the High Court but merely recognises and preserves the inherent powers previously possessed by it. We are, therefore. of the opinion that in a proper case the High Court has inherent power under\"s. 561 A.\n\nCriminal Procedure Code to cancel the order of suspension of sentence and grant of bail to the appellant made under s. 426, Criminal Procedure Code and to order that the appellant be rearrested and committed to jail-custody. We should like to add that, even before s. 498(2) was enacted. there was a consensus of judicial opinion in favour of the view that, if the accused person is released on bail under s. 498(!), his bail bond could be cancelled and he could be ordered to be arrested and committed to custody under the provisions of s. 561A of the Code (Mirza Mohammad Ibrahim\n\nv. Emperor('), Seori v. Rex('), Bae/Jehu Lal v. State('), Munshi Singh v. State(')\n\nand The Crnim Prosecutor, Madras v. Krishnan(')). These decisions proceed upon the view that the exercise of inherent power\n\n(I A.LR. 1932 Al1·634.\n\n(2) A.I.R. 1948 All366.\n\n(~\\ 1,1.R, 19!1 Alt836\n\n(4) A.LR. 1062 A11·39. :01 l.L.R. [ 19'16] Mod. 62.\n\nPAMPAPATHY v.\n\nSTATE (Ram4swami, J.) 483\n\nt<J cancel bail under s. 561A was not regarded as inconsistent with the provisions of s. 498 (]) of the Code. It is true that all !hese decisions referred to cases of persons charged with non-bailable offences; but it. is significant that the provisions of s. 497(5) did not apply to these cases and the appropriate orders were passed under the purported exercise of the inherent power under s. 56 lA.\n\nIn the course of argument Mr. Ramamurthy strongly relied upon Ille decision of the Judicial Committee in Lala Jairam Das\n\nv. King-Emperor('). It was contended on behalf of the appellants that the High Court has no power to grant bail to a convicted person under s. 498 of the Criminal Procedure Code and therefore the provisions of s. 498(2) cannot be invoked to the present case. This argument is undoubtedly correct and is supported by the decision of the Judicial Committee. It was further contended by Mr. Ramamurthy on the basis of this decision that Ch. XXXIX of the Code together with s. 426 was intended to contain a complete and exhaustive statement of the powers of a High Court to grant bail, and excludes the existence of any additional inherent power in a High Court relating to the subject of bail.\n\nBut the actual decision of the Judicial Committee has no application to the facts of the present case.\n\nThe question before the Judicial Committee was whether the Code of Criminal Procedure confers any power on a High Court in India to grant bail to a person who has been convicted and sentenced to imprisonment and to whom the Judicial Committee has given special l'eave to appeal against his conviction or sentence. It was held by the Judicial Committee that the High Courts had no such power under the Criminal Procedure Code and could not grant bail to a person who has been convicted and sentenced to imprisonment and to whom the Judic; al Committee has given special leave to appeal against his conviction and sentence. The question presented for determination in the present case, namely, whether inherent power of the High Court could be exercised for cancellation of bail, was not the subject-matter of consideration before. the Judicial Committee and that question did not obviously arise in the case before them. The ratio decidendi of the decision of the Judicial Committee is therefore different and has no application to the present case. We accordingly reject the argument by Mr. Ramamurthy on this aspect of the case.\n\nWe pass on to consider the next contention of the appellants. viz., the case does not fall under s. 561A of the Criminal Procedure Code and that it is not a proper case in which the High Court should cancel bail even though it has power under s. 561 A to do so. We are unable to accept the argument of Mr. Ramamurthy as correct. An affidavit was filed before the High Court on behalf of the State by the Deputy Superintendent of Police.\n\nDevangiri Division in which it was stated that the appellants were\n\n(1) 72 J. '. 120.\n\nSc PREME COURT REPORTS [1966] Furr. s.0.11.\n\nmisusing the liberty granted to them ever since they had been enlarged on bail by committing acts of violence,. creating trouble by instigating the labour unions of Devanagiri Cotton Mills and other mills in Devanagiri with a view to paralyse the smooth working of the Mills. It was also alleged that the appellants had. constituted themselves as ring leaders of the Employees' Associa . tion and were taking part in unlawful assemblies at different times and had committed offences against the peaceful workers of the Mill. On December JI, 1965 Crime No. 360 of I 965 was re gistered against the appellants for comm1ss1on of the offences under ss. 143, 448 and 324, Indian Penal\n\nCode. On February II, 1966 Crime No. 53 of 1966 was re gistered, in which one of the appellants was alleged to have com milted offences under ss. 341 and 323, Indian Penal Code. On February 12. I 966 )let another Crinic No. 54 of 1966 was registered against the appellants for the commission of the offence under ss. 143, 147. 341. 323 and 324. Indian Penal Code. The allegation against the appellants therefore was that they were misusing the liberty granted to them by the appellate court and were indulging in acts of violence. It is true that counter-affidavits were a filed by the appellants denying the allegations made by the State but the High Court apparently took the view that the allegations\n\naginst the appellants on behalf of the State were well-foundClt and the bail granted to them by the High Court should be cancelled.\n\nIn our opinion, the allegations made agaimt the appellants would prima facie indicate abuse of the process of the Court and the provisions of s. 561A are attracted to the case and the High Court was entitled to cancel the bail of the appellants under the provisions of that section. In our opinion, Mr. Ramamurthy has failed to make good his submission on this aspect of the case.\n\nFor these reasons we hold that there is no merit in these appeals which are accordingly dismissed.\n\nAppeal dismissed.\n\nli/llllCI-2, ll00-30·6-67--011\"'", "total_entities": 77, "entities": [{"text": "STATE OF MYSORE", "label": "RESPONDENT", "start_char": 17, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "STATE OF MYSORE", "offset_not_found": false}}, {"text": "V. RAMASWAMI", "label": "JUDGE", "start_char": 66, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "V. 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{"document_id": "1966_1_55_62_EN", "year": 1966, "text": "BHRIGUNANDAN PRASAD AND ORS .\n\nTHE APPELLATE OFFICER & ORS.\n\nMarch 25, 1966 B\n\n[K. N. WANCHOO, J.C. SHAH ANDS. M. S!KRI, JJ.J\n\nEvacuee Interest (Separation) Act 64 of 1951, s. 9(1)-Mortgaged property of evacuee-Max; mum tiabilitu for interest payable to mort. gages fixed at five per cent per annum simple on principal money- C Provision c1oes not justify reopening of accounts and utilising th<f excess over five per cent towards reduction of principal.\n\nThe appellants were mortgagees of properties including a house on the basis of a mortgage-bond executed in 1928. The interest provided in the bond was 9% per annum compoundable annwrlly, In 1937 the house above referred to was sold to B subject to the earlier mortgage. In 1939 the appellants filed a suit against the original mortgagors and others including B for the amount due under the mortgage. Certain amounts towards the discharge of the liability under the\n\nmortga:ge were received by the appellants before as well as after the filing of the suit. A preliminary decree was passed in favour of the appellants in 1942 and the final decree in 1945. In 1949, B was declared an evacuee. When in 1952 the appellants put their decree in execution the property was treated as \"composite property\" and the Custodian of Evacuee Property contended before the Competent Officer that the appellants were not entitled to any interest higher than five per cent per annum simple from the date of the mortgage under s. 9(1) of the Evacuee Interest (Separation) Act, 64 of 1951. The Custodian accordingly claimed that the entire transaction should be re-opened from the date of the mortgage and 'if more than five per cent simple interest had been received by the appellants the excess should be credited towards the principal amount. The Competent Officer held that the limit of five per cent could not apply before the Act came into force. The Appellate Officer however upheld the contention of the Custodian. The appellants thereupon filed a writ petition in the High Court which was dismissed in limine, By special leave they appealed to this Court.\n\nHELD: Section 9(1) only deals with the liability of the mortgaged property which may still be due when the claim is made before the competent officer. Though the provision is retrospective in the sense that where the liability is still there, interest has to be calculated at five per cent per annum simple, there is nothing in the words of s. 9(1) which authorises the reopening of the accounts and utilising the excess over five per cent per annum simple. towards reduction of principal provided the payment of intert al l'.eady made in within the contractual rate. [61 F]\n\nOn the above view the maximum l'.ate of interest laid down in s. 9(1) was not anplicable before the date of the suit. But under s. 8(3) the decree of the Court was subject to s .. 9 and, therefore ter the date of th$ suit the said rate was applicable. rnirectlons ven B accordingly]. [61 HJ L/SiiSCl-6. 55 ,. ... ,.\n\nSUPREME COURT REPORTS ·- (1966) SUP?'. S.C.l!.•\n\nA CIVIL APPELLATE JURISDICTION: Civil Appeal No. !02 of 1964.\n\nApp;:al by special leave from the judgment and order dated.\n\nJuly 30 ,1962 of the Punjab High Court (Circuit Bench) at Delhi in Civil Writ No. 402-D of 1962.\n\nB .\n\nD. Goburdhan for the appellants.\n\nS. G. Patwardhan and B. R. G. K. Achar for the respondents. The Judgment o(ihe Court was delivered by\n\nWanchoo, J. The only question raised in this appeal by special leave from the judgment of the Punjab High Court is the interpretation of s. 9 (I) of the Evacuee Interest (Separation) Act, No. LXIV of 1951 (hereinafter referred to as the Act). The question arises irr this way. The appellants were mortgagees of certain properties. in-· eluding a house, on the basis of a mortgage-bond dated July 19,\n\n1928. The consideration of the bond was Rs. 25,000 and interest\n\nD was provided at nine per cent per annum compoundable annually.\n\nOut of the properties covered by the bond, one of the properties was sold to Bibi Chand Tara on October 23, 1937 subject to the earlier mortgage of 1928. In October 1949, Bibi Chand Tara was declared an evacuee.\n\nIn 1939 the appe11ant filed a suit against the orignal mortgagors and others including Bibi Chand Tara for the amount due under E the mortgage. A preliminary decree was passed in their favour in March 1942 and the final decree followed in April 1945. It appears that certain sums were received by. the appellants before they had filed the suit. Certain other sums were also received after the preliminary and final decrees. It further appears that certain Zamindari properties which were also included in the mortgage had been sold after the final decree and the money appropriated towards the F decree. Another house which was also included in the mortgage bbnd was sold later and the sale money was again appropriated towards the decree. Eventually the appellants pt the decree in execution in Novmber 1952 aainst the house in dispute for a sum of Rs. 60,000 and odd. There was a sale in that execution proceeding. but it was set aside on the application of the Assistant Custodian, Patna. Thereafter the appellants made an application G before. the Assistant Custodian for the recovery of the mortgae money claimed by tl:em and in this application their clahn was for\n\nRs. 40,000 and: odd, This application was a.lso dismissed as it was\n\nfile~ before a wrong' authority. Eventually the appellants filed a c!a1m. for. the sa'!le:amount before the Comp=tent Officer under the\n\n:·ct._1asmuc~ as. the .property in dispute was composite property '' m , w~1ch , the evgcuee had mortgagors interest while the appellants u ·; ho, are 'no•rH:Vl!cuees .had mortgagees• interest v; h:ch had rip.ened\n\nmt'? a decree for sale. This application was resisted by : the Custodian on a number of grounds. In the present appeal we are only_\n\nBHRIGUNANDAN v. APPELLATE OFFICER (Wanchoo, J.) 57\n\nconcerned with one ground based on s. 9 (!) of the Act The contention of the Custodian was that the appellants were not entitled to any interest higher than five per cent per annum simple from the date of the mortgage under s. 9 (!) of the Act. Therefore the Custodian claimed that the entire transaction should be reopened from the date of the mortgage and the amounts already received by the appellants should be taken into account after allowing interest at five per cent per annum simple to them and if more interest had been paid that should be credited towards the principal and after such accounting the sum if any due on the mortgage could be claimed by the appellants.\n\nThe Competent Officer held that though the provisions of s. 9 (I) were retrospective to a certain extent they could not be stretched to mean that if a mortgagee had already realised interest at a rate exceeding five per centum per annum simple even before the Act came into force the excess would go to liquidate the principal amount proportionately. He therefore held that in the absence of special provision to the effect that past accounts should be reopened, the amount received as interest prior to the decree could not be taken into account. The Competent Officer further held that the principal money could not be reduced on account of any excess reaFsation of interest when such excess was realised before the Act came into force. He therefore ordered that (1) the amount of interest exceeding five per cent per annum before the institution of the suit would not reduce the principal amount, (2) the appellants would be entitled to simple interest at six per cent per annum, i.e. the rate at which interest was decreed in their favour in the mortgage suit from the date of the institution of the suit till November 26, 1952 on the principal sum only, (3) the appe1'ants would be entitled to interest at five per cent per annum simple from November 27, 1952, and (4) the appellants would also be entitled to costs of the suit decreed in their favour. The actual amount due was ordered to be worked out on these principles.\n\nThe Custodian took the matter in appeal to the Appellate Officer. The Appellate Officer held that on the words of s. 9 (1) the entire account must be made afresh on the basis of interest being allowed at five per cent per annum simple on the principal amount G from the date of the mortgage, and that any sums received over and above this would go to reduce the principal. He therefore\n\natlowed the appeal and set aside the order of the Competent Officer and ordered account to be taken in the manner indicated by him.\n\nThe appellants then applied to the Punjab High Court by a writ petjtion, which was dismissed in Umin~. Their application fur a leave to appeal to this Court was also dismissed. Thereafter they ,·. qbtained s_qecial leave from this Court, and that is how the matter l!astomeoefore us,\n\nL'$5SC!-6 '\n\n1$8 Bl'PREME COURT REPORTS\n\n(1966] SUPP. B.C.R.\n\nThe Act deals with separation of the interest of an evacuee A from the interest of a non-evacuee in composite properties. Under s. 2 (d) \"composite property\" inter alia means any property which, or any property in which an interest, has been declared to bo evacuee property and in which the interest of the evacuee is subject to mortgage in any form in favour of a person, not being an B evacuee. Under s. 2 (hi. \"principal money\" in relation to a mortgage deed executed by an evacuee inter a/ia means in the case t>f mortgage deed which has not been executed by way of renewal of a prior mortgage deed. the sum of money advanced by way of loan at the time of the execution of the mortgage deed. Under s. 3 the Act and the rules and orders made thereunder have effect notwith C standing anything inconsistent therewith contained in any other law fur the time bcin!! in force or in any instrument having effect by virtue of any such law. save as otherwise expressJ.y provided in the Act. Sections 4 to 8 provide for machinery for separation of the claims of evacuees and non-evacuees in composite properties. Then we come lo s. 9(1) which is in these terms: -\n\n\"(() Notwithstanding anything to the contrary in any law or contract or any decree or order of a civil court or other authority. where the claim is made by a mortgagee, no mortgaed property of an evacuee shall, subject to the provisions of sub-section (2) be liable for the payment of interest at a rate exceeding five per cent per annum simple on the princinal money advanced or deemed to have been advanced.\"\n\nIt is unnecessary to refer to s. 9(2\\ for we are not concerned with: that provision in the present appeal.\n\nWe mav however refer to s. 8(3) which is material and in these terms:_\n\n\"(3) If there is anv dispute as to whether a liability is a mortgage debt or not or whether any claim submitted\n\nunder section 7 exists. the Competent Officer shall decide such dispute :\n\nProvided that a decree of a civil court (other than an ex narte decree passed after the 14th day of August. 1947) shall. suhject to the provisions of sec- G tions 9 and I 0. be binding on the Competent Officer in respect of any matter which has heen finally decided by such decree: and where any matter was decided bv an ex parte decree passed by a civil court after the 14th dav of August, 1947. the Competent Officer mav decide such matter afresh and on such decision being H made the ex parte decree shall be deemed to have uo effect.\"\n\nf.\n\nA •\n\nJlRRIGUNANDAN v. APPLELLATE OFFICER (Wanchoo, J.) 59\n\nSection 10 provides for separation of the interest of evacuee from the interest of claimants in composite properties and lays down how that wiil be done. Clause (b) specially provides for the manner in which the claim of a mortgagee will be dealt with by the Competent Officer, but we are not concerned with the details of tha.t provision.\n\nIt will be seen from a consideration of these provisions that the Competent Officer is bound by the decree of a civil court except an ex parte decree passed after August 14, 194 7 in respect of a mortgage subject to the provisions of ss. 9 and 10. Section JO indicates how the Competent Officer is to separate the interest of an evacuee from the interest of a non-evacuee, even in the case of a decree except an ex parte decree passed after August 14, 1947.\n\nSection 9(1) provides for interest at five per cent per annum simple, and the decree in a mortgage suit except an ex parte decree passed after August 14, 1947 which is otherwise binding on the Competent Officer is subject to the provisions of s. 9(1) as to interest. It will also be noticed that there is no provision in the Act which specifically provides for reopening of transactions relating to mortgage and taking accounts from the date of the mortgage on the basis of interest provided in s. 9(i) and for crediting anything paid as interest over and above the rate provided in s. 9(1) towards principal. Prima facie therefore in the absence of such a provision it cannot be assumed that the legislature intended that a mortgage transa.ction should be reopened from the date of the mortgage and accounts taken afresh and anything paid in excess of five per cent per annum simple interest applied towards reduction of the principal amount. We have therefore to see whether there is anything in the words of s. 9(1) which leads to this result in the absence of a specific provision to that effect in the Act.\n\nSection 9(1) begins with a non-obstante clause and lays down that it will apply notwithstanding anything to the contrary in any law or contract or any decree or order of a civil court or other authority. It then provides that where a claim is made by a mortgagee, as in the present case, no mortgaged property of an evacuee shall be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced. The key words in the provision are \"no mortgaged property shall be liable\". These words indicate that the Competent Officer when he comes to deal with a liability under a mortgage must calculate this liability on the basis that interest should be allowed only on the principal amount and only at the rate of five per cent per annum simple. The liability which the Competent Officer has to determine is with respect to the amount still due to the non-evacuee. Further as the non-obstante clause includes any decree of a civil court and as such decree is subject to s. 9(1) in view of the proviso to s. 8(3), the Competent Officer would not be bound by the calculation ol\n\ninterest made by the civiJ. court and would have to determine the\n\nSUPREJU: COl1RT_REPOBT8 (1966)\n\nSUPP.\n\n8.C.B.\n\ni..-.. ..... liability still due on the mortgage himself on the basis of simple interest at the rate of live per cent per annum on the principal sum advanced. Any calculation made by the civil court m arnving at the sum decreed by it on the basis of interest at more than live per cent per annum so far as the liability still due is concerned would not be binding on the Competent Ollicer and he will have to make his own calculations on the basis of simple interest at the rate of live per cent per annum. Similarly in a case where there is no decree and there is still some liabtlity on the mortgage, the Competent Officer would not be bound by the rate of interest mentioned in the mortgage deed and will calculate the liability still due on the basis of simple interest at the rate of live per cent per <rnnum\n\non the principal amount advanced. But s. 9(1) clearly shows that it applies only where the liability is still due and there is nothing in the words of s. 9(1) which gives power to the Competent Officer to reopen the account under the mortgage from the date of the mortgage and for that purpose treat anything paid as interest under the contract over and above five per cent per annum simple interest as pa}ment towards reduction of the principal amount Section 9(1) in our opinion only deals with liability still due and does not contemplate that any payments made already under the contract as interest should be taken partly towards interest and\n\npartly towards principal if they are above live per cent per annum simple interest. As s. 9(1) speaks only of the liability of the mortgaged property it can only take in liability still due, for whatever has been paid in accordance with the contract towards interest is no longer a liability. This conclusion based on the words of s. 9(1) is enforced by the fact that there is no specific provision in the Act for reopening all accounts under the mortgage from the date of the mortgage, treating any interest paid already at a rate higher than five per cent per annum simple as going towards reduction of the principal sum.\n\nTwo situations may arise before the Competent Ofiicer in such circumstances when calculating the liability under a mortgage. In one case there may be no decree already passed in favour of the mortgagee. In such a case in calculating the liability still due on the mortgage, the Competent Ofiicer will calculate that liability on the basis of simple interest at the rate of five per cent per annum on the principal money advanced and may ignore the rate of interest mentioned in the contract. But even so, the words of\n\ns. 9(1) do not give him power to reopen the accounts and whatever has been paid towards interest, if it is not in excess of the contractual rate of interest though it may be in excess of the rate of five per cent per annum simple interest, cannot be taken into account in reducing the principal amount. But whatever is still due under the mortgage will have to be worked out on the basis of H simple interest at the rate of five per cent per annum on the principal amount advanced. We may illustrate this by an example.\n\n...\n\n~ '\n\niHRIGUNAND.Ui 'II. Al'PlilLL.i.Tlil OFFICER (Wanclioo,, J.) Ill ·- Sllppose a mortgage was entered into on January 1, 1949 and tho interest therein is nine per cent per annum. Suppose that mterest for the years 1949 and 1950 has been paid at the contractllal rate but nothing has been paid thereafter. ln such a case, the amount paid in excess of five per cent per annum for .1949 and J950 will not go to reduce the principal; but thereafter interest will be calculated at five per cent per annum to arrive at the liability on the mortgaged property or wha.t is still due.\n\nThe second case which may arise before the Competent Officer would be a case where a decree has been passed on the mortgage bond except an ex parte decree passed after August 14, 1947. ln such a case also the Competent Otlicer cannot take into account anything paid in excess of five per cent per annum simple interest before the date of the suit provided it is not at more than the contractual rate; but as the decree is subject to s. 9(1), the Competent Officer will have to cakulate interest a.t five per cent per annum simple from the date of the suit and cannot award more\n\ninterest in calculating the liability still due under the mortgage.\n\nOf course in both the cases if before the suit nothing has been paid towards interest or if something has been paid but it is less than five per cent per annum simple interest on the principal amount advanced, the Competent Officer in calculating the liability still dlle on the mortgage will have to allow five per cent per annum simple interest from the date of the mortgage to make up the deficiency, if any. As we read s. 9(1), we find no provision in it for reopening the account from the very beginning and utilisinJi\n\nany interest paid in excess of five per cent per annum simple but within the contractual rate towards reducing the principal amount.\n\nSection 9(1) only deals with the liability of the mortgaged property which may still be due when the ciaim is made before the Competent Officer. Though the provision is retrospective in the sense that where the liability is still there, interest has to be calculated at five per cent per annum simple there is nothing in the words of s. 9(1) which authorises the reopening of accounts and utilising the excess over five per cent per annum towards reduction of principal provided the payment of interest already made is within the contractual rate.\n\nIn this view the order of the Appellate Officer by which he ordered the reopening of the accounts and which was upheld by the High Court is incorrect. At the same time we are of opinion that the order of the Competent Officer is also not quite correct, though it is more in accord with the interpretation of s. 9(1) which we have indicated above. On the view we have taken the liability will be calculated thus: Any amount paid before the date of the suit i.e. December 11, 1939, provided it is not more than the contractual rate of interest though it may be above five per cent per annum simple will not go to reduce the principal amount. From the date of the suit till the date of the final decree i.e. April 25,\n\n62 SUPllF.l!E COURT REPORTS ll966] SUPP. s.c.R.\n\n1945, the appellants will only be entitled to simple interest at the rate of five per cent per annum on the principal amount advanced for the decree though binding on the Competent Officer is subject, under the proviso to s. 8(3), to s. 9(1). Further from the date of the final decree also the appellants will be entitled to simple interest at the rate of five per cent per annum on the principal amount only. Any payments made after the date of the suit will be adjusted first towards interest at the rate of five per cent per annum simple and any payment made in excess thereof will go to reduce the principal. The appellants will also be entitled to the costs of the suit which was decreed in their favour, but there will be no interest on such costs. The account will be made up accordingly to determine the liability due under the mortgage. Thereafter it will be for the Competent Officer to deal with the matter as provided under s. IO(b) or (cl.\n\nWe therefore allow the appeal. The writ petition is alloweJ and the order of the Appellate Officer is set aside and the order of the Competent Officer varied in the manner indicated above. 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{"document_id": "1966_1_63_67_EN", "year": 1966, "text": "CHARAN SINGH AND ORS.\n\nBABULAL AND ORS.\n\nMarch 25, 1966\n\n(K. N. WANCHOO, J. C. SHAH ANDS. M. SIKRI, JJ.]\n\nUttar Pradesh Consolidation of Holdings Act (5 of 1954), ss. 12 & 37-Modification of award by Civil Judge-If Appealable under s. 39 of the Arbitration Act (10 of 1940).\n\nDuring consolidation proceedings in a village, under the Uttar Pradesh Consolidation of Holdings Act, 1954, a question of title arose, and the Consolidation Officer referred the question to the Civil Judge who referred it to an arbitrator appointed under s. 37 of the Act. The Arbitrator submitted his award to the Court. The appellants filed objections under s. 15 of the Arbitration Act, 1940, and the Civil Judge modified the award. On appeal by the respondents, the District Court held that the appeal was maintainable and that the Civil Judge was not justified in modifying the award. A revision petition to the High Court filed by the appellants was dismissed.\n\nIn appeal to this Court, it was contended that s. 39 of the Arbitration Act, which provides for appeals does not apply to arbitrations under s. 37 of the U.P. Act.\n\nHELD: The decision of the Civil Judge modifying, the\\ award was appealaple under s. 39 of the Arbitration Act. r67 Al\n\nThe effect of s. 37 of the U.P. Act read with ss. 46 and 47 of tha Arbitration Act is, to apply ss. 15 and 39 of the Arbitration Act to the proceedings under the U.P. Act; and under s. 12(5) of the U.P. Act what is made final is the decision of the arbitrator as it emerges after oppropriate proceedings, under the provisions of the Arbitration Act. r65 G-H; 66 Hl.\n\nCarju Prasad v. Civil Judge, Farmkhabad, I.L.R. rrn591 1 All- 354 and Sayed Ulla Khan v. The Temporary Civil Judge, Su.ltanpur, A.LR. 1959 All 331, approved.\n\nAttar Singh v. State oj U.P. [1959] Supp, 1 S.C.R. 928, explained.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 76 of 1964 .\n\nAppeal by special leave from the judgment and order dated the October 26, 1960 of the Allahabad High Court in Civil Revision No. 1209 of 1957.\n\nJ. P. Goyal, for the appellants.\n\n0. P. Rana, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nSikri, J. This appeal by special leave is directed against the judgment of Dhavan, J., in Civil Revision No. 1209 of 1957. The\n\nSUPl\\El>IE COUJIT REPORTS\n\n(1966) BL-PP, 11.c.ii.\n\nlearned Judge, following Sarju Prasad v. Civil Judge, Farrukhabad(') held that an order of the Court on an objection against an award made under s. 12(4) uf the Cttar Pradesh Consolidation of Holdings Act (U.P. Act V of 1954! (hereinafter called the Act) was appealable under s. 39 of the Arbitration Act (X of 1940)\n\nMr. J. P. Goyal, learn.:d counsel for the appellant urges that this decision of the Allahabad High Court is wrong.\n\nIn order to appreciate the contentions of Mr. Goyal, it is necessary to give a kw facts and set out the relevant statutory provisions.\n\nDuring consolidation proceedings in village Ohara ki-Garhi, a question of title arose.\n\nThe Consolidation Officer, acting under s. 12(4) of the Act, referred the question of title to the Civil Judge, Aligarh, who referred the same to the arbitrator, Shri Vikram Singh, who had been appointed under s. 37 of the Act. Section 12(4) reads as under:\n\n\"12(4) Where the objection filed under sub-section {1) involves a question of title and such question has not already been determined by a competent Court, the Consolidation Officer shall refer the question for determina- D lion to the Civil Judge having jurisdiction who shall thereupon refer it to the Arbitrator.\"\n\nSection 37 provides:\n\n\"37. Arbitration-{!) Where any matter is, by or under this Act, directed to be referred to an Arbitrator for determination. the Arbitrator will be appointed by the State Government from amongst Civil Judicial Officers or Assistant Collector of the I class of not less than five years' standing and in all other respects the matter shall be deterrn; ned in accordance with the provisions of the Arbitration Act, 1940.\n\n(2) The appointment of an Arbitrator under sub- F section {!) may be made either generally or in respect of any particular case or class of cases or in respect o( any specified area or areas.\"\n\nThe arbitrator gave his award on May 14, 1956, and submitted the same to the Civil Court for final decision.\n\nOn May O 19, 1956, Charan Singh. Dungar Singh, Maharaj Singh and Lajja Ram, appellants before us, filed objections before the Civil Judge.\n\nAligarh. The Civil Judge. on September 8,\n\n1956. modified the award dated May 14. 1956.\n\nBahu Lal, Mohar Singh and Ram Piyari filed an appcal before the District Judge against the order of the Civil Judge, dated September 8, 1956.\n\nBefore the District Judge, a preliminary objection was raised that no appeal lay B -----\n\n(') 1.1..1{. [ 195~] I \"'.U. 354.\n\nA •\n\nCHARAN SINGH V. BABULALjSikri, J,) 65\n\nagainst the order of the Civil Judge. The District Judge overruled the objection. On the merits, the District Judge held that the Civil Judge was not justified, under s. 15 of the Arbitration Act, in modifying the award merely because he disagreed with the finding. He, therefore, allowed the appeal and set aside the order of the Civil Judge modifying the award, and the award announced by Shri Vikram Singh was accepted.\n\nCharan Singh, Maharaj Singh, Doonger Singh and Lajja Ram filed a petition before the High Court under s. 115 of the Civil Procedure Code. As stated above, Dhavan, J., dismissed the petition on the ground that an appeal lay under s. 39 of the Arbitration Act. This Court granted special leave and now the matter is before us.\n\nMr. Goyal contends that s. 37 of the Act applies the provisions of the Arbitration Act only as far as procedure is concerned, and s. 39 of the Arbitration Act which provides for appeals does not apply to arbitrations referred to in s. 37 of the Act. He relies strongly on s. 12(6) of the Act which provides that the decision of the arbitrator under sub-s. (4) shall be final.\n\nWe have already set out s. 12(4). He, however, does not contend that the provisions of s. 15 of the Arbitration Act do not apply because the appellants had apparently applied under s. 15 of the Arbitration Act to the Court to modify the award made by Vikram Singh and they had succeeded in getting an order modifying the award in their favour.\n\nIn our opinion, the High Court arrived at the correct conclusion in Sarju Prasad v.\n\nCivil Judge, Farrukhbad(') and Sayeed Ullah Khan v. The Temporary Civil Judge of Sultanpur.(') Section 12(4) of the Act provides for a statutory arbitration and s. 37 of the Act provides for the appointment of an arbitrator by the State Government. It seems to us that apart from the question of appointment of the arbitrator, in all other respects the matter referred to, i.e. the question of title referred to under s. 12(4), shall be determined in accordance with the provisions of the Arbitration Act.\n\nSection 37 of the Act does not make any distinction between provisions like s. 39 and s. 15 of the Arbitration Act.\n\nFurther, the eITect of s. 46 ands. 47 of the Arbitration Act is that all the provisions of the Arbitration Act except sub-section (!) of section 6, ss. 7, 12, 36 and 37, apply to arbitrations under the Consolidation of Holdings Act. Section 37 of the Act cannot be held as providing anything inconsistent with this. In our opinion, the effect of s. 37 of the Act, read with ss. 46 and 47 of the Arbitration Act, is inter alia to apply ss. 15 and 39 of the Arbitration Act to the proceedings under the Act. It is not necessary to rely\n\n(') I.I,.R, (1959) I All. 354. (') I.L.R. (1959) I All. 331.\n\nCG BUl'RiYE COURT REPORTS\n\n[1966) SUPP. 8.C.R.\n\non rr. 63 and 64 of the littar Pradesh Consolidation of Holdings A Rules, 1954, but we may mention that they proceed on the basis that ss. 15, 16 and 30 of the Arbitration Act apply to the arbitration proceedings under the Act.\n\nMr. Goyal then urges that this Court in the case of Altar Singh v. The State of U.P.(') understood s. 37 of the Act to mean B that it makes the Arbitration Act applicable to the proceedings before the arbitrator in the matter of procedure only.\n\nIt is true that at p. 935 of the judgment, Wanchoo, J., observed:\n\n\"Further s. 12 provides that where there is a dispute as to title and such question has not already been determined by any competent Court, the Consolidation Officer c has to refer the question for determination to the Civil Judge who thereat'ter will refer it to the arbitrator. The arbitrator then proceeds in the manner provided by r. 73 (<ic 63) and gives a hearing to the parties and takes evidence both oral and documentary before making his award; and s. 37 of the Act makes the Arbitration Act applicable to the proceedings before the arbitrator in the D matter of procedure.\"\n\nWe are unable to agree with Mr. Goyal that this passage in any manner decides the point which is before us.\n\nThis Court in Attar Singh's(') case was concerned with the validity of the Act, and ground No. 2 which was urged before the Court was:\n\n\"Sections 8, 9 and 10 read with s. 49 of the Act provide a procedure for the correction and revision of revenue records for villages under consolidation, which is vitally different from that applicable to villages not under consolidation, and there is thus discrimination which offends art. 1-l of the Constitution.\"\n\nIn dealing with this ground, Wanchoo, J., made the observations which have been set out above. There was no quection there of considering the effect of ss. 46 and 47 of the Arbitration Act. nr considering whether s. 39 of the Arbitration Act applies to arbitrations under s. 12(4) of the Act.\n\nMr. Goyal also laid a great deal of emphasis on s. 12(6) of\n\nthe Act which provides that the decision of the arbitrator under • sub-s. (4) shall be final. In our opinion, s. 12(6) must be read with\n\n&. 37 of the Act, and if it is so read it is quite clear that what is made final is the decision of the arbitrator as it emerges after appropriate proceedings. if any, have been taken under the pro- '\"\" visions of the Arbitration Act.\n\nH -------·-···--------- - -·--· (') [19~9] Supp. l SCI\\ 92S.\n\n' ! .\n\n\"'I\n\nCHARAN\n\nSINGH V.\n\nBABULAL (Sikri, J.) 67\n\nIn the result we hold that the High Court is right in holding that the decision of the Civil Judge modifying the award was appealable under s. 39 of the Arbitration Act. 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"statute": "Pradesh Consolidation of Holdings A Rules, 1954"}}, {"text": "Sections 8, 9 and 10", "label": "PROVISION", "start_char": 9038, "end_char": 9058, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 49", "label": "PROVISION", "start_char": 9069, "end_char": 9074, "source": "regex", "metadata": {"statute": null}}, {"text": "art. 1", "label": "PROVISION", "start_char": 9323, "end_char": 9329, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 46 and 47", "label": "PROVISION", "start_char": 9507, "end_char": 9520, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 9568, "end_char": 9573, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(4)", "label": "PROVISION", "start_char": 9627, "end_char": 9635, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(6)", "label": "PROVISION", "start_char": 9697, "end_char": 9705, "source": "regex", "metadata": {"statute": null}}, 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{"document_id": "1966_1_68_73_EN", "year": 1966, "text": "RAM K15HORE A\n\nSTATE OF U.P.\n\nMarch 28. 1966 B\n\nIK. N. WA?>CHOO, J. c. SHAH AND s. M. SIKRI, JJ.)\n\nTrade and Merclumd'se Marks Act, 1958 (Act 43 of 1958) .. ss. 77, 92-Time prescribed for launching pro.<ecution-Date of first discover!/ of infringPT7!€nt of trade mark whether relevant for Teckc.:riing such time-Plea of acquiescence uihen can be raised.\n\nIn 1955 the complainants protested to the appellant that he was infringing their trade-mark but no futher action was taken by them at that time. In November 1960 the appeJlant was found in pos'5sion of labels and tobacco tins carrying marks deceptively similar to the complainants' trade mark. After investigation the police lodged in March 1961 a charge-sheet against the appellant in respect of aJleged offences under s 78 read with \"· 77 and s. 79 of the Trade and Merchandise Mark• Act 1958. The trial M3gistrate convicted the\n\nappellant who was however acquitted by the Ses.sions Judge principally on the ground that the prosecution w>as barred as it was not instituted within the per:od prescribed bv s. 92 of the Act. In appeal against the orde\" of acquittal the High Cou\"t convicted him but granted him a certificate under Art. 134 of the Constitution.\n\nHELD: The period under s. 92 cf 1ho Trade and Merchandise Marks Art. 1958 commences to run from the date of the commission of the off.r..r:-e chRrj!rd or fTom thed<)te of dlscmery1 b,1 the prosecutor of the a/fence charged. The period docs not have to be reckoned from the first discovery of infringcm•nt of trade-mark by the prosecutor. Tn this respect s. 92 of tho Act of 1958 is matcr:allv difTcrent from s. 15 of toe Merchandise Marks Aot 4 of 1839. [73A-D]\n\nRuppell v. Ponnusami Tava-i and Anr., I.L.R. 22 Mad 488 and Dau Dayal v. State of Uttar Pradesh, A.LR. 1959 S. C. 433, distinguished.\n\nAbdulsatar Khan Kamruddin Klian v. Ratan!al Kislienalal, T.L.R. 59 Born. 551 anrl Emperior v. Chhotalal Amarchand, J.L.R. (1937) Born. 183, referred to.\n\nThere was nothing to •ubstantiate the appellant's plea based on •\n\n1. 77 of the AM that tho complainants h'd acquiesced in his use of the deceptive trade-mark.\n\nCRl}fi~AL APPELLATE JURISDICTION: Criminal Appeal No. 37 G\n\ncl!%~ ·~\n\nI ' '\n\nAppeal from the judgment and order dated November 26. , 1963 of the Allahabad High Court in Government Appeal No. 782 of 1962.\n\nS. P. Sinha. G. L. Sanghi, Ganpat Rai, E.\n\nC. Agarwala, S. S. Khanduja for P. C. Agarwala, for the appellant.\n\nB Atiquor Rehman and O. P. Rana, for the respondent.\n\n' A\n\n:a:\n\nThe Judgment of the Court was delivered by\n\nShah, J. The appellant was charged before a Magistrate, 1st Class, at Varanasi with being, on November 25, 1960, in possession of counterfeit labels which could be used to pass off his \"tobacco tins\" as the goods of Mis Nandoo Ram Khedan Lal bearing \"Titli\" (butterfly) trade-mark, and with being in possession for sale of \"tobacco tins\" bearing counterfeit trade marks of the genuine \"Titli\" brand trade-mark of Mis Nandoo Ram Khedan Lal. The Trial Magistrate convicted the appellant and sentenced him to suffer simple imprisonment for three months for offences under s. 78 read with s. 77 and under s. 79 of the Trade and Merchandise Marks Act 43 of 1958, and directed the two sentences to run consecutively. In appeal to the Court of Session, Varanasi, the order passed by the Trial Magistrate was set aside and the appellant was acquitted principally on the ground that the prosecution was barred because it was not instituted within the period prescribed by s. 92 of the Act. The High Court of Judicature at Allahabad however set aside the order of acquittal and restored the conviction, but reduced the sentence on each of the charges to a fine of Rs. 1,000 i-. With certificate granted by the High Court under Art. 134 of the Constitution, this appeal has been preferred.\n\nMis Nandoo Ram Khedan Lal-who will hereinafter be called \"the complainants\"-carry on in the town of Varanasi, business in \"chewing tobacco\". They were marketing their product for the last many years under a trade-mark styled \"Titli\" (butterfly). The label on the containers of \"chewing tobacco\" shows figures of three butterflies on yellow-green background and the legend \"Titli\" in Devnagari and English characters. The appellant who carried on business also in \"chewing tobacco\" commenced market his goods in the name of \"Tilli\"\n\n(partridge). The label on the containers had figures of four butterflies on leaf-green background, and the legend \"Titli\" in Devnagari and English characters. The colour schemes of the butterflies in the complainants' label and of the butterflies in the appellant's label were substantially similar .\n\nThe complainants gave information to the police in November 1960 that the appellant had infringed their trade-mark by marketing his goods under a trade-mark calculated to deceive the purchasers into believing that they were purchasing the product of the complainants. The police submitted a charge sheet against the appellant for offences under s. 78 read with s. 77 and s. 79 of the Trade and Merchandise Marks Act, 1958. The Trial Magistrate observed that there was close resemblance between the labelused by the complainants and the label used by the appellant, . a13,~ th.at a vast. majoriW. '?f user~ 9( sue~. lqaco bipg illiterte\n\nwere likely to be \"camea away by a p1ctonal device of \"Tilli\"\n\nSUPREME COURT RF.PORT [1966]\n\nSUPP.\n\nS.C.R.\n\n(butterfly)\" since they were incapable of reading and understanding the \"descriptions on the label in Dcvanagri and in English\".\n\nWith this view the Sessions Judge and the High Court agreed.\n\nBefore us, no substantial argument has been advanced which would justify us in taking a different view on this question.\n\nIt was however contended for the appellant that the case against him must still fail because the prosecution was barred by s. 92 of the Trade and Merchandise Marks Act, 1958, and also because there was such acquiescence on the part of the complainants as would justify an inference that they had assented to the appellant using the trade-mark under which his product was marketed. To appreciate these two contentions, it is necessary to refer to certain facts.\n\nSome time before 1955 the appellant had started marketing his goods under the trade-mark \"Tit Ii\": there is however no evidence about the general get-up of the label on the containers of \"chewing tobacco\" marketed by him at that time.\n\nOn January 6, 1955 the complainants wrote a letter to the appellant claiming that they were the sole proprietors of \"Tit/i\" brand. that \"Titli\" was their registered trade-mark, and the appellant had \"with criminal intention started making illegal and unlawful use of that trade-mark\" and had copied their trade-mark and was using it on similar but inferior \"chewing tobacco\" and was passing off his goods in the market as the product of the complainants; and on those allegations the complainants called upon the appellant to desist from selling or disposing of any of the goods with labels resembling to the complainants' trade-mark and thereby deceiving the public into purchasing the appellant's product when the public desires to purchase the complainants' product and making several other incidental requisitions.\n\nIn reply, the appellant denied that the complainants were the sole proprietors of \"Titli\"\n\ntrade-mark and that in any event the appellant had not used the trade-mark \"Titli\" on any goods manufactured by him.\n\nThe appellant also claimed that he had been marketing his goods in the name of \"Titli\" for many years and that the complainants were seeking to pas< off their product as that of the appellant.\n\nAfter thi~ correspondence no steps were taken by the complainants against the appellant till November 1960.\n\nThe apnellant was on information loded bv the complainants prosecuted for offences under s. 78 read with s. 77 and s. 79 of the Trade and Merchandise Marks Act.\n\n1958. The appellant submitted that whereas the complainants bad on their own admission learnt about infringement of their trade-mark in 1955, criminal proceedings started in November 1960 were barred under s. 92 of the Trade and Merchandise .Marks Act, 1958. It may be p.oti.ced however that the offences chlZl'!Jed against the appellant\n\n.. --\n\nwere alleged to have been committed on November 25, 1960, ant. the charge-sheet was lodged in the Court of the Magistrate, !st Class, on March 22, 1961. Section 92 of the Trade and Merchandise Marks Act, 1958, insofar as it is material, provides:\n\n\"No prosecution for an offence under this Act ........ . .. .. . .. .. .. . .. . .. . shall be commenced after the expiration of three years next after the commission of the offence charged, or two years after the discovery thereof by the prosecutor, whichever expiration first happens.\" In substance the appellant in relaying upon the bar of s. 92 seeks to substitute for the words \"after the discovery\" the words \"after the first discovery\", and for the words \"after the commission of the offence charged\" the words \"after the commission of the first infringement of trade-mark\". The Legislature has deliberately not used those expressions, and there is no warrant for substituting them in the section and thereby substantially modifying the section.\n\nCounsel for the appellant however submitted that in interpreting s. 15 of the Merchandise Marks Act 4 of 1889, which is similar to s. 92 of Act 43 of 1958, the Madras High Court had in Ruppe/I v. Ponnusami Jevan and Another(') held that a prosecution under s. 15 of the Merchandise Marks Act 4 of 1889 commenced after the expiration of the perioi:! prescribed by the Legislature from the date when the infringement was first discovered, is barred and that this Court had in Dau. Dayal v. State of Uttar Pradesh(') affirmed that view.\n\nIn Rupell's case(') the accused was charged with committing an offence punishable under s. 15 of the Indian Merchandise Marks Act, 1889, on a complaint that the accused had infringed the complainant's trade-mark. It appeared at the trial that the complainant had discovered in 1893 that goods were sold by the accused marked with a trade-mark which was similar to his trade-mark, and the complainant had called upon the accused to discontinue user of the counterfeit trade-mark and to render an account of sales made by him.\n\nIn 1898 the complainant prosecuted the accused for infringing his trade-mark.\n\nThe High Court of Madras held that as the complainant did not show that he believed the use of the alleged counterfeit trade-mark had been discontinued after the first discovery and protest in 1893, prosecution of the accused in 1898 under s. 15 of the Indian Merchandise Marks Act, 1889, was barred. This view was followed by the Bombay High Court in A bdulsatar Khan Kamruddin Khan\n\nv. Ratanlal-Kishenlal,('): The Court observed in that case that under s. 15 of the Indian Merchandise Marks Act, 1889, if the offence of infringement of a trade or property mark is a continuing one, and if no discontinuance is proved, time runs from the first\n\n(') I.L.R. 22 Mad. 468.\n\n('I A.I.R. 1959 S.C. 433. 1a) I.L.R. 59 Born. 551.\n\nSUPREME OOURT REPORTS [1966] BUPP. s.o.a.\n\ninstance of infringement or from the first discovery of the infringement.\n\nAbdu/satar Khan's case(') was however overruled by a full bench of the Bombay High Court in Emperor v. Chhotalal Amarchand.(') In that case the Court dissenting from the judgment of the Madras High Court in Ruppe/l's case(') and overruling the decision in Abdu/satar Khan's case(') held that under s. 15 of the Indian Merchandise Marks Act, 1889, starting point of limitation in all cases is the date of the offence charged.\n\nIn Dau Dayal's case,(') Venkatarama Aiyar, J., incorporated substantially the whole of the judgment in Ruppe/l's case:(') but in Dau Daya/'s case(') the matter in dispute was entirely different.\n\nIn that case the accused was prosecuted for offences punishable under ss. 420, 482, 483 & 486 I.P. Code on the allegation that he was in possession of Bidis which bore counterfeit trade-marks. A complaint was filed against the accused on March 26, 1954, and after investigation by the police, a charge-sheet was filed in the Court of the Magistrate on September 30, 1954. The accused contended that the offence was discovered on April 26, 1954, and since process was issued by the Magistrate on July 22, 1955, i.e. more than one year after discovery of the offence he could not, because of s. 15 of the Merchandise Marks Act, 1889, be prosecuted. This Court rejected the plea raised by the accused. An excerpt from the judgment in Ruppe/l's case(') was incorporated only to indicate the general tenor of s. 15, and not with a view to express approval of all that was observed therein.\n\nWe are however in this case not called upon to consider whether Ruppe/l's case(') was correctly decided. That case was decided on the interpretation of s. 15 of the Merchandise Marks Act,\n\n1889. Suffice it to say that the Legislature has in enacting the Trade and Merchandise Marks Act 43 of 1958 made a substantial departure from the language used in s. 15 of Act 4 of 1889. For the sake of convenience the material parts of the two sections may be set out in juxtaposition:\n\nSection 15 of Act 4 of 1889\n\nNo such prosecution .......... ehall be commenced after the expiration of three years next after the commission of the offence, or one year after the first discovery thereof by the prosecutor. whichever expiration first happens.\n\nSection 92 of Act 43 of 1958\n\nNo prosecution for an offence under this Act ............ shall be commenced after the expiration of three years next after the commission of the offence charged, or two years after the discovery thereof by the prosecutor, whichever expiration first happens. ---------- ---------------------\n\n('} I.J,, R. 59 Rom. 551. ('! l.J,.R. 22 !!ad. 4BB.\n\n(') J.L.R. (1937) Dom. 183.\n\n(') A.I.R. 1959 S.O. 433,\n\nI _r--\n\n' 1\n\n• A\n\nThe Legislature in enacting s. 92 of Act 43 of 1958 has clearly made departure from s. 15 of Act 4 of 1889 in important respects.\n\nWhereas under s. 15 prosecution had to be commenced within three years next after the commission of the offence or within one year after the first discovery thereof by the prosecutor, under s. 92 the prosecution must be commenced before the expiration of three years next after the commission of the offence charged, or two years after the discovery by the prosecutor of the offence charged, whichever expiration first happens. Under s. 92 it is plain the period commences to run from the date of the commission of the offence charged or from the date of discovery by the prosecutor of the offence charged. The argument which could be raised under s. 15 and was approved in Ruppe/l's case(') that the Legislature intended to provide that the period shall commence from the first discovery thereof by the prosecutor is plainly not open to the offender infringing the provisions of the Trade and Merchandise Marks Act under s. 92. The period has to be computed for the purpose of the first part of the section from the date of the com mission of the offence charged, and under the second part from the date of discovery of the offence charged, and not from the first discovery of infringement of trade-mark by the prosecutor.\n\nThe plea that the complainants had assented to the use of the trade-mark by the appellant, and on that account the latter could not be said to have falsified a trade-mark or to have falsely applied the trade-mark, is without substance. Section 77, it is true, provides that a person shall be deemed to falsify a trade-mark who either-\n\n(a) without the assent of the proprietor of the trade mark makes that trade mark or a deceptively similar mark; or\n\n(b) falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise.\n\nIf there is assent of the proprietor to the use by the accused of a trade mark which is deceptively similar, there would be no falsi fication or false application of the trade mark: but protest against infringement of the complainants' trade mark cannot be regarded as assent to the use or application of the false trade mark.\n\nThe High Court has on a review of the evidence held that there was no acquiescence by the complainants from which assent may be inferred, and we see no reason to differ from that finding.\n\nThe appeal therefore fails and is dismissed.\n\nAppeal dismissed.\n\n(') I.L.R. 22 Mad. 488.\n\nL/S5-7(a)", "total_entities": 62, "entities": [{"text": "A\n\nSTATE OF U", "label": "RESPONDENT", "start_char": 12, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P", "offset_not_found": false}}, {"text": "c. 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{"document_id": "1966_1_74_80_EN", "year": 1966, "text": "MIS. OM OIL & OILSEEDS EXCHANGE LTD., DELHI v.\n\nTIIEIR WORKMEN\n\nMarch 28, 1966\n\n[ K. N. W ANCllOO, J. C. SHAH A!>'D S. M. SIKRI, JJ. J\n\nIndustrial Law-Retrenchment-Rule of \"first come last oo\".\n\nWhen can be departed frcmi-Empl.oyees properly retrenched-Ccmi pensation payable.\n\nThe respondents (workmen of the appellant) raised on industrial dispute and pleaded before the Labour Court that the appellant's\n\naction in retrenching some of its employees was mala fide, as the appellant did not follow the \"first come, last go\" rule. The appellant justified its action on the ground that the appellant had recorded valid reasons for departing from the rule. The reasons were that, one of the employees retained was the only pers0n capable of looking after the appellant's share work and court work, another was the only typ!st with the appellant, a third was the record keeper who alone knevl where the different types of records were kept, and the other two were peons who were retained as chowkidars because, there was no other person who could do that work. The Labour Court accepted the respondents' contention, ordered the reinstatement of those employees who were affected by the departure from the rule, and directed that thooe employees who were properly retrenched should be paid in additi0n to the retrenchment compensation under s. 25F of the Industrial Disputes Act, l!M7, which had been paid by the r.ppellant 50'1. of their wages as compensation till the date when the award became enforceable.\n\nIn appeal to this Court.\n\nHELD: (i) The Labour Court was in error in inferring mala fl.des merely because the management departed from the rule of \"firgt come, last go,\"\n\nWhere other things are equal, the ordinary industrial rule has to be followed by the employer, but the rule is not immutable. It is for the management to ascertain who, on retrenchment, should be retained in the interests of the business, and the industrial tribunal will not interfere with the decision of the management, unless preferential treatment L' actuated by mala fides.\n\nPreference given to the retained employees on the ground of mere experience may justify an inference of mala tides; but in the present case. the employees retained had, beside experience. special skill. or aptitude In the particular branch of the business of the appellant they were attending to, and the management had retained them because of that skill, or aptitude. [76 E-Fl 79B-E).\n\nS1oadesamitran Ltd. v. Their Workmen, [1960] 3 S.C.R. 144 and J.K. Iron and Steel Company Ltd. v. Its Workmen. [1960} 2 LL.J. 64, referred to.\n\n(ii) Where retrenchment has been properly made and that order has not been set aside, there is no justification for directing oayment oJ compensation to empoyees properly retrenched in addition to the retrenchment compens&tion statutorily payable.\n\n[80 E].\n\n-r'\n\n-+-\n\n,..\n\nOM OIL v.a. WORKl!EN (Shah, J.}LT 76\n\n-A CIVIL APPELLATE JURISDICITON: Civil Appeal No. 131of1966.\n\nAppeal by special 1leave from the Award dated the September 10, 1965 of the Labour Court, Delhi, in I.D. No. 23 of 1965 .\n\nM. C. Setavad, B. P. Maheshwari and M. S. Narasimhan, for the appellant..\n\nMadan Mohan, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nShah, J. The appellant is engaged in carrying on the business of regulating forward trade in groundnut oil and mustard-seed. and is recognised as an Exchange under the provisions of the Forward Contract Act, 1952. On June 1, 1964 the Government of India issued an order prohibiting trading in diverse commodities including groundnut oil and mustard-seed, and in consequence thereof no further business could be carried on through the appellant Exchange. On July 17, 1965 the appellant served notices of retrenchment upon 30 out of its 37 employees and paid thew salary for the period of notice and retrenchment compensuuon under s. 25F of the Industrial Disputes Act 14 of 1947. The workmen then raised an industrial dispute. Conciliation proceedings to solve the dispute having failed, the Delhi Administration referred to the Labour Court the dispute whether retrenchment of the workmen by the appellant was unjustified and illegal. The workmen pleaded that retrenchment \"on the ground of the ban imposed on forward trading in groundnut oil and mustard-seed was mala fide\" and that in retaining seven workmen the appellant did not follow, without any adequate ground, \"the first come last go\" rule, and on that account all the workmen were entitled to be reinstated with full wages from the date of determination of employment and with continuity of service. The appellant denied that in retrenchjng the workmen the management had acted mala fide, or tha.t retrenchment amounted to an unfair labour practice. The appellant further submitted that retrenchment of the workmen was not liable to be challenged, because some junior members of the staff were retained, since the Company had recorded in the resolution its reasons for departing from the rule \"first come, last go'', and had\n\n\"adhered to the principles contained in s. 25F of the Industrial Disputes Act as far as possible\".\n\nAt the hearing of the reference before the Labour Court, Delhi, counsel for the workmen conceded tha.t the appellant was justified in retrenching its employees and that the number of employees required to carry on the work after the imposition of a B ban against the business of the appellant could not exceed the number retained by the appellant. Counsel however contended that since the appellant fai!ed in effecting retrenchment of the workmen\n\nSUPREJ{)! COURT REPORTS\n\n[1966] SUPP, 8,0,1'..\n\nto observe the principle of \"first come, last go'.', the order in its entirety was illegal. The Labour Court accepted the contention of the workmen and held that departure from a principle which was part of the law relating to industrial employment rendered the retrenchment of all workmen unjustified and improper and on that account retrenchment of clerks and peons who were affected by the departure from the rule was \"illegal and ma/a fide''.\n\nIn the view of the Labour Court, workmen Nos. 1 to 14 and 16 to 23 in Ext. W-1-the List of Seniority-were so affected. The Labour Court ordered that as the appellant required only four clerks including the Accountant R. N. Seth, the Accountant and three senior clerks Shiv Das Sharma, Kishan Lal Grover and Surinder Singh be retained, and that the senior clerks named be reinstated with full \"back wages\", subject to adjustment of compensation money paid to them against their salary. The Court also directed that clerks Nos. 4 to 14 be paid, in addition to the retrenchment compensation received by them \"50 per cent of the wages as compensation for the period they remained in unempk>yment uptil the date when the award became enforceable\", but they may not be reinstated, and that peons Tara Shanker and Om Prakash be reinstated with full wages and peons Nos. 18 to 23 in Ext. W-1 be paid in addition to the retrenchment compensation, \"50 per cent of the wages they would have been entitled to.\" With special leave, the Company has appealed to this Court.\n\nIt is an accepted principle of industrial Jaw that in ordering retrenchment ordinarily the management should commence with the latest recruit, and progressively retrench employees higher up in the list of seniority. But the rule is not immutable, and for valid reasons may be departed from. It was observed by this Court in Swadesamitran Ltd. v. Their Workmen(') that if a case for retrenchment is made out, it would normally be for the employer to Jecide which of the employees should be retrenched; but there can be no doubt that the ordinary industrial rule of retrenchment is \"first come, last go\", and where other things are equal, this rule has to be followed by the employer in effecting retrenchment.\n\nThe question then is whether in departing from the rule, the management had acted ma/a fide, or that its action amounted to an unfair labour practice. The Tribunal has to determine in each case whether the management has in ordering retrenchment acted fairly and properly and not with any ulterior motive: it cannot assume from mere departure from the rule that the management was actuated by improper motives or that the management had acted in a manner amounting to an unfair labour practice. Nor has the Tribunal authority to sit in appeal over the decision of the management if for valid and justifiable reasons the management has departed from the rule that the senior employees may be retrenched before his junior in employment\n\n~~~~~~~~~~~~~~~\n\n(') [1960] I L.L.J. 6114.\n\n11 •\n\nA -·\n\nOM OIL LTD. V. WORKMEN (Shah, J.) 77\n\nThe management of the appellant has recorded a resolution which sets out the reasons for retention of the employees Ram Lal Sethi, Jagdish Pershad, Kidar Nath Thukral, Om Prakash Juneja, Jai Narain, Budhpal Singh and Laljimal. About Ram Lal Sethi the Company has stated that he was looking \"after the account~\" and income-tax cases of the Company and he was the only Accountant in the service of the Company and the senior-most employee in the Accounts Section. The Labour Court has upheld his retention, and nothing more need be said about him.\n\nJ agdish Pershad was, it was stated, looking \"after the share work, collection of building rent and court work and the realisation of rents\" and that he was \"in charge of the share work for the last many years\".\n\nThe Labour Court was of the view that a clerk employed in general office duties may be styled as a general assistant, and that the posts of clerks are interchangeable and since clerks are not trained to handle any particular kind of work, the reasons given by the management for retaining this and other clerks cannot be accepted. However there was not in the employment of the Company any other clerk who could competently handle \"share work\" and attend to \"court work\". Clerical work ordinarily does not require specialisation and clerks may be transferred from one department to another without detriment to the business. But if a clerk has been working in a branch of the business and he is shown to possess special aptitude for a particular duty, performance of which requires application and experience, the management may in the interests of the business while retrenching others retain him even if he is junior to others. The rule of \"first come, fast go\" is intended to secure an equitable trea, trnent to the employees when, having regard to the exigencies of the business, it is necessary to retrench some employees. But in the application of the rule the interests of the business cannot be overlooked. The rule has to be applied where other things are equal. The management of the business must act fairly to the employees, where however the management bona fide retains staff possessing special aptitude in the interests of the business, it cannot be assumed to have acted unfairly merely because the rule \"first come, last go\" is 'not observed. If retention of a clerical employee is regarded as necessary by the management in the interests of the business, that opinion cannot be discarded merely on the ground that the clerk concerned is not the seniormost. There is nothing on the record to show that there was, among the senior employees, a clerk possessing the aptitude which Jagdish Pershad possessed. Kidar Nath Thakural was doing \"typing work\" and he was retained because he was the only typist with the Company. Our attention has not been invited to any evidence that there were other typists who were senior to him and they had been retrenched. A typist is undoubtedly a clerk in a business concern, but tha, t does not mean that every clerk, unless specially trained, can become a competent typist. Om Prakash Juneja was\n\nSUPREME COURT REPORTS fl 966} SUPP. 8.C, R\n\nretained because he was looking after the records of the Company and was \"fully conversant as to where different type of records\" were \".lying\", and that this employee was doing the work sa.tis\n\nfactorily. A record-keeper's work in a business cannot be perform ed efficiently without special training or long experience. It would be difficult to hold that in retrenching employees, if the management retains an efficient record-keeper in preference to a senior clerk who has no training or experience in record-keeping, the managment acts ma/a fide or improperly, or perpetrates an unfair labour practice.\n\nThe Labour Court was of the view that retention of junior clerks in service could not be sustained on the ground that they had gained experience in a particular branch of clerical work. To accept that ground of preference, observed the Labour Court, was to destroy the rule \"first come, last go\" itself, since clerks are not specially trained to handle only a particular kind of work, and their work is easily convertible and one can replace another without dislocation in the department. For ordinary clerical work this is undoubted1y true, but even among the clerical staff if a degree oft specialisation is necessary for discharging clerical duties efficiently retention of a junior clerk on the ground that the duty performed by him requires experience, and aptitude, will not expose the management to a charge of ma/a fide. or perpetration of an unfair labour practice.\n\nIt was submitted than in J. K. Iron and Steel Company Ltd. v.\n\nIts workmen(') this Court has he'd that in the matter of 1etrench ment of clerical staff. departure from the rule \"first come, last go\" may not be recognised when it is sought to be justified on the ground that the workman retained has experience of a particular branch of the clerical work, and reliance was placed upon the following observations of Subba Rao, J.\n\n\"But if the preferential treatment given to juniors ignores the well recognized principle in the industrial law that the \"first come. last go\" without any acceptable \"or sound reasoning, a tribunal or an adjudicator will be well justified to hold that the action of the management is not bona fide .... In regard to the clerks. what is the ground of preference given by the management? It is said that junior clerks. who were retained, have experience in a particular branch of clerical work. To accept thLq ground of preference without more is to destroy the prin ciple itself. It may be that the clerks entrusted with such works may continu e to do the same work till a readjust ment of the work is made. There is no particular or scientific skill required in one class of work rather than ; n another. Clerks are not specially trained to handle\n\n(') {1\"60) 2 L.L.J. r.4.\n\nA •\n\nJI!\n\nOM OIL LTD. V, WORKMEN (8/tah, J.) 79\n\nA only a particular kind of work. Their work is easio/ con vertible and one can replace another without any dislocation in the department.\"\n\nBut the judgment does not enunciate a different principle. Ordinarily it is for the management to ascertain who on retrenchment should be retained in the interests of the business and the lndustrial Tribunal will not interfere with the decision of the management, unless preferential treatment is actuated by mala fides.\n\nWhere those retrenched and those retained are doing substantially the same kind of work and no special skill or aptitude is required for doing the work which the retained clerk is doing, preference given to the retained clerk on the ground that he has some experience in the branch may justifiably raise an inference of mala fides. Apparently in J.K. Tron and Steel Company's case,(') the work required to be done by the clerks retained needed no special aptitude, and the clerks retrenched could as well do the work which was done by the clerk retained. It was in those circumstances that the Court held that mere experience in a particular branch requiring no special aptitude was not sufficient to justify departure from the rule \"first come, last go\".\n\nIn the present case the four clerks retained had, beside experience, special skill and aptitude in the paricular branch of the business of the appellant they were attending to, and the management had retained them 'because of that skill or aptitude. The Labour Court inferred mala fides merely because the management departed from the rule \"first come, last go\". Whether the management in departing from the rule has acted mala fide, must depend upon the crcumstances of the case : it cannot be inferred merely from departure from the rule.\n\nWe may turn to the cases of the three peons, Jai Narain, Budhpal Singh Laljimal. Retent!ion of Jai Narain has been upheld by the Labour Court and nothing more need be said about him. The other two peons are Budhpal Singh and Laljimal who were working as chowkidars. They are said to be \"the senior-most chowkidars'', and there is no evidence to show that there were in the employment of the Company other persons who could have worked as chowkidars. Peons Budhpal Singh and Laljimal were retained because they were the \"senior-most chowkidars\". Retention of the \"senior-most chowkidars\" would not be interfered with by the Tribunal in the absence of clear proof of ma/a fides.\n\nIt cannot be assumed without more that every peon can do the work of a chowkidar. The management may ordinarily require the chowkidar to possess good physique and ability to maintain watch over the building and its assets. There is no evidence that the two peons Tara Shanker and Om Prakash had ever worked as chowkidars or were suitable for work as chowkidars. The order\n\n(') [1960] 2 L.L.J. 04.\n\n80 BUPllKIUI COURT RF.PORTS\n\n(1966] SUPP. ~.C.11.\n\nof reinstatement of Tara Shanker and Om Prak.ash will stand vacated.\n\nThe second part of the order directing that clerks from Nos. 4 to 14 and peons from Nos. 18 to 23 in the seniority list, shall be entitled in addition to the retrenchment compensation already paid to them 50 per cent of the wages as compensation for the period they remained unemployed is wholly indefensible.\n\nThese employees had been properly retrenched: that was conceded before the Labour Court. It was also conceded that for carrying on the business of the appellant after imposition or the ban by the Central Government, not more than seven employees were required. If the management was entitled to retrench 30 workmen and did so after paying wages for the period of notice and retrenchment compensation, we fail to appreciate the grounds on which an order for payment of 50 per cent of the wages in addition to retrenchment compensation may be made. Retrenchment compensation is paid as solatium for termination of service resulting in unemployment and if that compensation be paid there can be no ground for awarding compensation in addition to statutory retrenchment compensation. If the Industrial Tribunal comes to the conclusion that an order of retrenchment was not properly made and the Tribunal directs reinstatement. an order for payment of remuneration for the period during which the employee remained unemployed, or a part thereof may appropriately be made. That is because the employee who had been retrenched for no fault of his had been improperly kept out of employment, and was prevented from earning his wages. But where retrenchment has been properly made and that order has not been set aside, we are not aware of any principle which may justify an order directing pay. ment of compensation to employees proper.ly retrenched in addi tion to the retrenchment compensation statutorily payable.\n\nThe appeal is therefore allowed and the a.ward made by the Labour Court is substituted by the following award:\n\n\"That retrenchment of the workmen was not unjustified or illegal and the workmen are not entitled to any relief'.\n\nIn the circumstances of the case, there will be no order as to costs.\n\nAppeal allowed.\n\nA ...\n\n• B\n\nIi'", "total_entities": 11, "entities": [{"text": "MIS. OM OIL & OILSEEDS EXCHANGE LTD., DELHI", "label": "PETITIONER", "start_char": 0, "end_char": 43, "source": "metadata", "metadata": {"canonical_name": "M/S. OM OIL & OILSEEDS EXCHANGE LTD., DELHI", "offset_not_found": false}}, {"text": "C. SHAH A!>'D S. M. SIKRI, JJ.", "label": "JUDGE", "start_char": 102, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "S.M. SIKRI", "offset_not_found": false}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 1337, "end_char": 1343, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 1351, "end_char": 1374, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S1", "label": "PROVISION", "start_char": 2447, "end_char": 2449, "source": "regex", "metadata": {"statute": null}}, {"text": "[1960] 3 S.C.R. 144", "label": "CASE_CITATION", "start_char": 2485, "end_char": 2504, "source": "regex", "metadata": {}}, {"text": "Exchange under the provisions of the Forward Contract Act, 1952", "label": "STATUTE", "start_char": 3390, "end_char": 3453, "source": "regex", "metadata": {}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 3870, "end_char": 3876, "source": "regex", "metadata": {"linked_statute_text": "Exchange under the provisions of the Forward Contract Act, 1952", "statute": "Exchange under the provisions of the Forward Contract Act, 1952"}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 3884, "end_char": 3907, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 5068, "end_char": 5074, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 5082, "end_char": 5105, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1966_1_81_91_EN", "year": 1966, "text": "FIRM BANSIDHAR PREMSUKHDAS\n\nSTATE OF RAJASTHAN\n\nMarch 29, 1966\n\n[A. K. SARKAR, C. J. K. SUBBA RAO AND V. RAMASWAMI, JJ.]\n\nAct of State-Contract with former Indian State-Enforceability after merger against successor State. The fonner State of Bharatpur sold some plots for establishing a Mandi, and the appellant was one of the purchasers. Under the terms of the sale, a person trading in the Mandi wouldl get a reduc• tion of 25% in the customs duty payable, if the commodities were imported into or exported out of the State through the Mandi. The Government of Bharatpur and after its merger the Government of the United State of Matsya, and thereafter, the present Rajasthan State (respondent herein) allowed the reduction to the appellant, who was also a trader. In 1951, the respondent revoked the concession. The appellant filed a suit for the recovery of the excess amount of customs duty paid on the basis that there was a valid contractual liability to grant the concession. The suit was dismissed by the High Court on appeal.\n\nIn appeal to this Court, HELD: (i) The appellant's suit must fail because there was no recognition of the contractual ri!>; ht to the succeeding State of Rajasthan.\n\nE The contractual liability of a former State is binding on a succeeding sovereign State on~ if it recognises that contractual liability. The enjoyment of the concession by the appellant after the formation of the Rajasthan State did not show any implied recognition of the contractual liability by the respondent, because, the concession is referable to s. 33 of the Miatsya Customs Ordinance of 1948 under which the concession could be granted and recognised. [85Bi 880-DJ\n\nCase law referred to.\n\n(ii) Even upon the assumption that there was an implied recognition by the respondent of the contractual liability, the suit must fail, for the contractual liability mu!it be taken to have been superseded by the enactment of the Rajasthan (Regulation of Customs Duties) Ordinance No. 16 of 1949. [88 E-F].\n\nParliament and State Legislatures are, subject to any prohibition in the Constitution, competent to enact laws altering the terms and conditions of a previous contract or of a grant under which the liability of the Government of India or of the State Governments arises. There is nothing in the provisions of the Ordinance which preserves the alleged contractual rights of the appellant, and in the absence of any express language in the Ordinance preserving such rights. it must be held that the general law enacted in the Ordinance supersedes the previous contract of the appellant with the State of Bharatpur. [90 D-F]\n\nMaharaj Umeg Singh v. The State of Bombay. [1955] 2 S.C.R. 164 and Maharaja Shree Umaid Mills Ltd. v. Union of India, [19631 Supp. 2 S.C.R. 515, f0llowed.\n\nSUPRBME COURT REPORTS\n\n[1966] SUPP. S.C.B.\n\n(.iii) The levy of Customs duty is in conformity with Art. 306 of A the Constitution. (91 DJ •\n\nQVIL APPELLATE JURISDICllON: Civil Appeal No. 203 of 1964.\n\nAppeal from the judgment and decree dated January 29, 1963 B of the Rajasthan High Court in Civil Regular First Appeal No. 29 of 1956.\n\nSarjoo Prasad and T. Satyanarayana, for appellant.\n\nR. Ganapapathy Iyer and B.R.G.K. Achar, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nRamuwami, J. This appeal is brought by certificate against the judgment and decree of the Rajasthan High Court dated January 29, 1963.\n\nThe appellant firm Bansidhar Premsukhdas brought a suit D which is the subject-matter of this appeal against the State of Rajasthan on March 31, 1953 for the recovery of Rs. 86,646 I 3 /- in the Court of District Judge. Bharatpur. The case of the appellant was that the former State of Bharatpur with a view to increase the trade and commerce in the said State decided to establish a Mandi at Bharatpur where at the material time a T.B. Hospital was located. lt decided to sell plots for certain fixed amounts and, therefore, •\n\nissued a notification on May 18, 1946 offering the plots by public advertisement for sale on certain terms and conditions. The notifification-Ex. 4-was published in Bharatpur Rajpatra and one of r'- the concessions proposed to be granted was embodied in cl. 3 of the notification which stated:\n\n\"If any commodity is imported from outside into the Mandi and is sold for consumption within the State, or if any commodity received in the Mandi from within the State and is exported in both cases, a reduction of 25 % in the customs duty prevailing at the time of the import and export of such commodities will be allowed. This concession shall not be available in case of vegetable Ghee.\"\n\nThe notification contained other terms and conditions relating to auction sale such as the prices for different kinds of plots available and the maximum number of plots which a person could purchase.\n\nA committee for supervising the auction was also formed and the B noiification laid down the procedure for the sale of plots and certain other conditions such as deposit of one-fourth sale money at the\n\ntime of auction etc. The appe'lant purchased plots Nos. 8 and 9 for Rs. 4,600 at a public auction and two sale deeds (sanad nilam) were issued to the appellant on October 10, 1946. The Government of Bharatpur and after its merger, the Government of United State of Matsya and thereafter the present Rajasthan State carried out the promise contained in cl. 3 of the Bharatpur notification and allowed reduction of 25 per cent in the customs duty, but on January 16, 1951 the Rajasthan Government issued notification No. F.4(18) SR/ 49 which reads as follows:\n\n\"Now therefore Government of Rajasthan is hereby pleased to direct that with an immediate effect all free Mandies and Zones including the area comprising the former Kishangarh State and the Bhim District of the former Rajasthan State shall be abolished and that in consequence all the Customs concession hitherto enjoyed by or applicable to these Mandies or Zones shall cease to have force and duties of customs shall be levied and\n\ncollected in such Mandies or Zones in accordance with the revised tariff amended from time to time.\"\n\nThe appellant and other traders thereupon made representation to the Rajasthan Government on January 29, 1951 and pending the disposal of the representation the Customs authorities agreed to keep the amount of 25 per cent by way of 'Amanat'. The State of E.· Rajasthan ultimately decided on May 25, 1951 that the reduction in the customs duty could not be conceded. On March 31, 1953 the appellant filed the present suit in' the Court of the District Judge of Bharatpur for the recovery of the excess amount of customs duty paid to the Rajasthan Government.\n\nThe main defence of the State Government was that item F No. 3 of the Bharatpur notification was a matter of concession! and could not be claimed as of right and the Rajasthan State as successor State was not bound by the contracts of the former State and the applicability of the concessions had also become impracticable on the formation of Rajasthan. The District Judge of Bharatpur, by his judgment dated March 31, 1956, held that item No. 3 of Bharatpur notification was a term of sale between the parties and G the Rajasthan State was bound by it and the succeeding States have recognised the concessions granted to the appellant and therefore the suit of the appellant should be decreed. The State of Rajasthan took the matter in appeal to the Rajasthan High Court which allowed the appeal and dismissed the suit holding that item No. 3 of the Bharatpur notification was not a part of the contract of sale, and H even if it was held to be a part of the contract, the successor State of Rajasthan did not recognise it and was not, therefore, bound by it:\n\nRUPREME COURT REPORTS\n\n[1966] SUPP. B.C.R.\n\nThe first question involved in this appeal is whether cl. 3 of the A Bharatpur notification-Ex. 4, was a term of the contract of sale between the appellant and the State of Bharatpur. It was argued on behalf of the appellant that Ex. 4 which is the notification dated May 18, 1946 regarding the sale of plots by the Bharatpur State was an offer of purchase of plots on terms and conditions made in that B notification. It was contended that the offer was made to the public as a whole and after it was accepted by the appellant a valid contract came into existence. The opposite view point was presented on behalf of the respondent.\n\nIt was submitted that the concession granted in cl. 3 did not relate to, nor did it form a part of the contract of sale of the plots of the Mandi. It was pointed out that the concession of 25 per cent reduction in customs duty will not merely enure to the benefit of the purchaser of the plots but also cnure to the benefit of the person trading in the shop. The benefits were generally offered for trade and business in the Mandi and cannot be considered as an offer of benefit only to the prospective purchasers of the plots. The commodities for which the concession was granted might be in the hands of purchasers and builders of plots, their tenants and licensees or other dealers. It was therefore not possible to hold that the State Government offered the tax concessions as a reciprocal promise in connection with the contracts of sale with the appellant and the latter had no justification for treating the benefits offered as consideration in return for the purchase of the plots and the construction of shop buildings. It is also pointed\n\nout by learned Counsel on behalf of the respondent that there are\n\ncertain conditions in the Bharatpur notification-Ex. 4, which can- • not, in the nature of things. be treated as terms of the sale. Reference was made, in this connection, to els. 5, 6, 7, IO and 11. In our opinion, there is much force in the argument advanced on behalf of the respondent but it is not necessary to express any concluded opinion on this aspect of the case. We shall assume in favour of the appellant that cl. 3 of the Bharatpur notification, Ex. 4, was a term r of the contract of sale of plots 8 and 9 of the Mandi. Even upon that assumption the suit of the appellant must fail, for we shall presently show that there was no recognition of the contractual right by the succeeding State of Rajasthan. and in the absence of such recognition the contract between the former State of Bharatpur and the appellant cannot be legally enforced.\n\nWe shall proceed, therefore, to consider the next question, G namely, whether the term of the contract was binding upon the successor State of Rajasthan on the assumption that cl. 3 of the Bharatpur notification. Ex. 4, was an integral term of the contract between the appellant and the Government of Bharatpur State.\n\nIt is not correct to say as a matter of law that the successor H State automatically inherits the rights and obligations of the merged State. There is no question of suborgation-the successor State is not\n\n-<' . r\n\n' -f..\n\n-¥.\n\nsubrogated ipso jure to the contracts with the merged State. The true legal position is that the contract of the predecessor State terminates with the change of sovereignty unless the contract is ratified by the succeeding sovereign State. It is now well-established in law that the contractual liability of a former State is binding on a B succeeding sovereign State only if it recognises that contractual lia- . bility. The season is that the taking over of sovereign powers by a\n\nState in respect of territory which was not till then a part 0£ it is an \"'act of State\" and the municipal courts recognised by the new sovereign. have the power and jurisdiction to investigate and ascertain only such rights as the new sovereign has chosen to recognise\n\nor acknowledge; and such recognition may be express or may be implied from circumstances. In other words, accession of one State to another is an \"act of State\"' and the subjects of the former State may claim protection of only such rights as the new sovereign recognises as enforceable by the subjects of the former State in his municipal courts. In The Secretary of State in Council of India v.\n\nKamachee Boye Saheba(') the jurisdiction of the courts in India to adjudicate upon the validity of the seizure by the East India Company of the territory of Rajah of Tanjore as an escheat, on the ground that the dignity of the Raj was extinct for want of a male heir, and that the property of the late Rajah lapsed to the British Government, fell to be determined. The Judicial Committee held that as the seizure was made by the British Government, acting as a sovereign power, through its delegate, the East India, Company, it was an act of State and the Municipal Court had no jurisliiction\n\nto inquire into the propriety of the action. At page 529 of the Report Lord Kingsdown observed:\n\n\"The transactions of independent States between each other are governed by other laws than those which Municipal Courts administer: Such Courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make.\"\n\nIn another case-Vajesingji Joravarsingji v. Secretary of State for India in Council(')-the Judicial Committee observed as follows:\n\n\" ...... when a territory is acquired by a sovereign State for the first time that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognized ruler. In all cases the result is the same. Any inhabitant pf the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recosnised. Such rights as he had under the rule of precedes-\n\n(') Moore's LA. 476.\n\n(') 61 LA. 367.\n\n[1966) SUPP. S.C.R.\n\nsors avail him nothing. Nay more even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal courts. The right to enforce remains only with the high contracting parties.\"\n\nB In Secretary of State v. Sardar Rustom Khan and Others(') a question arose whether the rights of a grantee of certain proprietary rights in lands from the then Khan of Kalal, ceased to be enforceable since the agreement between the Khan and the Agent to the Governor-General in Baluchistan under which the Khan had granted to the British Government a perpetual lease of a part of the Kalal territory, at a quit rent, and had ceded in perpetuity with 0 full and exclusive revenue civil and criminal jurisdiction and all other forms of administration.\n\nIn delivering the opinion of the Judicial Committee, Lord Atkin observed as follows:\n\n\"In this case the Government of India had the right to recognise or not recognise the existing titles to land.\n\nIn the case of the lands in suit they decided not to recognize them, and it follows that the plaintiffs have no recourse against the Government in the Municipal Courts.\"\n\nThe principle that cession of territory by one State to another is\n\nan act of State and the subjects of the former State may enforce only those rights which the new sovereign recognises has been iCte1'fed by this Court in MI s. Dalmia Dadri Cement Co. Ltd. v.\n\nB The Commissioner of Income-tax(').\n\nThe State of Saurashtra v.\n\nJamadar Mohamat Abdulla and others('). Maharaja Shree Umaid\n\nMills Ltd. v. Union of India ('), and State oi Gujarat\n\nv. Vora Fiddali Badruddin Mithibarwa/a(').\n\nOn behalf of the appellant it was contended that there was an implied recognition by the Rajasthan State of the contractual liability since the exemptions were continued upto January 13, J !951 and were revoked with effect from that date by the notification No. F.4(18JSR/49. We arc unable to accept this argument as correct. Before the process of integration began, each Covenanting State was a separate geographical unit for customs purposes and had its own customs laws and barrier. After the formation of the Matsya Union on March 18, 1948 there was a promulgation of G the Matsya Customs Ordinance by the Raj Pramukh on September 21, 1948. The United State of Rajasthan was constituted on May JS, 1949 when there was merger of Matsya Union in the United State of Rajasthan. On August 9, 1949 the Raj Pramukh promulgated the Rajasthan (Regulation of Customs Duties) Ordinance\n\n(') 68 I.A. 100.\n\n('I [1002] 3 8.G.R. 970.\n\nl'I [1964] 6 A.C.R. •61.\n\nI') [1050) 8.C.I\\. 729. r'I 11963] Supp. 2 ~.C.R. 51,.\n\n--+\n\nFIRM BANSIDHAH v. HAJASTHAN (Ramaswami, J.) 87\n\nNo. 16 of 1949. Section 3 of this Ordinance abolished duties on the transport of goods within the territory of Rajasthan. Section 3 reads as follows :\n\n\"3. No duty leviable on internal transport-With effect from such date as may be notified by the Government in the Rajasthan Gazette, no duties of Customs shall be levied and collected in respect of any goods transported within Rajasthan, notwithstanding anything to the contrary in any law, or rule, instrument of usage having the force of law, in any part of Rajasthan; and any such law, rule instrument or usage shall be deemed to be repealed to that extent:\n\nProvided that the Government may, by notification in the Rajasthan Gazette-(a) Impose a duty of customs on the transport of goods from or to any part of Rajasthan to or from such other part thereof at such rate or rates and with effect from such date as may be specified in the notification, or (b) direct that, in respect of the transport of goods of such description and from or to such part of Ra jasthan as may be specified in the notification, a sum of money equal to the amount of the duty leviable on the export on such goods shall be deposited with the appropriate Customs Officer of the place from where the goods are intended to be transported.\"\n\nSection 4 is the charging section with regard to import and export duties. Section 4(1) states:\n\n\"4. Duties on export and import: (])Until a revised tariff is introduced under sub-section (2) Customs duties on the export or on the import of goods shall be levied and collected in accordance with the tariff for the time being in force in the place from or into which goods leviable with a duty of Customs have been exported or imported, as the case may be.\"\n\nSub-section (2) of s. 4 provides:\n\n\"The Government may, by notification in the Rajasthan Gazette, issue a revised tariff specifying the goods G or class of goods in respect of which, and the rate at which, duties of Customs shall be levied and collected with effect from such date as may be specified in the notification on the export or on the import of such goods or class of goods.\"\n\nH Eventually on August 15, 1949 a uniform revised tariff was made applicable to the whole of Rajasthan. Section 6 provided that the existing law in force of the covenanting States shall regulate the\n\nL/S5SCGI-S\n\n88 SUPRE!dE COURT REPORTS [1066] SUPP. s.c.R.\n\ncollection of such duties and other ancillary duties in relation A thereto, unless altered. modified or repealed by a competent legislative authority of Rajasthan and thus saved existing law with regard to the procedure and ancillary matters. It is manifest on examination of the provisions of this Ordinance that there was a repeal of all Customs laws C1f the Covenanting States in so far as they provided for the levy and collection of duties in the parti- B cular territorial limits of the Covenanting States and the Ordinance introduced a new law imposing duty on export and import into Rajasthan State as a whole. Further, after the issue of a revised tariff the old tariffs under the various laws of the Covenanting States •tlso stood repealed. There is no express provision in the Ordinance saving the previous contractual rights with regard to C customs duty. In the absence of any such express provision it must be held that all existing contracts were repudiated and cancelled. The enjoyment of the concession by the appellant after the formation of the Rajasthan State is clearly referable to the law under which customs concessions could be granted and recognised.\n\nThis is borne out by the notification dated January 16. 1951 which appeared in the Rajasthan Raj Patra, which itself refers to ss. 10 D and 33 of the Matsya Customs Ordin:mce No. 14 of 1948 by which customs concessions were revoked. We are, therefore, of the opinion that the High Court has rightly taken the view, upon an analysis of the evidence adduced in the case, that there was no recognition of the contractual liability by the succeeding State of Rajasthan.\n\nWe shall, however. assume in favour of the appellant that E the State of Rajasthan recognised the contractual right of the appellant with regard to the exemption of tax. Even upon that assumption the suit of the appellant must fail, for the contractual liability must be taken to have been superseded by the enactment of the RajaSthan (Regulation of Customs Duties) Ordinance No. 16 of 1949 promulgated by the Raj Pramukh on August 9,\n\n1949. Before we deal with this question it is desirable to indicate p the constitutional developments which resulted in the inclusion of the former Bharatpur State into the Part B State of Rajasthan. which came into existence on January 26. 1950.\n\nThe former Dharatpur State remained a separate entity till March 18, 1948, though it had acceded to the Dominion of India after August 15, 1947 with respect to three subjects, namely. communications. G defence and external affairs. In 1948. however, the process of merger in Rajasthan began and the first merger that took place was of the former States of Alwar, Bharatpur. Dholpur and Karauli. which formed the Matsya Union as from March 18,\n\n1948 by a Covenant entered on February 28. 1948.\n\nAfter the formation of the Matsya Union the Raj Pramukh H promulgated the Matsya Customs Ordinance 1948 on September 21, 1948. Section 2 of 1ha1 Ordinance repealecl the levy of\n\ncustoms duty in force in all the Covenanting States and applied the provisions of the new Ordinance to the whole of the United State of Matsya. Section 10 of the Ordinance provided for the charge of customs duty on goods or class of goods to be notified in the State Gazette from time to time. Section 33 of the Ordinance similarly granted power to the State Government to exempt any goods or class of goods imported or exported from the United State of Matsya from payment of customs duty leviable thereon.\n\nThen came another union of certain other Rulers in Rajasthan in March 1948 by which these Rulers united under the Ruler of Udaipur to form what later came to be known as the Former State of Rajasthan. In March 1949, the United State of Rajasthan was formed by Covenant entered into by fourteen Rulers of Rajasthan, including those who had formed the Former State of Rajasthan, and this State came into existence from April 7. 1949. There was a merger of the Matsya Union in the State of Rajasthan on May 15, 1949 and thus the former Bharatpur State came to be included in the United State of Rajasthan through the Matsya Union. As we have already stated, the Raj Pramukh promulgated the Rajasthan (Regulation of Customs Duties) Ordinance No. 16 of 1949 on August 9, 1949. It is well-established that Parliament or State Legislatures are competent to enact a law altering the terms and conditions of a previous contract or of a grant under which the liability of the Government of India or of the State Governments arises. The legislative competence of Parliament or of the State Legislatures can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the Legislature is endowed with for legislating on the topics enumerated in the relevant Lists.\n\nThis view is borne out by the decision of the Judicial Committee in Thakur Jagannath Baksh Singh v. The United Provinces(') in which a similar complaint was made by the taluqdars of Oudh against the United Provinces Tenancy Act (U.P. Act 17 of 1939).\n\nTt was held by the Judicial Committee that the Crown cannot deprive itself of its legislative authority by the mere fact that in the exercise of its prerogative it makes a grant of land within the territory over which such legislative authority exists, and no court can annul the enactment of a legislative body acting within the legitimate scope of its sovereign competence. If therefore, it be found that the subject-matter of a Crown grant is within the competence of a Provincial legislature nothing can prevent that legislature from legislating about it unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally.\n\nAccordingly, in the absence of any such express prohibition, the\n\n(') [1946] F.O.R. III.]\n\nJ:,/85SOI~(a)\n\n90 SUPREME COL'JtT REPORTS\n\n[!966) SUPP. S.C.R.\n\nUnited Provinces Tenancy Act. 1939. which in consolidating and A amending the law relating to agricultural tenancies and other matters connected therewith in Agra and Oudh. dealt with matters within the exclusive legislative competence of the Provincial legislature under item 21 of List II of the 7th Sch. to the Government of India Act. 1935. was intra vire.1 the Provincial legislature notwithstanding that admittedly some of its provisions cut down the absolute rights claimed by the appellant taluqdar to be comprised in the grant of his estate as evidenced hy the sanad granted by the Crown to his predecessor. The same principle has been reiterated by this Court in Maharaj Umeg Singh and others v. The State of Bombay and others('). It was pointed out that in view of Art. 246\n\nof the Constitution. no curtailment of legislative competence can he C spelt out of the terms of clause 5 of the Letters of Guarantee given by the Dominion Government to the Rulers of \"States'\" subsequent to the agreements of Merger. which guaranteed. inter alia, the continuance of Jagirs in the merged 'States\". This principle also unde•lies the recent decision of this Court in Maharaja Shree Umaid Mills Ltd. v. Union of India(') in which it was pointed out that there is nothing in Art. 295 of the Constitution which prohibits D Parliament from enacting a law altering the terms and conditions of a contract or of a grant under which the liability of the Government of India arises. It was further held that there was nothing in Art. 295 prohibiting Parliament from enacting a law as to excise duty or income-tax in territories which became Part B States. and which were fonnerly Indian States. and such a prohibition cannot be read into Art. 295 by virtue of some contract that might have been made by the then Ruler of an Indian State with any person.\n\nAs we have already indicated. there is nothing in the provisions of the Rajasthan (Regulation of Customs Duties) Ordinance No. 16 of 1949 which preserves the alleged contractual ri)!hts of the appellant, and in the absence of any express language in the Ordinance preserving such alleged contractual rights. it must he held that the general law enacted in the Ordinance supersedes the previous contract of the appellant with the State of Rharatpur.\n\nLastly. it was argued on behalf of the appellant that the notification dated January 16, 1951 revoking the tax concessions was\n\nin \\'iolation of Art. 306 of the Constitution which provides as follows: ' ·; rr\n\n\"Notwithstanding anything in the foregoing provisions of this Part or in any other provisions of this Constitution. any State specified in Part R of the First Schedule which before the commencement of this Constitution was levying any tax or duty on the import of goods into the State from other States or on the export of goods\n\n{t) [19.;!IJ 2 S.C.It 161. (_2J i 1!163] upp. 2 S.C.lt. 515.\n\n_.,< -\n\n--; l,\n\nriRM BANS!DHAR V. RMASTilAN (Ramaswami, J.) 91\n\nfrom the State to other States may, if an agreement in that behalf has been entered into between the Government of India and the Government of that State, continue to levy and collect such tax or duty subject to the terms of such agreement and for such period not exceeding ten years from the cornmencement of this Constitution as may be specified in the agreement.\n\n\" ...... : .............................. .\n\nThe argument is based on the assumption that the appellant was enjoying concessions under s. 40 of the Customs Circular No. 15 and continued to enjoy the concessions in the State of Matsya under s. 34 of the Matsya Customs Ordinance No. 14 of 1948, and subsequently in the State of Rajasthan under s. 6 of the Rajasthan (Regulation of Customs Duties) Ordinance No. 16 of 1949. It is the admitted position that the agreement entered between the Government of India and the United State of Rajasthan on February 25,\n\n1950 incorporated certain recommendations of the Federal Finance Enquiry Committee Report 1948-49. The agreement having been executed and the condition under Art. 306 having been satisfied in this case, the continuance of the customs duty is in conformity with the provisions of this Article. In any case, the claim of the appellant is not basd on any provision of Bharatpur law but upon a contractual liability of Bharatpur State and to a case of th; s description the provisions of Art. 306 cannot be attracted.\n\nFor the reasons expressed, we hold that the judgment of the High Court is right and this appeal must be dismissed with costs.\n\nAppeal dismissed .", "total_entities": 40, "entities": [{"text": "FIRM BANSIDHAR PREMSUKHDAS", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "FIRM BANSIDHAR PREMSUKHDAS", "offset_not_found": false}}, {"text": "STATE OF RAJASTHAN", "label": "RESPONDENT", "start_char": 28, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "STATE OF RAJASTHAN", "offset_not_found": false}}, {"text": "A. K. SARKAR", "label": "JUDGE", "start_char": 65, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "A.K. SARKAR*", "offset_not_found": false}}, {"text": "K. 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{"document_id": "1966_1_92_103_EN", "year": 1966, "text": "ELLERMAN & BUCKNALL STEAMSHIP CO. LID.\n\nSHA MISRIMAL BllERAJEE\n\nMarch 29, 1966\n\nIK. SunnA RAO A1'D V. RAMASWAMI, JJ.J\n\nMercantile Law-Deceit-Shipowner had knowledge matenals ordered to be supplied in new drums-giving 'clean bill of lading'- though packing in old drum-taking indemnit11 bond-whether liable for deceit for loss caused to buyer-\"Letters of Credit\", \"bil! of lading\", \"clean bi!l of lading\", considered.\n\nThe respondent entered into two contracts with the B Company C\n\n(sellers) of New York to purchase certain chemicals and in pursuance of the contracLo; placed three indents for the material in December 1950 and January 1951. The indents specified that the materials were to be packed in new fibre drums.\n\nThe respondent thereafter opened and confirmed irrevocable letters of credit to be negotiated by his bankers' agents in New York.\n\nThese agents were authorised to make payment to the sellers against \"clean on board\" bills of lading.\n\nWhen the sellers shipped the goods by one of the appellant's vessels. the Mate's receipt given to the sellers on the arrival of the goods at the wharf described them as bemg packed in re-used drums. The seilers then approached the appe!knt with a request to grant them a clean bill of lading as <1gainst the reference in the Mate's receipt to re-used drums. Upon the sellers furnishing the appellant with an indemnity bond against any claims etc., the appcilant issued them a clean bzll of lading which described the drums simpl)· as drums.\n\nThe sellers then negotiated the bills of lading against the letters of c1edit and obtained payment of the contract price. When the shipment arrived in India it was discovered that the drums contained on!y coal dust and not the chemicals ordered.\n\nThe respondent took appropriate proceedings aAainst the sellers in the American Courts and rerovcre<l part of his loss. H(' then instituted the present suit against the bank and the appellant. The Trial Court dismissed the claim against the appellant but decreed the suit in part against the bank. Hov .. cver, the IIigh Court, on appeal, held that the appellant, with the knowledge that the bills of lading \\l,:ould be negotiated, gave at the request of the seller, clean bills of lading though only unclean bills of lading should have been given.\n\nIt therefore held the ship-owners responsible for the loss caused to the respondents and allowed a oO!Xlrate appeal filed by the bank.\n\nOn appeal to this Court it ''\"\"' \"or.tended on behalf of the rppcl1ants that \\vhilc rcspondf'nt had based his cause of action on a breach of contract, the High Court had given relief founded 0n deceit. that under common law or contract the appellant had no dutv or obligation to make a statement in !ht.· bills of lading that the drums \\\\ere 0ld ones; and that the bills of lading were c}{'an onl'S,\n\nfor the oldnes.c; or ne\\vncss of drums hGd no real impart on the contents thereof. as both \\\\•ere equally suitable containers for the H materials to be supplied.\n\n-+-\n\n_,,._\n\n, A.\n\nELLERMAN & BuCKNALL W'D. v. MISRIMAL (Subba Rao, J.) 93\n\nHELD: (i) There was no merit in the contentiOn that the High Court gave relief founded on deceit whereas the respondents cause of action was based on a breach of contract. It was clear from the pleadings that a claim on the basis of. misrepreentation was made in the plaint, denied by the appellant m the written statement and argued in the Courts below. [96 G-H]\n\n(ii) The High Court was rfght in holding that the appellant was liable in damages for the Joss incurred by the respondent.\n\nIt was one of the terms of the contract between the seller and the buyer that the goods should be placed in new fibre drums. The standard of good order and condition of the packages was agreed upon by the parties to the contract. The shipowners knew that condition as disclosed by the Mate's receipt, If the drums had been mentioned as old in the bill of lading, that bill would not have been a C clean bill. Though the apparent condition of the drums was old, the shipowners made an assertion that they were not old drums, i.e., they gave a clean bill. This representation was obviously intended, in collusion with the sellers, to enable them to operate upon the credit with the Bank. This collusion was also apparent ; from the indemnity bond they took from the sellers to guard themselves against the consequences of the said representation. All the elements of deceit were therefore present. [102 D-F]\n\nD Case law reviewed.\n\nC!v11 APPELLATE JuRJSDICTJON: Civil Appeal No. 274 of 1964.\n\nAppeal from the judgment and decree dated November 3, 1960 of the Madras High Court in C.C.C. Appeal No. 61 of 1957.\n\nA. K. Sen, V. BhagQf and D. N. Gupta, for the appellant.\n\nE S. T. Desai, Kesaw/a/ and R. Ganapathy Iyer, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nSubba Rao, J. The appellant, Ellerman Bucknall Steamshi; i Company Ltd., hereinafter called the shipowners, arc a limited liability company incorporated under the law in the United Kingdom F carrying on business as common carriers by sea. They own a ship named \"CITY OF LUCKNOW\". Messrs. Best & Co., Ltd., having their office at Madras, arc the local agents of the shipowners.\n\nSha Misrimal Bhcrajee, the respondent herein, here-in-after called the buyer, entered into two contracts with the British Mercantile Company Limited, New York, herein-after called the seller, for the purchase of Fresh Monsanto Polystyrene Injection Moulding Power (not reground) in granuclcs manufactured by Monsanto Chemical of New York. In respect of the first contract, the purchaser placed two indents dated December 26, 1950, and December 27, 1950, for the said stuff of value of Rs. 13,500/- and Rs. 6,750 Irespectively. The buyer entered into a second contract with the seller for the purchase of 24 drums of the same material of the value of Rs. 16,000/- under an indent dated January 23, 1951. In respect of the first contract and indents the\n\nSUPREM& COURT REPORTS [!966J SUPP. s.c.ll.\n\nbuyer opened and confirmed an irrevocable Letter cf Credit No.\n\nA 4748 dated December 28, 1950. for U.S. $4535 plus war risk with the Eastern Bank Limited. In regard to the second contract he opened another irrevocable Letter of Credit No. 5012 dated January 31, 1951 for U.S. 53,330. As the said Bank had no branch of its own at New York. it arranged with the Marine Midland Trust Company of New York for payment of the bills that might be presented by the seller in New York. Pursuant to the said contracts, the seller deliwrcd to the shipowners certain consignments in reused fibre drums. The bills of lading issued by the shipowners described the drums simply as drums. After taking a letter of indemnity to cover against any loss, the shipowners issued clean bills of lading. The seller negotiate<.! the bills of lading with the Marine Midland Trust Company, New York and obtained payment of U.S. $6,998.75 under the letters of credit.\n\nThereafter, the bills of lading were forwarded to the Eastern Ban\" Limited, Madras, and the buyer paid to the said Bank a sum of Rs. 33,012-5-9 against the said letters of credit. When the shipment arrived it was discovered that the goods sought to be delivered did\n\nnot answer the description given in the documents. Indeed, the D drums contained only coal dust and factory shavings. 1 he buyer took appropriate proceedings ag•inst the seller in the American courts and realized a sum of Rs. 13.604-9-0. Thereafter. he instituted the present suit in the City Civil Court, Madras, for the recovery of a sum of Rs. 23.760-15-6 against the Bank as well as thcshipowners. To that suit the Bank was made the lst defendant and the shipowners, the 2nd dekndant. Broadly stated, the basis of the claim against the Bank was that, though under the letters of credit the Clank had the authority to pay only against dean bills of lading. it paid against unclean bills of lading. The cause of action against the shipowners was that they made a misrepresentation that the bills of lading were clean whereas in fact they were not so, with the result, acting on that misrepresentation, the agent of the Bank paid against the said bills of lading which it would not have done had it known the real facts.\n\nThe learned City Civil Judge held that the bills of lading were clean ones but m respect of one nf the letters of credit the Bank should not have accepted the shipping documents which related only to a part of the goods contracted for. On that finding the learned Judge held that the Bank was liable to refund the amount paid only under one of the letters of credit. As against the shipowners he came to the conclusion that even if the bills were not clean. the Bank would nevertheless have P\"id the amount. as the terms of the letters of credit were comprehensive enough to authoriic such payments. In the result. he dismissed th~ suit against the shipowners but decreed it in part aainst the flank.\n\nThe flnk and the shipmvners preferred appeals to the Hieh Court against the said decree insofar as it went against each of them.\n\nELLERMAN & lmckNALL LTD. v. llSRJMH (Bubba Rao, J.) 95\n\nThe appeals were heard by a Division Bench of the Madras High Court. The learned J udgcs of the High Court came to the conclusion that the shipowners with the knowledge that the bills of lading would be negotiated gave, at the request of the seller, clean bills of Jading while as a matter of fact only unclean bills of lading should have been given. They further held that the purchaser was damnified, as on the basis of the misrepresentation found in the bills of lading the Bank paid the amount against the shipping documents which it would not have done if it had known that the bills of lading were unclean. In the result, they gave a decree for the entire suit claim against the shipowners. They allowed C.C.C.A. No. 61 of 1957 against the shipowners but dismissed it against the Bank. C.C.C.A. No. 54 of 1957, the appeal filed by the Bank, was allowed. The shipowners have preferred the present appeal against the decree given by the High Court against them.\n\nThe argument of Mr. A. K. Sen, learned counsel for the appellant, may broadly be placed under the following three heads: (1) While the respondent based his cause of action on a breach of contract, the High Court gave the relief founded on deceit; (2) under common law or contract the appellant had no duty or obli gation to make a statement in the bills of lading that the drum9 were old cnes and, therefore, the non-mention of that fact could not have misled the Bank into paying against the shipping docu ments under the letters of credit; and (3) the bills of lading were clean ones, for the oldness or newness of drums had no real impact on the contents thereof, for both, were equally suitable containers of the articles to be supplied.\n\nMr. S. T. Desai. learned counsel for the respondent, while made a faint attempt to sustain the decree of the High Court on the basis of breach of contract, seriously sought to support it on the doctrine of deceit. He argued that there was a fraudulent misrepresentation by the appellant in collusion with the seller to the effect that the bills of lading were clean while in fact they were not and that, acting on that misrepresentation, the Bank, through its agent at New Yark, paid the amount to the seller under the letters of credit against the shipping documents, which it would not have done if such a misrepresentation had not been made. He countered the contentions of the learned counsel for the appellant that the High Court gave a decree on a cause of action different from that on which the plaint was based.\n\nThe first contention turns upon the pleadings as well as on the conduct of the parties during the trial and the appcJI.\n\nA perusal of the plaint discloses that the 2nd defendant was sought to be made liable both in contract and in tort. Paragraph 9 of the plaint reads thus:\n\n\"If the first defendants state that they acted on the terms of the bills of lading and are therefore protected, the plaintiffs\n\nSUPREME COURT REPORTS [1966) surP. s.c.n.\n\nalso charge that in any event the second defendants are liable, for issuing the bills of lading without disclosing the true state of facts and for in, crting statements in the bills of lading which are now admitted to be untrue. The plaintiffs also charge that\n\nthe defendants arc precluded from denying the correctness of the statement in the bills of lading as regards the apparent good order and condition as mentioned in the bills of Jadig. B The plaintiffs charge that the second defendants and the shippers acted collusively with a view to enable if possible the shippers to obtain moneys against goods which were not the goods agreed to be sold and which were not consigned according to the contract. The very fact that the second defendants have obtained an indemnity for issuing the bills of Jading without disclosing the real state of facts would show their consciousness that they were not right in issuing the bills of la.ding in the terms they did and whatever their rights as against the shippers may be on the indemnity, the plaintiffs\n\nare not concerned with the same. but the second defendants are liable to the plaintiffs to make good the loss resulting by reason of a representation acted on by which the plaintiffs have D been damnified \".\n\nThis passage in the plaint contains all the necessary allegations to sustain a claim in tort. It is clear. therefore, that the claim of the buyer against the shipowners was also based upon the misrepre sentation made by the latter in the bills of lading. In the writtenstatement the appellant denied the allegations in para 9 of the plaint and stated that there was no secret arrangement between E them and the seller in regard to the goods or the containers. The shipowners also denied that they inserted any untrue statement in the bills of lading acting in collusion with the seller to enable the latter to obtain money against the bills of lading. Issue 6 framed by the learned City Civil Judge reads:\n\n\"Did the second defendant act bona fide throughout in issuing the bills of Lding and in taking an indemnity from the F shippers?\".\n\nThe judgment of the learned City Civil Judge discloses that the question of misrepre, entation by collusion was argued and the learned Judge held that the Bank W<'s not misled. as under the letters of credit it had to pay the amount against the bills of lading. whether clean or unclean. Before the High Court also the question G of misrepresentation by the shipowners was expressly raised and was accepted by it. We cannot. therefore, agree with the contention of the learned counsel for the appellant that the High Court had made out a new case which was not raised in the plaint: indeed. the claim on the basis of misrepresentation was made in the plaint. denied by the appellant in the written-statement and argued in both H the courls below. There are, therefore, no merits in the first contention.\n\nA •\n\nF •\n\nEtLERMAN & BUCKNALL LTD. v. MISRIMAL (Subba Rao, J.) 97\n\nOn the question of the appellant's liability t? the buyer in contract we are satisfied that there 1s no basis for it. Indeed, learned\n\ncousel for the respondent did not seriously press the point, though he did not give it up altogether.\n\nA bill of lading serves three purposes, viz., (i) it is receipt for the goods shipped containing the terms on which they have been received; (ii) it is evidence of the contract for carriage of goods; and\n\n(iii) it is a document of title for the goods specified therein. The contract of the shipowners in the bill of lading is that they will de· liver the goods at their destination \"in the like good order and condition\" in which they were when shipped. In terms cf the contract the shipowners delivered the goods to the buyer in the drums.\n\nThe consignee incurred damages not because of any defect in the drums but because the seller sent goods different from those he had agreed to sell to him. Therefore, the shipowners were not liable for any damages to the purchaser on the basis of breach of any of the terms of the contract. No further elaboration on this point is called for, as finally this point was not seriously pressed by the learned counsel for the respondent.\n\nNow we shall consider the main point raised in the appeal, namely, the liability of the appellant in tort. Before we advert to the question of law it would be convenient to notice the relevant facts.\n\nExhibit A-1 dated December 26, 1950, the indent placed by the buyer with the seller in respect of Fresh Monsanto Polystyrene Injection Moulding Powder of value of Rs. 13,500/-. The packing was to be in new fibre drums each containing 250 lbs. nett. Exhibit A-2 is another indent dated December 27, 1950, placed by the buyer with the seller. The quantity required thereunder was of the value of Rs. 6,750/- and the packing was to be in new fibre drums each containing 250 lbs. nett. Exhibit A-5 is the third indent dated January 23, 1951, for the same goods worth Rs. 16,500/- with similar terms. The buyer opened two letters of credit, Exs. B-1 and B-2, with the Eastern Bank Limited, Madras, for U.S. $ 7,625. Exhibits B-28 and B-29 arc the letters written by the Eastern Bank Limited, Madras. to the Marine Midland Trust Company, New York, to open letters of credit for payment of the bills that might be presented by the seller.\n\nExhibit B-1 reads:\n\n\"We hereby authorise and request you and/or your Agents and I or Representatives at New York to open a confirmed and irrevocable bank credit in favour of Messrs. British Mercantile Company Limited etc., and to make payment or payments thereunder on our behalf ............ against documents purporting to be invoices, shipping specifications, Bills of Lading and Policies and/or Certificates of Insurance covering Marine and War Risks ............ We agree that this credit is subject to U.S.A. regulations and practice.\"\n\nSUPRE~E COURT ltEPORTS [19GG] SUPP. s.c.11.\n\nExhibit B-2 is also a similar letter of credit. Clause 3 of Ex. 28 A reads:\n\n\"Clean on Roard\" Bills of Lading in complete sets of at least two signed copies to be made out to the order of the Eastern Bank Limited, or to order blank endorsed and marked by the shipping company 'Freight paid'.\" B\n\nExhibit B-29 also contains similar recitals. It will be seen that though the words ''clean on board\" bills of lading arc not found in Ex. B I and B-2, but in the directions given to the Marine Midland Trust Company. New York. the sa:d words are clearly fcund. The following rekvam recitals arc found in a sample of the bills of lading: \"Received in apparent good order and condition from British \\1crcantilc Company, Limited. City of Lucknow, to be transported by the good Vessel City of Lucknow to sail from the Port of New York for the East Indies ....................... ..\n\nTotal 21 packages, said to weigh 9,920 lbs. said to be marked and numbered as below !weight. gauge. measurement, contents. conditions. quality and value unknown, statements of D same herein being made solely on shipper's d'Cclaration and this bill of lading not to be deemed any evidence therecf) to be delivered as provided hereunder lliability as carrier to end without notice) in like good order and condition at Madras ,)r so ne,1r thereto as the essel may safely get unto order of the Merc; mtile Bank of India. Limited, er to his or their Assigns . ............................. \".\n\nThe bill of J;1ding gives the number of packages as 21 drums and under the cclumn \"cbcription of goods\" it states \"Polystyrene Powder\". The lo.fate's receipt given to the seller on the arrival of the goods at the wharf for being carried by S.S. City of Lucknow describes them as being packed in re-used drums. The seller gave an indemnity bo;1d to rhe shipowners and the material part of it r reads:\n\n\"We shall be obliged by your granting us Clean Bills of Lading for the unJermcntirn1ed goods, Mate's receipt being cla used Reused Drumsa nd in consideration of your so doing we undertake to pay on demand all freight and/or General and particular Aver- G age and' or charge, there may be thereon, to indemnify you and e'1ch of you against all claims and for demands which may be made against you or any of you in respect of the undermentioned goods and to hold you harmless from any and all consequences that may arise by your granting such clean B/L\n\nand acting thercnn including losse.s. damages, costs or any H other expenses which you or any of you may sustain or incur by reason of the premises or in any way relating thereto.\"\n\n.') G\n\nELLERMAN & BUCKNALL LTD. v. MTSRIMAL (Hubba Rao, J.) 99\n\nAfter obtaining the said indemnity bond, the shipowners issued the bill of lading wherein instead of \"reused drums\" only \"drums\" was mentioned. It will be seen from the said documents that according to the indents the seller had to pack the goods in new fibre drums, that the Bank opened letters of credit for payment against bills of lading, that the Marine Midland Trust Company of New York, th_e agent of the Eastern Bank Limited, Madras, opened letters of credit whereunder payments could be made only against clean bills of lading, that in the Mate's receipt given to the seller on the arrival of the goods at the wharf for being carried by S.S. City of Lucknow the drums were described as reused drums and that thereafter, after giving indemnity against any loss to the shipowners, in the bill of lading the drums were not described as reused drums but only as drums. The learned City Civil Judge on the said documents gave the following findings:\n\n\"Thus, if the Bills of Lading were unclean certainly the banks would not have paid the money to the shippers. In fact it was for the very purpose of enabling the shippers to obtain monies from the banks that they wanted clean Bills of Lading and were prepared to give letters of indemnity to the shipping company. With such description in the Bills of Lading it is extremely doubtful whether even the under-writers would have insured the goods as required under the letters of credit.\n\nIf the shippers had not produced either clean Bills of Lading or Certificates of Insurance as required under the letters of credit then certainly the shippers could not have realised the money from the bank. Thus the second defendants have certainly helped the shippers in this matter by suppressing the real condition of the goods from the Bills of Lading.\" The High Court, agreeing with that finding, held \"the shipowner with the knowledge that the bills of Jading would be negotiated, gave at the request of the seller clean bills of lading, while as a matter of fact only unclean bills of lading should have been given\".\n\nThe question is whether on the said facts and the findings given by the courts below the purchaser could maintain an action for deceit against the shipowners.\n\n_ \"Deceit is a fals~ statemnt of a fact made by a person knowmgly or recklessly with the mtent that it shall be acted upon by another who does act upon it and thereby suffers damage\"; see \"A Text-book of the Law of Tort\" by Winfield; 5th Edn., at 6. 379. In order to make the shipowners liable for deceit, the first ingredient to be atisfied is that they knowingly issued a clean bill of lading, when It should not have been given. with intent that on that basis payment would be made to the holder of the bill under the letters of credit. In order to come to a correct conclusion whether the ingredients of the definition of \"deceit\" have been satisfied in the present case, it is necessary to know the exact scope of the followmg three terms : \"letters of credit'', \"bill of lading\", and \"clean bill\n\n100 SUPRl'.llE CXll1RT REPORTS\n\n(196Q)\n\nSUPP.\n\nS.C.I\\.\n\nof lading\". The said three expressions are evolved in the law A merchant to facilitate international trade. The origin and import\n\nance of letters of credit in the international commerce has been stated by Denning. L. J .. in Pa via & Co •. A.P.A. v. Thurmann Neilsen(') as follows:\n\n\"The sale of !!OOds across the world is now usually arrang B ed by means of confirmed credits. The buyer requests his banker to open a credit in favour of the seller and in pmsu ance of that request the banker. or his foreign agent. issues a confirmed credit in favour of the seller. This credit is a promise by the banker to pay money to the seller in return for the shipping documents. Then the seller. when he presents the docu ments, gets paid the contract price. The conditions of the credit C must be strictly fulfilled. otherwise the seller would not be entitled to draw on it.\" But when issuing banker has no branch in the relevant country where the beneficiary operates. the services of an intermediary banker may be requisitioned. The intermediary banker may be asked to advise the beneficiary of the credit or may be asked to add his confirmatory undertaking to it. In the latter event the beneficiary D has the promise of both the bankers.\n\nAs letters of credit are issued or opened on conditions on which the request is made. the banker can only negotiate the shipping documents if the conditions are strictly complied with. If, for in stance. the mandate of the buyer is that the banker shall pay on a clean bill of lading. the banker can only honour a clean bill and not an unclean one. When a purchaser specifically directs the banker E to pay against a clean bill of lading, the condition for payment is an obvious one. But, when a credit calls for bills of lading without any qualification, in normal circumstances it means clean bills of lading: see British Im ex Industries Ltd. v. Midland Bank Ltd.(').\n\nA clean bill of lading is defined in Halsbury's Laws of England, 3rd Edn., Vol. 2. at p. 218. as \"one which does not contain any reservation as to the apparent good order and condition cf the goods or the packing\". Carver in his book \"British Shipping Laws\".\n\nVol. 2. Part 1. in para. 82. explains the expression \"good order and condition\" thus:\n\n\"The general statement in the bill of lading that the goods have been shipped \"in good order and condition\" amount' (if it is unqualified) to an admission by the shipowner that. so far as he and his agents had the opportunity of judging. the goods were so shipped. If there is no clause or notation in the bill of lading modif)ng or qualifying the statement that the goods were \"shipped in good order and condition\" the bill is known as a clean bill of lading.\"\n\nDecisions have held that the \"condition\" refers to external and ap- H parent condition, and quality, to some thing which is usually not\n\n( 1) [196212 Q.B. 84, Rt 88. (') L.I\\. [IU\"8] 1Q.B.642, at f>l!I.\n\n+-'\n\nELLERMAN & BUCKNALL LTD. v MISRIMAL (Subba Rao, J.)\n\nIOI\n\napparent at all events to an unskilled person: see Compania Navi• era Vasconzada v. Churchill & Sim('). The words like \"quality and measure unknown\" found in Compania Naviera Vasconzada v.\n\nChurchil & Sim(') \"weght, contents and value unknown\" in The\n\nPeter der Grosse('); \"weight, quality, condition and measure unknown\" in The Tromp(\") were held to be not qualifying words. In The Restitution Steamship Co., Ltd., v. Sir John Pirie and Co.(') it was held \"if you insert in the margin of a bill of lading weights, quantities, or anything that is not contained in the bill of lading\n\nitself, that is not a clean bill of lading\". If such words found a place in the body of a bill of lading, they would not have the effect of making the bill an unclean one, we do not see how their mention in the margin would make a difference. But we need not express our final opinion thereon, as in the present case the words are found in the body of the bill itself.\n\nBut it is said that the omission of the adjective \"new\" qualifying the word \"drums\" or indeed the addition of the adjective \"old\" to qualifying the same would not necessarily make the bill any the less a clean bill, if oTd drums were suitable vehicles for conveying the articles supplied therein. The newness or the oldness of the container, the argument proceeded, was not decisive of its suitability, for in the main it depended upon its condition and contents. This argument as a proposition of law appears to be sound. In The Tromp(') potatoes, to the knowledge of the defendants' master who signed the bill of lading, were shipped in wet bags and in a damaged condition. The court held that as in the bill of lading the potatoes were described as shipped in good order and condition, which represented the external condition of the bags, the defendants were estopped from denying that the bags were dry when shipped. But it would be noticed that the packing in that case was defective and that was the main cause for the rotting of the potatoes and, therefore, the bill of lading was not a clean one. In Silver v. Ocean Steamship Co., Ltd.('), damage was caused to frozen eggs as the can:\n\nwherein they were packed were gashed, perforated or punctured and the eggs were insufficiently packed. So the court held that having given a clean bill of lading the shipowner was esotpped from proving that the cans were not in apparent good order and condition. In Brown .Jenkinson & Co., Ltd. v. Percy Dalton (London) Ltd.(') orange juice was shipped in barrels. Some of the barrels were old and frail and some were leaking. Yet the shipowners gave a clean bill of lading. They were estopped from denying that the barrels were in apparent good order and condition.\n\nThese decisions establish that good order and condition of packages depends upon the suitability of the packages for the\n\n(') L.R. [1906] I K.B. 237. (') L.R. [1921] p. 337.\n\n(') L.R. [1930] I K.B. 416.\n\n( 2) L.R. (1876] I p. 414.\n\n(') L.R. [1889] 5 T.L.R. 641.\n\n(') L.R. [1957] 2 Q.B. 621,\n\nSUPRE~IE COURT REPORTS [1966] SUPP. s.c.n.\n\nparticular goods or articles packed therein and other relevant circumstances of each case.\n\nWhat is the real scope and legal effect of the statement in the\n\nbill of lading that the goods were shipped in good order and condi -. tion? We have already noticed that a bill of lading with such a statement. which does not contain any further reservation or quali- B fication, is known as a dean bill of lading. The said words arc affirmation of a fact. It is an admission creating an cstoppel :1s between the shipowners and an endorsec. who on the faith of that admission has become endorsee for value of the bill of lading.\n\nThe shipowners are estopped from denying that the goods and the packages were not in good order and condition. The cstoppel applies only where the bad condition is discernible on a reasonable O examination of the containers, having regard to their contents.\n\nAny qualification of the said affirmation must only refer to the external and apparent condition of the containers: see The Skarp('). Silver v. Ocean Steamship Co •. I.rd.(') Companies Navicra\n\nNazconzada v. Churchill & Sim('), and The Tromp('). It is not necessary to consider the said decisions in detail as the principle is we!I settled.\n\nNow let us look at the relevant facts of the present case. It was one of the terms of the contract between the seller and the buyer that the goods should be packed in new fibre drums. The standard of good order and condition of the packages was agreed upon by the parties to the contract. The shipowners knew that condition as the Mate's receipt disclosed the same. If the drums E had been mentioned as old in the bill of lading. the said bill would not have been a clean bill. Though the apparent condition of the drums was old. the shipowners made an assertion that they were not old drums. i.e., they gave a clean bill. This representation was obviously intended, in collusion with the seller. to enable him to operate upon the credit with the Bank. This collusion is also apparent from !he indemnity bond they took from the seller to F guard themselves against the consequences of the said reprcsenta- \" tion. All the clements of deceit are present.\n\nThe decision in Brown Jenkinson & Co .. Ltd. v. Percy Da/- 1011 (Lo11don) Ltd.(') is apposite. There. the defendants had a • quantity of orange juice which they wish to ship to Hamburg. The plaintiffs, as agents of the owners of the vessel on which the orange juice was to be shipped. informed the defendants that the barrels G (, containing the orange juice were old and frail and that some of .~.,. them were leaking and that a claused bill of lading should be granted. The defendants required a clean bill of lading. and the shipowners. at the defendants' request and on a promise that the defendants would give to them an indemnity, signed bills of lading H\n\n- --- -· . - -··---- --\n\n('> J .. R. [1!135] 134. 1'1 l..R. fi030J I K.11. 410.\n\n('I ! .. It. [HJ 1fi] I K.B. 23i.\n\n('I J..n.. [Ifl21] P. :i37,\n\nI') J • .R [1967] 2 Q.B. 621.\n\n' •\n\nELLERMAN & BUCKNALL LTD. v. MISRIMAL (Subba Rao, J.) 103\n\nstating that the barrels were \"shipped in apparent good order and\n\ncondition\". The defendants, pursuant to their promise, entered into an indemnity whereby they undertook unconditionally to indemnify the master and the owners of the vessel against all losses which might arise from the issue of clean bills of lading in respect of the goods. The barrels when delivered at Hamburg, were leaking and the shipowners had to make good the loss. The plaintiffs sued the defendants under the indemnity. the benefit of which had been assigned to them. The defendants refused to pay, alleging that the contract of indemnity was illegal, because it had as its object the making by the shipowners of a fraudulent misrepresentation. The court held that the shipowners by making in the bill of lading a representation of fact that they knew to be false with intent that it should be acted upon were committing the tort of deceit, and that the defendants' promise to indemnify the shipowners against loss resulting from the making of that representation was accordingly unenforceable. The only difference on facts between that case and the present one is that in that case the barrels were not only old and frail but also some of them were leaking. But there, as here, the shipowners made a representation of fact which they knew to be false with intent that it should be acted upon. If so, it follows that the High Cct't was right in holding that the appellant was liable in damages for the loss incurred by the respondent.\n\nLearned counsel for the appellant sought to raise three further points, namely, (i) the shipowners were not bound by the representation made by the ship's mate; (ii) the bill of lading was governed by the American law and not by common law; and (iii) the plaintiff-buyer, having obtained a decree against the seller in the American court, could not maintain the present suit for damages. ·\n\nThe first point was not raised till now and, therefore, we can not permit the learned counsel to raise it for the first time before F us.\n\nThe second point, namely, what is the American law? is a question of fact. We have not got sufficient material on the record to know what the American law on the subject is. We cannot, therefore, permit the appellant to raise this point either.\n\nThe third point is also one not pressed in the courts below G and, therefore, does not call for our decision.\n\nln the result. the appeal fails and is dismissed with costs.\n\nAppeal dismissed.\n\nL/ ; a.scI-.n", "total_entities": 5, "entities": [{"text": "ELLERMAN & BUCKNALL STEAMSHIP CO. LID", "label": "PETITIONER", "start_char": 0, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "ELLERMAN & BUCKNALL STEAMSHIP CO. LID", "offset_not_found": false}}, {"text": "SHA MISRIMAL BllERAJEE", "label": "RESPONDENT", "start_char": 40, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "SHA MISRIMAL BHERAJEE", "offset_not_found": false}}, {"text": "IK. SunnA RAO A1'D V. RAMASWAMI, JJ", "label": "JUDGE", "start_char": 80, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "V. 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