MOHAR RAI & BHARATH RAI

THE STATE OF BIBAR

March 22, 1968

[R. S. BACHAWAT AND K. S. ffEGDE, JJ.]

Cri11linal Trial-Trial Court and High Court refusing to exan1int• accused's defence- 01i ground. their 1:ersion had already been rejected in anot!1er case filed on a complaint by accused-if permissible.

Code of Crimirwl Procedure, 1898, ss, 145, 154, 157 & 168-docu- 111e11t containing staten1ent of accus<td in investigation--accused no1 exa- 111i11ed as witness-whether document c.dniissible evidence.

The first appellant was convicted under s. 324 JPC for shooting and injuring PW I, at the instigation of the second appellant, who was himself convicted of an offence under s. 324 read with s, 109 lPC. The existence of enmity between the appellants and most of the prosecution witnesses who spoke to the occurrence was satisfactorily established. The plea of the appellants in their defence was that on the date of the incident when they were returning home in the evening, they were way-laid by PWI and several others and were assaulted; thereafter with a view to foist 8 false case against them, a revolver was forcibly thrust into the hands of the first appellant.

In connection with this incident, the State came to initiate three prosecutions : One case was instituted on the basis of a complaint by the first appellant; a second case was commenced against the first appellant under s, 19(f) of the Indian Arms Act for being armed with a revolver; and the third was the present case.

The case instituted on the first appellant's complaint as well as the case against him under the Arnts Act were both dismissed.

The trial court as well as the High Court refused to examine the defence of the appellants solely on the ground that the case pleaded by them had been rejected by the Magistrate in the prosecution commenced on the basis of the complaint by the first appellant.

In appeal to this Court it was contended on behalf of the appellants that they did not have a fair trial; the High Coµrt as well as the trial court on an erroneous view of the law refused to take their defence into consideration; they ignored important circumstances appearing in favour of the appellants; and furthermore, some of the conclusions reached by them were unsupP.orted by any evidence on record. It was also contended that itn inadmissible document, namely a statement made by the second appellant in the course of the investigation was wrongly admitted; this admission was hit by s. 162 of the Code of Criminal Procedure which had also greatly prejudiced the ca&a of the appellants.

HELD : The appeals must be allowed and the appellants acquitted.

(i) The trial .court as well as the High Court erred in summarily re jccting the defence of the appellants on the sole ground that the version put forward by them having been rejected by the Magistrate in the case filed on the complaint of the first appellant, it could not be considered again.

The defence of the appellants was highly probabilised by three important circumtances, namely. ( l) it was put forward immediately

after the occurrence, (2) it satisfactorily explained the injuries found on the persons of the appellants while the prosecution evidence failed to

526 SUPREME COURT RBPOllTS

(1968] 3 S.C.R.

explain those injuries; and (3) the prose<:ution evidence itself showed that the first appellant couW not have used the revolver exhibited and therefor his version that that weapon was thrust on him was probabilised.

[531 H-532 BJ In both the prosecutic'!s-in the complaint made by the first appellant as well as m the complaint made by P.W.1-the pl-oeecutor before the court was the State. Therefore, the decision in the former case could not operate as an issue-estoppel against the appellants in the present case, because they were not parties in the former case. In other words, the plea taken by the appellants in this case was never before litigated bewteen them and the State, the opposite party in the present case. All that can be said is that the case put forward by the State in the one case was in consistent with that put forward by it in the other, In those circumstances it was wrong to hold that the appellants were estopped from putting forward their defence. [531 B-D]

Prilam Singh v. The State of Punjab, A.l.R. 1956 S.C. 415; Manipur Adniinirtration v. Thokchoni, Bira Singh, (1964] S.C.R. 123; Sa112baSivan1

v. Public Prosecutor, [1950] A.C. 458; and King v. Wilkes; 77 C.L.R. 511 at pp. 518-519, referred to.

(ii) The trial court and the High Court relied on the second appellant's statement in the document admitted in evidence to the effect that it was a particular person who fired a pistol to contradict the statement of the first appellant in his complaint that a pistol was fired bv some other

peon. No portion of this statement could have been used 'for that purpose either s. 157 or s. 145 of the Evidence Act. As the cond appellant was not examined as a witness in the present case, his previous statement could not have been used either to contradict bis evidence of corroborate it even if it were to be held that it was a statement falling under s.154 of the Code of Criminal Procedure. [532 H-533 BJ

Nazir Ali, v. State of U.P. A.l.R. 1957 S.C. 366; distinguished.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 159 and 160 of 1965.

Appeals by special leave from the judgment and order dated July 28, 1965 of the Patna High Court in Criminal Appeal Nos . . 533 and 534 of 1963.

R. K. Garg, D. P. Singh, S. C. Agarwala, S. P. Singh and K. M. K. Nair, for the appellants (in both the appeals).

B. P. Iha, for the respondent (in both the appeals.)

The Judgment of the Court was delivered by Hegde, J. In these connected appeals by special leave the legality of the convictions of the appellants-appellant Mohar Rai under s. 324 of the lndi.n Penal Code and appellant Bharath Rai under s. 324/109 of the Indian Penal Code-is challenged.

In the trial court the former was convicted under s. 307 of the Indian Penal Code and the latter under s. 307/109 of the Indian Penal Code. The High Court of Patna, in appeal, altered their convictions as set out above.

In order to appreciate the contentions advanced on behalf of the appellants, it is n_ecessary to state briefly the prosecution as

well as the defence version. The case made out by the prosecution is that because of previous enmity Mohar Rai shot and injured P.W. 1 Balli Ahir, at the instigation of Bharath Rai,. on the evening of October 8, 1961, in Natwar Bazar. The existence of enmity between the &ppellants and most of the prosecution witnesses who speak to the occurrence, is satisfactorily established. Many of the prosecution witnesses appear to have been proceed~ against under s. 107 of the Code of Criminal Procedure at the instance of the appellants. The plea of the appellants was that on the day of incident when they were returning to their house in the evening they were way-laid by P.W.l and several others; one of those persons fired shots at Mohar Rai, but it missed him; to save himself he (Mohar Rai) ran away from the scene, subsequently two more shots were fired; meanwhile he got into the house of Lal Bahadur Mistri (P.W.9), but his assailants pursued him, forced their entry into the house of .P. W. 9 and there assaulted him; thereafter with a view to foist a false case against him forcibly thrust into his hands the revolver (Ex.III) and then handed him over with Ex.III to Janardan Singh (P.W. 15), the palice constable. The plea of Bharath Rai was that during the incident mentioned by Mohar Rai, he was caught hold of and assaulted by some of the prosecution witnesses. The. High Court and the trial court have rejected the plea of the appellants and relying on tqe prosecution evidence convicted the appellants as mentioned earlier. This Court being a Court of special jurisdiction does not re-assess the evidence in a case except under .exceptional circumstances.

It was urged on behalf of the appellants that they did not have a fair trial, the High Court as well as the trial court on an erroneous view of the Jaw refused to take into consideration their defence, they ignored important circumstances appearing in their favour and further some of the conclusions reached by them are unsupported by any evidence on record. We have to see how far these submissions are well-founded.

Out of the incident mentioned above, the State came to initiate as many as three prosecutions. G. R. Case 1370/TR-20 of 61/63 in the Court of the Munsif-Magistrate I Class, Sasaram was instituted on the basis of the coi; nplaint loifged by Mohar Rai.

G.R. 506 of 1962 on the file of the Munsif-Magistrate I Class, Sasaram was a case under s. l 9(f) of the Indian Arms Act against Mohar Rai for being arn1ed with a revolver at the time of the incident mentioned earlier. The third case is the one with which we are concerned in these appeals.

The case instituted on the basis of the complaint made by Mohar Rai was acquitted on February 1, 1963. The Arms-Act case ended in acquittal on May 13, .1964. The appeal against that order was dismissed by the High Court of Patna on September 5, 1966. A copy of the judgment in that appeal was pr?<1uced at the hearing of these

appeals and received as additional evidence with our permission.

The trial court as well as the High Court refused to examme the defence of the appellants solely on the ground that the case pleaded by them had been rejected by_the learned Munsif-Magistrate I Class, Sasaram in the prosecution commenced at the insta11ce of Mohar Rai.

The prosecution case was that immediately after the occurrence, Mohar Rai was chased and caught and at that time he had in his hands the revolver (Ex.III). Very soon thereafter he was produced before Audeshwar Prasad Singh (P. W.19) with the revolver in question. The further case of the prosecution was that P.W. 19 seized that revolver; later during investigation he seized the three cartridges said to have been fired by Mohar Rai as well as a misfired cartridge; the revolver as well as the seized cartridges were sent to the ballistic expert for examination. These facts were spoken to by the prosecution witnesses, in particular by P.W. Janardhan Singh, the constable to whom Mohar Rai was handed over immediately after the occurrence and P.W. 19 the investigating officer. P.W. 19 deposed that the number of the revolver seized is 545465. He is positive that the revolver seizea from Mohar Rai is Ex. III, though in his report to the ballistic expert he had given the number of the revolver sent for examination as 545466, but in that report itself he had added a note to say that the last two digits were not clear. The prosecution proceeded on the basis-there is no ambiguity about it-that Ex: III was the weapon that was used in the commission of the offence. The ballistic expert who was examined as D.W. 1 was positive that the seized empties as well as the l)lisfired cartridge could not have been fired from Ex.III. The evidence of this witness has been accepted both by the trial court as well as by the High Court. From that it follows that the prosecution case that Mohar Rai fired three shots from Ex.III cannot be accepted as true. If this part of the prosecution case fails then very little remains in the prosecution case.

The trial court and the High Court have brushed aside this important aspect on a wholly untenable basis: They opined that by some mistake a revolver different from that seized from Mohar Rai might have been sent to the ballistic expert. The conclusion has no basis on the material on record.

It is just a speculation-a process not open to" courts. E_yidently overwhelmed by the evidence of the large number of witnesses who deposed in favour of the prosecution case, forgetting the fact that most of them belong to tl1e faction opposed to the appellants. the trial court and the High Court ignored the probabilities and lost sight of the evidence afforded by the circumstances appearing in the case. Both those courts failed to realise that the fact that Ex. III was not the revolver that was used during the

• E

incident went .to probablise the plea taken by Mohar Rai. At this stage we may recall the fact that both the trial Magistrate as well as the High Court rejected the prosecution case and acquitted Mohar Rai in the case against him under s. 19 (f) of the Anns Act.

It is true that the decision of the trial court in that .case was rendered after the Assistant Sessions Judge, Sasaram, convicted the appellants in the present case and therefore it may be that the appellants cannot take the benefit of the rule laid down by this Court in Pritam Singh v. The State of Punjab(') and affirmed in Manipur Administration v. Thokchom, Bira Singh( 2 ).

But even without the assistance of that rule, on the basis of the prosecution evidence itself the prosecution version stands discredited. Once it is proved that the empties recovered from the scene could not have been fired from Ex.ill the prosecution case that those empties were fired from Ex.III by Mohar Rai stands falsified.

The trial court as well as the High Court wholly ignored the significance of the injuries found on the appellants.

Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14.

We get it from the evidence of P.W. 15 that he noticed injuries on the perscin of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised.

Under these circumstances the prosecution had a duty to explain those injuries. The evidence of Dr. Bishun Prasad Sinha (p.W. 18) clearly shows that those injuries could not have been self-inflicted and further, accord- 'ing to him, it was most unlikely that they would have been caused at the instance of the appellants themselves. -Under these circumstances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment the failure of the prosec11tion to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.

Both the trial court as well as the High Court refused to talce into consideration the plea of the appellants on the ground that that plea did not commend itself to the trial Magistrate in the case instituted on the complaint of Mohar Rai. They were erroneously of the view that the plea in question was barred by the rule )aid down by this Court in Pritam Singh' s case ( 1). In that case, this Court accepted as cotTect the following statement of

(I) A.LR.1956S.C.415.

(2) [1964] 7 S.C.R. 123

530 SUPREME COUllT llEPOR.TS

(1968] 3 S, C, R.

the law made by the Judicial Committee in Sambasivam v. Public Prosecutor, Federation of Malaya('); ·

"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.

The maxim 'res judicata pit> vetitate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial."

Dixon J., of the Australian High Court in the King v. Wiikes(') explained the legal position in these words ;

"Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there js an issue-estoppel, if it appears by record .of itself or as explained by proper evidence, that the .same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. That seems to be implied in the language used by Wright, J. in R. v. Ollis [1960] II Q.B. 758, at p. 769) which in effect I have adapted in the foregoing statement. . . . . . There mqst be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown agai_nst the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue-estoppel should not apply. Such rules are not to be confused with thOse of res judicata, which in criminal proceedings are expressed in the pleas of autrefois acquit and autrefois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue-estoppel is concerned with the judicial es!ablishment of a :iro- "(i) [1950] A.C. 458,

(2) (77) C .. L.R. 511, at pp. 518·519.

H {

MOHAR RA! V.-BIHAR (Hegde, /.)

position of a law or fact between parties. It depends upon well-known. doctrines which cotrol. !he. reli,?gation of issues which are settled by prior htigatton.

This Court endorsed that statement in Manipur Administration's case('). But the law laid down in those cases bas no application to the facts of the present case. In both the prosecution-in the complaint made by Mohar Rai as well as in the complaint made by P.W. 1-the prosecutor before the court was the State.

Therefore, the decision in the former case cannot operate as an issue-estoppei against the appelfar.ts in the pr~-; ent

case, because they were not parties in the former case. In other words the plea taken by the appellants in this case was never before litigated between them and the State, the -opposite party in the present case. All that can be said is that the case put forward by the State in the one case is inconsistent with that put forward by it in the other. In those circumstances it was wrong to hold that the appellants were estopped from putting forward their defence.

That apart, it is doubtful-though for the purpose of this case it is unnecessary to express any final opinion on this point-whether the rule in question could be pressed against an accused, the reason being that while a prosecution cannot succeed unless it proved its case beyond reasonable doubt, the nature of the proof required of an accused in ' substantiating the plea taken by him is different-it is sufficient if he proves that plea taken by him is reasonable and probable.

In tftat event he is entitled to the benefit of doubt. This aspect was noticed by this Court in Manipur Administration's(') case, where it was observed :

"Before parting, we think it proper to make one observation. The question has sometimes been mooted as to whether the same principle of issue-estoppel could be raised against an accused, the argument against its application being that the prosecution cannot succeed unless it proved to the satisfaction of the Court trying the accused by evidence led before it that he is guilty of the offence charged. We prefer to express no opinion on this question since it does not arise for examination."

For the , reasons mentioned above, we are satisfied that the trial court as well as the High Court erred in summarily rejecting the defence of the appellants on the sole ground that the version put forward b)> them having been rejected by the court in G .R. case 1376ITRi20 of 61/63 in the court of the Munsif-Magistrate I ctass, Sasaram the same cannot Nii. onoi... ...-.. :..t---~ U:e ~--- - ..,.., '4C••Ull '-'Vll.>JU"'!~U. .,..,. thil'.k that the aeience of the appellants is highly probabilised by

(I) [1964! 7 S.C.R. 123.

three important circumstances, namely-(i) the same was put forward immediately after the occurrence, (ii) it satisfactorily explains the injuries found on the persons of the appellants while the prosecution evidence fails to explain those injuries, and (iii) the prosecution evidence itself shows that Mohar Rai could not have used Ex. III and therefore his version that that weapon was thrust on him is probab!ised.

The last contention taken by Mr. Garg is that admission of Ex. 4, an inadmissible document, has greatly prejudiced the cnse of the appeiianis. According to him, the admission of that document is hit by s. 162 of the Code of Criminal Procedure.

In the alternative, he contended that that document could not have been used to discredit the plea taken by Mohar Rai. We have earlier noted the two divergent versions given by P.W.1 and Mohar Rai in respect of the incident that took place on the evening of October 8, 1961. Quite naturally, both these complaints were investigated simultaneously. The statement given by P.W.1 was recorded as first information in one case and the statement given by Mohar R.ai as first information in the other. Appellant Bharath Rai was questioned during the investigation. His statement is Ex. 4. The trial court came to the conclusion that it was not hit by s. I 61 as the same was not recorded in the course of investigation in the case against Bharath Rai.

The High Court justified the admission of that document on the basis of the rule laid down by this Court in Faddi v. State of Madhya Pradesh('). namely-where the person who lodged the first information report regarding one offence is himself subsequently accused of that offence and tried and the report lodged by him is not a confessional first information report but is an admission by him of certain facts which have a bearing on the question to be determined by the Court, viz., how aud by whom the offence was committed or whether the statement of the accused in the court denying the correctness of certain statements of the prosecution witnesses is correct or not, the first information report is admissible to prove against him, his admissions which are relevant under s. 21 of the Evidence Act It was contended on behalf of the appellants that whether that statement is held to have been taken during the investigation of the complaint made by P.W. 1 or during the investigation of the complaint made by Mohar Rai, in either case it is hit by s. 162 of the Code of Criminal Procedure. It was also urged that the rule laid down in Faddfs case(') has no application to the facts.-of the present case.

In the instant case no p6rtion of Ex. 4 was relied on as an admission of Bharath Rai.

Hence the rule laid down in Faddi's ca8e('} could not have been caiieci iniu aid. The tria1 curt ~"ld th!:! JU.gh_ Court relied on Bharath Rai's statement that it was Naulakh Rai who fired a pistol

\I) A.1.P.1964S.C.1850.

to contradict the statement of Mohar Rai in his complaint that a pistol was fired by Dudhnath. No portion of Ex. 4 could have been used for that purpose either under s. 157 or s. 145 of the Evidence Act. As Bharath Rai was not examined as a witi!ess in the present case his previous statement .could not have been used either to contradict his evidence or corroborate it even if it is to be held that it is a statement coming under s. 154 of the Code of Criminal Procedure: see Nazir Ali v. State of U.P.(1).

The circumstances noticed above, in our opinion, not merely affect the value and weight to be attached to the prosecution evidence, but they pursuade us to doubt the prosecution version. In the circumstances, we are unable to resist the conclusion that there has been a miscarriage of justice.

We accordingly allow these appeals and acquit the appellants.

Their bail bonds do stand cancelled.

R.K.P.S.

Appeals allowed.

(1) A.I.R. 1957 S.C. 366.

MOHAR RAI & BHARATH RAI

STATE OF BIBAR

March 22, 1968

R. S. BACHAWAT

Code of Crimirwl Procedure, 1898

s. 324

s. 324

Arms Act

s. 162

Code of Criminal Procedure

s. 157

s. 145

Code of Criminal Procedure

Patna High Court

R. K. Garg

D. P. Singh

S. C. Agarwala

S. P. Singh

K. M. K. Nair

B. P. Iha

Hegde

Mohar Rai

s. 324

Penal Code

Bharath Rai

s. 324

Indian Penal Code

s. 307

Indian Penal Code

s. 307

Indian Penal Code

High Court of Patna

Mohar Rai

Balli Ahir

Bharath Rai

October 8, 1961

s. 107

Code of Criminal Procedure

Mohar Rai

Lal Bahadur Mistri

Janardan Singh

Arms Act

February 1, 1963

May 13, .1964

September 5, 1966

Audeshwar Prasad Singh

Janardhan Singh

s. 19

Assistant Sessions Judge, Sasaram

Bharath Rai

Bishun Prasad Sinha

Pritam Singh

[1964] 7 S.C.R. 123

Dixon

Australian High Court

Wright

MOHAR RA! V.-BIHAR (Hegde

Manipur Administration

Munsif-Magistrate I ctass, Sasaram

Garg

s. 162

Code of Criminal Procedure

Mohar R.ai

s. 21

s. 162

Code of Criminal Procedure

Faddfs

Faddi

Naulakh Rai

Dudhnath

s. 157

s. 145

s. 154

Code of Criminal Procedure


LAKHAN LAL AND OTIIERS ETC. v.

THE STATE OF BffiAR AND OTHERS ETC.

March 26, 1968

{M. HIDAYATULLAH, C.J., R. S. BACHAWAT, C. A. VAIDIALINGAM,

K. S._ HEGDE AND A. N. GROVER, JJ.]

Bihar Agricultural Produce Markets Act (16 of 1960), ss. 2(h), 4(1), 5(2), IS(i/) and Bihar Agricultural Market Produce Rules, 1962 r. 59- Power of declaring market crea under s. 4( I )-Scope of-:..:/Jarktt, if should have well defined site,- niarket equip1nent and facilitie1-Licence

fees-If in nature of tax-Settinz up 1narket in one area of SttJte-tf ofjerrds Art. 14 of Constitution.

The State Government of Bihar followed the procedure prescribed by :the Bihar Agricultural Produce Markets Act, 1960, and the Bihar Agricul

tural Produce Market Rules, 1962, before issuing the necessary notifica tions for regula, in~ the purchase and sale of certain items of agricultural

produce and for establishing a market for them in the Gaya area of the State.

Under s. IB(ii) of the Act no person can do business as a trader or other operator in the notified agricultural produce in a market except :uhder a licence granted by the market committee on payment of the prescribed licence fees.

The validity of the notifications declaring the market area and •establishing the market for the notified agricultural produce and the lega lity of the levy of market fees and licence fees were questioned on the following grounds. ( 1) the area declared lo be the market area was too wide; (2) the market committee had not established any market Y.ithin .a well-defined site with market equipment and facilities; (3) the fees levied by the market cmmittee were in the nature of taxes as the committee did not render any services to the users of the market and therefore the levy was illegal; ( 4) the setting up of a market in Gaya was discriminatory .and violative of Art. 14 as the Act and Rules had not been implemented in all parts of Bihar.

HELD: (I) The power of the State Government under s. 4(1) of declaring an area or. part of it to be a market area in respect of a notified agricultural produce, after considering any objections and suggestions :received by it, should no doubt be exel'cised reasonably; But, there is nothing to show that the Government acted unreasonably or that the market was so wide that the sale and purchase of agricultu'ral produce within it eould not be effectively controlled by the market committee or that the growers within the area could not conveniently bring their pro- duce lo the market yards. [539 D-EJ

(2) For establishing a market it is sufficient to issue a notification 11nder s. 5(2) fixing the boundaries of the 'market proper• and tho 'market yards' on the recommendation of the market committee made under r. 59(2).

The definition of 'market' does not require a well-defined site with market equipment and facilities.

Under s. 18(1). the market !'Om mittee must provide such facilities as the State Government may direct, 'but it was not shown that the market committee refused to ca\Ty out any such direction.

Under ss. 28(2) and 30(i) the market committee may acquire and own lands and buildings for the market, but it is not obliged

o do so. [539 F-H)

(3) The fees collected by the market committee were not excessive and formed part of the market committee fund which was set apart and. ear-marked f<ir the purposes of the Act such as elimination of unhealthy market practices, ensuring correct weighment and grading, quick settlement of disputes, dissemination of information Ngarding prices of agricultural produce etc.

There is tbefefore, sufficient quid pro quo for the levies and they satisfy the test of 'fees'. (540 A-El B Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, (1954] S.C.R. 1005, referred to.

(4) The State Government is not bouhd .to implement the .Act and the Rules in all parts of Bihar at the same time. It may establish markets regulating the sale and purchase of agricultural produce in different parts of Bihar gradually and from time to time. (540 F-0] C OluGINAL/CI, VIL/CRIM\NAL

APPELLATE JURISDICTlON:

Writ Petition Nos. 103 and 199 of 1967.

Petition under Art. 32 of the Constitution' of India for the enforcement of fundamental rights.

AND

Civil Appeal No. 1971 of 1966.

Appeal from the judgment and order dated December 2, 1965: of the Patna High Court in C.W.J.C. 442 of 1965.

AND

E Criminal Appeals Nos. 164 to 168 of 1966.

Appeals by special leave from the judgment and order dated December 22, 1965 of the Patna High Court in Criminal Misc ..

Nos. 649, 666, 667, 668 and 669 of 1965.

N. C. Chatterjee and A. K. Nag, for the petitioners (in .W.P ..

Nos. 103 and 199 of 1967).

. M. C. Chagla and A. K. Nag, for the appellants (in C.A. No. 1971 of 1966).

A, K. Nag, for the appellants (in Cr. A. Nos. 164 to 168 of

1966) . . c. K: Daphtary, Attorney-General, D. P. Singh, K. M. K ..

Nair, Ami Kumar Gupta for respondents (in W.P. Nos. 103 and. 199 of 1967).

B. P. Iha, for the respondents (in C.A. Nos. 1871 of 1966). and the respondents (in Cr. A. Nos. 164 to 168 of 19~6);

The Judgment of the Court was delivered by 8acbawat, J, W.P. No. 199 of 1967, C.A. No. 1971of196& and Cr. As. Nos. 164-168 of 1966 raise common questions as t<> the validity of the notifications declaring a market area and establishing a market for agricultural produce in Gaya and the legality of the levy of market fees and licence fees therein under the Bihar Agricultural Produce Markets Act, 1960 (Bihar Act 16 of 1960)

and the Bjhar Agricultural Produce Markets Rules 1962. The contentions are that (1) the notification declaring the market area is void as the notified market area is too wide, (2) the market committee has not established any market and in the absence of a market and a lawful market area, the provisions of the Act and the Rules are not enforceable in the area, (3) the fees are in the

nature of taxes and are illegally levied as no services are being rendered by the market committee and ( 4) the enforcement of the Act and the Rules in Gaya without implementing them in the whole of Bihar is discriminatory and violative of Art. 14 of the Constitution. W.P. No. 199 of 1967 is a writ petition filed in this Court. C.A. No. 1971 of 1966 is an appeal from iln order of the Patna High Court dismissing a writ petition filed in that Court. Cr. As. Nos. 164-168 of 1966 are appeals filed against the orders of the Patna High Court refusing to quash criminal prosecutions under s. 48 for refusal to take out licences in contravention of Rule 71.

The relevant provisions of the Act and the Rules and the relevant notifications may be noticed briefly.

As stated in the preamble, the object of the Act is to provide for the better regulation of buying and selling of agricultural produce and the establishment of markets for it in the State of Bihar and for matters connected therewith. "Agricultural produce" as defined in s. 2(1)(a) includes all produce mentioned in the schedule ta the Act.

Sections 2, 3, 4 and 5 define and deal with market area, market, market proper and market yards. "Market area" is the entire area within which purchase and sale of agricultural produce is regulated. "Market" for the area consists of a market proper, a principal market yard and sub-market yard or yards, if any. "Market proper" is an area inside the market area and within a certain distance from a market yard. "Principal market yard" and "sub-market yard" are enclosures, buildings or localities within the market proper.

'J'.he State Government may issue a notification under s. 3 declaring its intention of regulating the purchase and sale of specified agricultural produce in any area. After considering the objections and suggestions received by it and after holding necessary enquiries, if any, the State Government may issue a notification under s. 4(1) declaring the area or any part of it to be the market area in respect of any notified agricultural produce. Section 4(2) provides that on the issue of such a notification no place can be set up, established or continued except in accordance with the provisions of the Act, rules and bye-laws for the purchase or sale of the agricultural produce other than sales by the growers and

retail sales to consumers. The State Government is required by s. 6 to establish a market committee for every market area. Under Rule 61 read with s. 27 the market committee is required to levy and collect mark.et fees on the agricultural produce bought in the market area at the rate of 25 naye paise for Rs. 100/- worth of the produce.

The relevant provisions relating to the establishment of market may now be read :

"2 (h) market means a market established under this Act for the market area and includes a market proper, a principal market yard and sub-market yard or yards, if any.

S. 5. Declaration of market yards-( 1) For each market there sitall be one principal market y'l!d and there may also be one or more sub-market yard or yards as may be necessary.

(2) The State Government may, by notification, declare--

(i) any enclosure, building or locality in any market area to be the principal market yard and other enclosures, buildings or localities in such area to be one or more sub-market yard or yards for the said market area; and

(ii) any area, including all lands, with buildings therein, within such distance of the market yard or yards as it thinks fit, to be market proper.

18. Objects and duties of the Market Committee Subject to the other provisions of this Act, the following shall be the objects and duties of the Market Committee:-

(i) when so required by the State Government, to

est~~'!sh a market for the market area providing for such fac1lit1es as the State Government may, from time to time, direct in connection with the purchase and sale of the agricultural produce concerned; ....

Rule 59. Establishment of markets ( 1): After the issue of the notification under section 4 and establishment of the market committee under section 6, the State Government shall direct the market committee to establish a market.

(2) when directed to do so under subcrule (1), the market committee shall establish a market for the market area for which it is established.

(3) After the establishment of a market by the market committee, the State Government shall issue a notification under section 5." ·

A market as defined in s. 2(h) is established for a market area by following the procedure laid down in secs. 5, 18(i) and Rule 59.

The State Government issues a direction under s. l 8(i) read with r. 59(1) to the market committee to establish a market for the market area. On receipt of this direction the market committee decides under r .. 59(2) to establish a market by fixing the boundaries of the market proper and the principal market yard and sub-market yard, if any.

Thereafter the government issues the necessary notification under s. 5(2) declaring the market proper and the market yards. These three steps form one integrated process and on the issue of the notification under s. 5(2) the market is finally established.

The market so established consists of the market proper and the market yard or yards. There is no other separate market place.

The expression "market" is used in the Act 3i meaning either the market proper or the market yards or both. Under section 15 read with r. 67 as soon as a market i' established a)] notified agricultural produce brought into, produced or processed in the market proper save a prescribed quantity for retail sale or consumption must pass through a market yard and shall not be sold at any other place within the market proper and the price shall be settled by open auction and not otbel'\'\'lSe.

Thus the business of sale and purchase of the agricultural produce is concentrated in the market yards and takes place at fair prices under regulated conditions in the presence of a large number of buyers and sellers. Under sec. 18(ii) and Rule 71 and 73, as amended by notification No. 4575 issued by the State Government on March 25, 1965 no person can do business as a trader or other operator in the notified agricultural produce in a market except under a licence granted by the market committee on payment of the prescribed licence fees.

The procedure prescribed by the Act and the Rules was followed for regulating the purchase and sale of agricultural produce and for establishing a market for it in the Gaya area. On December 13, 1962 the State Government issued the necessary notification under s. 3. On September 19, 1963 it issued a notification under s. 4(1) declaring Gaya town, Gaya Mulfasil, Bodh Gaya and Paraiya Police Station within the Sadar sub-division of Gaya District as the market area for the sale and purchase of paddy, rice, masur, linseed, gur and potato. On the same date it established a market committee for the market area. On October 22, 1963 the Government acting under s. 18(i) and r. 59(1) directed th.e market committee to establish a market. On January

2;3, 1964 tl\e market committee decided to establish a market under

r. 59(2) and made its recommendations regarding market proper and the principal market yard. On February 12, 1964 the market committee made its recommendation regarding the sub-market yard. The resolution of the committee dated January 23, 1964 stated that as directed by the State Government ''this committee appoints Gaya bazar to be area of this bazar." This clumsy phrase really means that as directed by the Government the committee was establishing a market for the Gaya market area. The market consisted of the market proper and the market yards. There was no other separate market known as the Gaya bazar. On April 6, 1964 the Government issued a notification under s. 5(2)(ii) declaring the entire area under the jurisdiction of the Gaya municipality and several villages as the market proper. On April 7, 1964 the Government issued a notification under s. 5(2)(i) declaring the locality of Mahallah Parani Godown within Gaya Police Station to be the principal market yard and the locality known as Kedamath Market within Gaya Police Station to be the sub-market yard.

Mr. M. C. Chagla submitted that the area declared to be the market area by the notification on September 19, 1963 is too wide. This objection is not well-founded. It may be conceded that the power under s. 4(1) should be exercised reasonably. But there is no material on the record to show that the Government acted unreasonably or that the market is so wide that the sale and purchase of agricultural produce within it cannot be effectively controlled by the market committee or that the growers within the area cannot conveniently bring their produce to the market yards. The market area was duly declared under s. 4(1) after considering all objections and suggestions made in that behalf.

Counsel next submitted that the market committee has not established any market. According to Counsel, a market must be a well defined site with market equipment and facilities. The argument overlooks the definition of market in s. 2(h). The market consists of market proper, and the market yards . The market yards are well defined enclosures, buildings or localities but the market proper is under s. 2(k) read with s. 5(2)(ii) a.larger area.

For establishing a market it is sufficient to make a declaration under s. 5(2) fixing the boundaries of the market proper and the market yards on the recommendation of the market committee made under r. 59(2). Under s. 18(i) the market committee must provide for such facilities in the market as the . State Government may from time to time direct. It is not shown that the market committee refused to carry .out any direction of the Government.

The market comtnittee. my in view of ss. 28(2) an~ 30(i) acquire an~ own lands and buildings for the market, but 1t is not always obliged to do so.

The market is established on the issue of a L7 Sup. C.T./68-10

540 SUPRBMB COUP.T RBPOllTS (1968] 3 s.c.R.

notification under s. 5(2) declaring the market proper and the mar- A ket yards.

The next contention is that the fees levied by the market committee are in the nature of taxes as the committee does not render any services to the users of the market and the levY of fees is therefore illegal. This contention is not tenable. The market committee has taken steps for the establisbment of a market where buyers and sellers meet and sales and purchases of agricultural produce take place at fair prices.

Unhealthy market practices are eliminated, market charges are defined and improper ones are prohibited. Correct weighment is ensured by employment of licensed weighmen and by inspection of scales, weights and measures and weighing and measuring instruments. The market committee has appointed a dispute sub-committee for quick settlement of disputes. It has set up a market intelligence unit for collecting and publishing the daily prices and information regarding the stock, arrivals and despatches of agricultural produce.

It has provided a grading unit where the technique of grading agricultural produce is taught. The contract form for purchase D and sale is standardised.

The provisions of the Act and the Rules are enforced through inspectors and other staff appointed by the market committee. The fees charged by the market committee lire correlated to the expenses incurred by it for rendering these services. The n:i.arket fee of 25 naye paise per Rs. 100/ • worth of agricultural produce and the licence fees prescribed by E Rules 71 and 73 are not excessive. The fees collected by the market committee form part of the market committee fund which is set apart and ear-marked for the purposes of the Act. There is sufficient quid pro quo for the levies and they satisfy the test of "fee" as laid down in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamlar of Sri Shirur Mutt.(') F

It is then said that the setting up of a market in Gaya is discriminatory and violative of Art. 14 of . the Constitution as the Act. and the Rules have not been implemented in all parts of Bihar. There is no force in this contention. The State Government is not bound to implement the Act and the Rules in all G parts of Bihar at the same time. It may establish markets regulating the sale and purcha8e of agricultural produce in different parts of Bihar gradually and from time to time.

In Writ Petition No. 103 of 1967 the relevant notification relating to Barb and the levy of fees by the market committee are challenged on the same grounds. The notification under s. 4(1) declaring the area within Barh police station to be a market area

(I) [1954) S.C.R. 1005.

H 1

in respect of the agricultural produce mentioned therein was issued by the State Government on May 26, 1965. Thereafter the market for the area was established and notifications declaring the market proper and the market yards were issued after following the procedure laid down in secs. 5, 18 (i) and r. 59. For the reasons already given we find no substance in any of the contentions raised in this petition.

In Thakur Prasad Gupta v. The State of Bihar(1 ) the High Court of Patna upheld the constitutionality of the A.ct and Rule 61 but it struck down Rule 71 then in force as the rule imposed the liability to take out licences for operating in the entire market area and was ultra vires s. 18(ii). This judgment was pronounced on November 20, 1964. Theriafter Rules 71 and 73 were amended by notification No. 4575 dated March 25, 1965 and the word "market" was substituted for the words "market area" therein.

The amendment cures the objection that these rules were ultra vires s. 18 (ii). In all the matters before us the constitutionality of the Act and the Rules were again challenged. But when the hearing of these cases commenced, counsel expressly gave up all contentions regarding the invalidity of the Act and the Rules.

In the result, C.A. No. 1971 of 1966, W.P. Nos. 199 and 103 of 1967 are dismissed with costs. There will be one hearing fee. Cr. As. Nos. 164-168 of 1966 are dismissed.

V.P.S.

Petitions and appeals dismissed.

{l) Al.R. 196S Pai. 267

LAKHAN LAL AND OTIIERS ETC

THE STATE OF BffiAR AND OTHERS ETC

March 26, 1968

M. HIDAYATULLAH, C.J.

R. S. BACHAWAT

K. S._ HEGDE

A. N. GROVER, JJ.

Bihar Agricultural Produce Markets Act

ss. 2(h), 4(1), 5(2)

s. 4( I )

Art. 14

tural Produce Market Rules, 1962

Gaya

Art. 14

Bihar

s. 4(1)

s. 5(2)

s. 18(1)

ss. 28(2) and 30(i)

Art. 32

N. C. Chatterjee

A. K. Nag

M. C. Chagla

A, K. Nag

D. P. Singh

K. M. K ..

Nair

Ami Kumar Gupta

B. P. Iha

Art. 14

Patna High Court

s. 48

s. 2(1)(a)

Sections 2, 3, 4 and 5

s. 3

s. 4(1)

Section 4(2)

s. 6

s. 27

S. 5

section 4

section 6

section 5

s. 2(h)

s. 5(2)

s. 5(2)

section 15

sec. 18(ii)

March 25, 1965

December 13, 1962

s. 3

September 19, 1963

s. 4(1)

Gaya town

Gaya Mulfasil

Bodh Gaya

Paraiya Police Station

Gaya District

October 22, 1963

s. 18(i)

January

2;3, 1964

February 12, 1964

January 23, 1964

April 6, 1964

s. 5(2)(ii)

April 7, 1964

s. 5(2)(i)

M. C. Chagla

s. 4(1)

s. 4(1)

s. 2(h)

s. 2(k)

s. 5(2)(ii)

s. 5(2)

s. 18(i)

ss. 28(2)

s. 5(2)

Art. 14

s. 4(1)

May 26, 1965

High Court of Patna

s. 18(ii)

November 20, 1964

s. 18


T. K. LAKSHMANA IYER & ORS. v.

STATE OF MADRAS & ORS.

Mari:h 26, 1968

[M. H!DAYATULLAH, C.J., R. S. BACHAWAT, C. A.

VAIDIALINGAM, K. S. HEGDE AND A.. N.

GROVER, 11.] .

Modras _Hindu Religious Endowments Act, 1926 (2 of 1927)-S. 44B inserted by Act 11 of 1934-/noms granted by Hindu King for performae of services at temple-Whether included me/waram rights only or

kf!d1waram als~Whether granted in respect of personal services or here d1tary ofjices-S. 44-B whether retrospective-Whether applicable to iflall!S alienated before 1934-Alienees whether could claim adverse possession.

Inams were granted by Hindu kings fo'r performance of certain services (e-11. watchmen, music playen etc.) in the ancient temple of Thirumoolanathaswami. The iJllllllS were confirmed by the British Ooverrunent.

For over 80 years the inams were enjoyed by alienees -from the jnamdan.

By an order passed on ApHI 10, 1947 under s. 44-B of the Madras Hindu Religious Endowments Act, 1926, the Revenue Divisional Officer resumed the inam lands and regranted them to the temple.

His order was confirmed on appeal by the District Collector.

Both these authorities held that the inams comprised both melwaram and kudiwaram rights.

Tb.e alienees instituted a suit in the Court of the Subordinate Judge under the proviso to s. 44-B(2)(d)(ii) asking for a decree declaring that the inam

gtants consisted of the melwaram onlv. Thev filed another suit asking for a declaration that the aforesaid order passed by the Collector was a nullity.

In appeals against the order of the trial judge the High Court decided against the plaintiffs except as regards Dasi inams.

Against the High Court's order the plaintiff.appellants came to this Court. It was contended on their behalf that : (i) the inam grants did not oomprise the Kudiwaram; (ii) the inams were personal inams burdened with services and were not resumable under s. 44-B; (iii) Section 44-B(2) was not retrospective in operation and did not authorise resumption of the inams on the ground of any alienation thereof made before 1934 when it came into effect; (iv) there was no alienation of the inams as contemplated by s. 44-B(2l(a)(i); and (v) the ight of resumption of the inarn lands-WU extinguished by adverse possession of the lands by the alienees fnr 60 years.

HELD : ( i) The documents in evidence showed that the lands were being enjoyed by the inamdars and were granted as inams. _ The amount of the assessment or melwaram was very low and could not be an adequate remuneration for the services to be rendered. The plaintiffs claimed title to the lands under a grant from the inamdars on the footing that the lnamdars were entitled to the kudiwaram and the melwaram. The con- . clusion is irresistible that the inam comprised both the warams.[S47 F.01

(ii) There is a well-recognised distinction between the grant of the land burdened with a condition of service and the grant of land as remuneration for an office. Section 44-B does not apply to a personal lnam burdened with a . condition of service. It alles to an inam granted to an offioe bolder as :remuneration for Im servtces corutected with a math or temple as also to an inam granted to the institution directly. The inams in the present cases were not personal in\Ulls. They were inams granted

T. K. L. IYER V. MADRAS 543

to office.holders as remuneration for services to be rendered by them and

were within the purview of s. 44-B. [548 JI.CJ.

(iii) The words 'has made' in s. 44-B(2)(a)(i) take in all alienations past and future and not only future alienatioos or alienation made after the section came into force.

Section 4'h!l(2) is in its direct opetation prospective as it authorises only future resumption after it came into ferce. It is not properly called retrospective "because a part of the requisites for its action is drawn, from a time antecedent to its passing.'• The inams in the present case were resumable under s. 44-B(2)(a)(i) though the alienations were made before 1934, [548 0-5498].

Maxwell on interpretation on Statutes 11th Ed., p. 211, relied on

(iv) The appellants admitted. that they held the land from the inam- . dars under a cowle lease and at no earlier stage did the appellan15 contend that the lease was not within the purview of s. 44-B(:)(a)(i).

The plea that the lease was from year to year and hence outside the purview of the section could not be allowed to he raised for the first time in this Court. [849 Jl..H]. .

(v) The appellants being lessees their possession was not adverse to the inamdars. A fortiori, their possession was not adverse to the Government under whom the inamdars held the inam lands. They did not acquire any prescriptive title to the kudiwatam rights either against the inamdars or against the Government.

The Government could therefore resume the inam lands under s. 44-B(2). and dispossess the inamdars and the plaintiffs claiming as lessees under them. (550 B.c).

[The question whether an alienee from the inamdar can acquire a 1n-riptive title to the kudiwaram rights in the inam lands and thereby defeat the latter's right to resume the inam did not on the ab< ve vie'I'( arise for decision and the court therefore expressed no opinion on it.)

Roman Caiholic Mission v. State of MadrQ!J, (1966) 3 S.C.R. 283, referred to. . Forbes v. Noor Mohamed Tuquee, [1870] 13 M.l.A. 438, 464 and P, V, B/ieemsena Rao v .. Sir/girl Pedda Yella Reddi, [1962 I S.C.ll. 33!>, .relied on.

F CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 484 and 485 of 1965.

Appeals by special leave from the judgment and decree dated December 14, 1959 of the Madras High Court in Appeals Nos. 808 and 7 46 of 1.954.

S. T. Desai, P. C. Bhartari, and J. B. Dadachanji, for the appellants (in both the appeals).

A. V. Rangam, for respondents Nos. 1 to 3 (in C.A. No. 484 of 1965). . R. Gopalakri.s*nan,. for respondents Nos. 1 to 3 (In C.A. No. 485 of 1965).

B. Dutta, for resp0ndents Nos. 4, 9. and. 11 (in C.A. No. 484 of 1965) and respondents Nos. 13 to 17 and 20 (in C.A. No. 485 of 1965). ·

544 SUPRBMB OOUJ.T llBPORTS [1968] 3 s.c.R.

The Judgment of the Court was delivered by Bachawat, J.

In the village of Thenkarai in the Madurai District there is an ancient temple of Sri Thirumoolanathaswami.

Inams were granted by Hindu kings for performance of services of watchman, palanquin-bearer, background music player, dancing girl, musical instrument player, mason, blacksmith-carpenter, potter, washerman connected with the temple.

The inarns were confirmed by the British Government. For over 80 years, the inams were in the enjoyment of alienees from inamdars. By an order passed on April 10, 1947 under s. 44-B of the Madras Hindu Religious Endowments Act, the Revenue Divisional Officer, Usilampatti resumed the inam lands and regranted them to the temple. On October 17, 194 7, his order was confirmed on appeal by the District Collector.

The Revenue Divisional Officer and the District Collector held that the inams comprised both melwaram and kudiwaram rights in the land. The orders were passed on notice to the alienees.

The alienees instituted a suit in the Court of the Subordinate Judge, Madurai under the proviso to s. 44-B(2)( d)(ii) asking for a decree declaring that the in am grants consisted of the melwaram only. The suit was withdrawn to the Court of the District Judge, Madurai and registered as O.S. No. 3 of 1954. They instituted another suit in the Court of the Suboidinate Judge, Madurai, asking for a decree declaring that the order of the Collector dated October 17, 1947 was a nullity. This suit was transferred to the Court of the District Judge and registered as O.S. No. 4 of 1954. The District Judge dismissed O.S.

No. 3 of 1954. He decreed 0.S. No. 4 of 1954 and declared that the order resuming the inam lands was illegal and a nullity. The plaintiffs filed an appeal registered as A.S. No. 746 of 1954 in the High Court of Madras from the decree in O.S. No. 3 of 1954.

The High Court dismissed the appeal. The State of Madras filed an appeal registered as A.S. No. 808 of 1954 from the decree in 0.S. No. 4 of 1954. The High Court allowed the appeal and dismissed the suit with respect to all the inams except the Dasi inam.

Regarding the Dasi inam, the High Court dismissed the appeal as the inam was enfranchised and could not be resumed. It is from the decree of the High Court dismissing the suits in respect of the other inams that the plaintiffs have filed these appeals after obtaining special leaYe.

The two courts concurrently held that the inams comprised both the kudiwaram and the melwaram. The District Judge held

that the right to resume an inam could not be extinguished by adverse possession, and that, in any event, the claim of adverse possession was not established. The High Court held that assuming H the right of resumption could be so extinguished, it was not established that the plaintiffs and their predecessors-in-title were in possession of the inam lands adversely to the inamdars or the CloV-

•.".

ernment. The District Judge held that the inams were personal inams burdened with services and the order of resumption was therefore illegal and a nullity. The High Court reversed this find ing and held that the inams were for performance of services connected with the temple and were resumable under s. 44-B. The District Judge held that s. 44-B was retrospective in operation.

On this last point, the High Court did not express any opinion.

It may be noted that O.S. Nos. 3 and 4 of 1954 were tried along with O.S. Nos. 1 and 2 of 1954 and disposed of by the District Judge by a common judgment. O.S. Nos. 1 and 2 of 1954 related to inams granted for performance of puja in another temple. From the decrees passed in 0.S. Nos. 1 and 2 of 1954, there were appeals to the High Court and subsequently appeals to this Court. The judgment in those appeals is reported in Roman Catholic Mission v. State of Madras('). One o{ the points in all the four suits was whether s. 44-B was ultra vire1 the powers of the legislature.

This Court held that the Provincial Legislature was competent to enacts. 44-B and the amendment to it.

On behalf of the appellants, Mr. S. T. Desai submitted that

(1) the inam grants did not comprise the kudiwaram; (2) the inams were personal inams burdened with services and were not resumable under s. 44-B; (3) Section 44-B (2) was not retrospective in operation and did not authorise resumption of the inams on the ground of \lDY alienation thereof made before 1934; ( 4) there was no alienation of the inams as contemplated by s. 44-B

( 2) (a) (i) and ( 5) the right of resumption of the inam lands was extinguished by adverse possession of the lands by the alienees for over 60 years.

The Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927) was passed on January 19, 1927. Section 44-B F was inserted in the present Act by Madras Act XI of 1934 and was later amended by Madras Act V of 1944 and Madras Act X of 1946.

This section corresponds to s. 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of I 9 51) which repealed Act II of 1927. The material provisions of s. 44-B are in these terms :

"44-B. (!) Any exchange, gift, sale or mortgage, and any lease for a tenn exceeding five years, of the whole r any portion of any inam granted for the support or mamtenance of a math or temple or for the performance of a charity or service connected therewith and made, confinned or recognised by the British Government, shall be null and void.

Explanation. Nothing contained in this sub-section shall affect or derogate from the rights and obligations

Ol ft966J J s.c, R. 2sJ.

of the landholder and tenant in respect of any land as defined in the Madras Estates Land Act, 1908.

(2)(a) The Collector, may on his 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 Com missioner or Board, by order, resume the whole or any part of any such inam, on one or more of the following grounds, namely :-

(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 term exceeding Jive years, or

(ii) that the holder of such inmn or part has 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, confim1ed or recognised by the British Government, or any part of the said charity or service, as the case may be, or

{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.

When passing an order under this clause, the Col lector shall determine whether such inam or the inam comprising such part, as the case may be, is a grant of both the melwaram and the kudiwaram or only of the melwaram.

(f) Where any inam or part of un inam is resumed wider this section, the Collector or the District Collector, as the case may be, shall, by order, regrant such inam or part-

{i) as on endowment to the math or temple concerned, or

(ii) in case of reswnption on the ground that the math or temple has ceased to exist or that the charity or service in question has in any way become impossible of performance. as an endowment to the Board, for appropriation to such religious, educational or charitable purposes not inconsistent with the objects of such math or temple, as the Board may direct."

The inam title deeds, the entries in the inam fair register prepared at the time of the confirmation of the inams by the Inams Commissioner in 1863 and the contemporaneous statement made by the inamdars are of the same pattern in respect of all the inams.

It is sufficient to refer to Exs. B-4, B-5 and B-6 relating to the inam for the service of Sree Padam Thangi (palanquin-bearers).

The statement, Ex. B-4, shows that in fasli 1272 corresponding to 1862-63, Veerabadra Mudali, Periasami Mudali, Andiappa Mudali were in enjoyinent of the inam and rendering the service under the direction of the Paisaldars or the trustees of the temple.

They made the following statement : "For talcing the deities in procession round the village during the festival in the temple of Tirumulanathaswami and Akilandeswari Amman in the village of Kovil Thenkarai the aforesaid land has been granted as inarn.

The paisaldars appointed our ancestors and got service from them.

The aforesaid manyam was in their enjoyment. Afterwards the manyam was divided and during fasli 36, it was" registered in the name of myself individual No. 1 and in the names of the fathers of individuals Nos. 2 and 3. They were rendering the service and enjoying manyam and in the same manner. We have been rendering the aforesaid service and enjoying the manyam." The entries in the inam fair register, Ex. B-5 show that the inam belonged to the category of Devadayam and was for the service of Sree Padam Thangi which was being then rendered, that the original gant was made to the temple before fasli 1212 corresponding to 1802- 3, and that in 1863 the inam was being enjoyed by Verrabadra Mudali, Periasami Mudali and Andiappa Mudali. The title deed acknowledged their title to Devadayan or pagoda service inam to 11.47 acres of land held for the service of Sree Padam Thang/ and confirmed the inam to them and their successors tax-free to be held without interference so long as the conditions of the grant were duly fulfilled.

Those documents show that the lands were being enjoyed by the inamdars and were granted as inams. The amount of the assessment or melwaram was very low and could not be an adequate remuneration for the services to be rendered. The plaintiffs claimed title to the lands under a grant from .the inamdars on the footing that the inamdars were entitled to the kudiwaram and the melwaram. The conclusion is irresistible that the inam com•· prised both the warams.

The inams were originally granted to the temple for the per• formance of services connected therewith.

The trustees of the temple appointed persons to perform those services and placed the inams in their possession to be enjoyed by them as remuneration for the services to be rendered by them. The Inam Commis•ion confirmed the grants of the inams in favour of the hereditary officeholders then rendering the services.

Where there were seVP•• t

holders of the office, the inams were shown to be in their enjoy- A ment in equal shares. It is quite clear that the inams were granted to the holders of hereditary offices as remuneration for services to be rendered by them in connection with the temple.

There is a well-recognised distinction between the grant of the land burdened with a condition of service and the grant of land B as remuneration for an office, see Forbes v. Noor Mohomed Tuquee(' ). Section 44-B does not apply to a personal inam burdened with a condition of service. See P. V. Bheemsena Rao v.

Sirigiri Pedda Yella Reddi('). It applies to an inam granted to an office-holder as remuneration for his services connected with a math or temple as also to an inam granted to the institution directly.

The inams in the present case were not personal inams.

C They were inams granted to office-holders as remuneratio~ for services to be rendered by them and were within the purview of s. 44-B.

The next question is whether s. 44-B allows resumption of an inam falling within the purview of the section where the inam was alienated before the section came into force in 1934. Subsection (I) of s. 44-B renders null and void certain alienations of the inam. Sub-section (2) authorises resumption of the inam on certain grounds.

Sub-section (2) is not dependent upon sub-sec. {l) and allows resumption even in cases where there has been no alienation of the inam. In the present case, we are not concerned with th.e retrospective <>peration of sub-sec. (1) of s. 44-B, and we express no opinion on it. But there can be no doubt that s. 44-B (2)(a)(i) allows a resumption of the inam where there has been an alienation of the inam either before or after 1934. Even .apart from s. 44-B, any inam whatever its.nature could be resumed for failure to perform the conditions of the grant. Subject to certain restrictions and safeguards, paragraph 2 of the Board's Standing Order No. 54 permitted resumption of religious and charitable inams on the ground that the land was alienated or otherwise lost to the institution or service to which it once belonged or on the ground that the terms of the grant were not observed. The object of s. 44-B was to define and enlarge the grounds on which the inams could be resumed and to devise a proper procedure for the resumption. On general grounds of public policy, the legislature has declared that the inam may be resumed on any of the three grounds mentioned therein. The first ground is that the holder of the inam has made an alienation. The words "has made" in sub. - s. (2)(a)(i) takes in all alienations pat and future and not only future alienations or alienations made after the section came into force. If there has been any alienation at any time the first ground exists and the inam may be resumed. under s. 44-B. The words "has failed" in sub.-s. (2)(a)(ii} and the words "has ceased" and - .

(I) (1870) 13 H.1.A.438,464.

(2) (1962) 1S.C.R.339.

"has become" in sub.-s. (2)(a)(iii) similarly authorise resumption of the inarn if the other grounds exist though they may hav~ ari~ earlier. Section 44-B(2) is in its direct operation prospective as 1t authorises only future resumption after it came into force. It is not properly called retrospective "because a part of the requisites for its action is drawn from a time antecedent to its passing." See Maxwell on Interpretation of Statutes, 11th ed, p. 211. The inams in the present case are resumable under s. 44-B(2)(a)(i) though the alienations were made before 1934.

Section 44-B(2)(a)(i) is attracted if the holder of the inam has made an exchange, gift, sale or mortgage of the inam or has granted a lease of it for a term exceeding five years. In the plaint in Suit O.S. No. 4 of 1954 the plaintiffs claimed that one Kunjanna Ayyar, their predecessor-in-title purchased the lands from the in amdars before 1861. The plaintiffs failed to prove that the inamdars sold the! lands. The only direct evidence as to how Kunjanna Ayyar came into possession of the suit lands is furnished by Ex.

A-2, a statement made by the imun-holders to the. Madurai District Collector on August 14, 1868.

It shows that Kunjanna Ayyar had taken the lands on cowle from the inamdars. The word "cowle" means a lease. In Wilson's Glossary it is stated that the word ordinarily denotes a lease and not a mortgage. Before the District-Collector the plaintiffs admitted that they were holding under a cowle lease. The District Collector held that the alienation was within the purview of s. 44-B. The High Court also held that the plaintiffs and their predecessor-in-title were in enjoyment of the lands under the lease. At no stage of the litigation either before the revenue authorities or in the plaint or before the District Judge or in the High Court did the plaintiffs contend that the alienation in their favour was not within the purview of s. 44-B

(2) (a) (i). As a matter of fact, the case made in the plaint was that their predecessor-in-title had purchased the land from the inamdars.

Such an alienation is clearly witl1in the purview of s. 44-B(2)(a)(i).

For the first time in this Court it is contended that the alienation was by way of a lease from year to year. It may be conceded that all leases do not come within the purview of s. 44-B(2)(a)(i). The lease must be for a term exceeding 5 years. A lease from year to year is not a lease for a term exceeding 5 years howsoever long the lessee might have continued in possession of the demised lands.

But we think that the plaintiffs ought not to be allowed to raise at this late stage the novel contention that the lease was from vear to year. This contention is contrary to the case made by them in the plaint. Moreover, the materials on the record do not support the contention.

The plaintiffs and their predecessor-in-title were in continuous possession of the lands for over 80 years under the cowle lease. The original cowle is not forthcoming. The plaintiffs claimed to be permanent alienees of the lands. . In all these circumstances, we are inclined to presume that the cowle granted

a permanent kase and the inams were resumable under s. 44-B (2)(a)(i).

There is no period of limitation prescribed for. the initiation of proceedings under s. 44-B(2) .. The section gave a new statutory right of resumption of the inams.

On a resumption of the inams, the title. if any, of all persons claiming through the inamdars to any subordinate interest in the inams stood determined.

Kunjanna Ayyar and his successors-in-title were lessees of the inam lands under the inamdars.

During the continuance of the tenancy, their possession was not adverse to the inamdars.

A fortiori, their possession was not adverse to the Government under whom the inamdars held the inam lands. They did not acquire any prescriptive title .to the k udiwaram rights either against the inamdars or against the Government.

The Government could. therefore, resume the inam lands made under s. 44-B(2) and dispossess the inamdars and the plaintiffs claiming as lessees under them.

TJ1c question whether an alienee from the inamdar can acquire prescriptive title to the ku!liwaram rights in the inam lands against the Government and thereby defeat the latter's right to resume the inam does not, therefore, arise for decision, and we express no opinion on it.

It may be noted that In Roman Catholic Mission v. State of Madras( 1 ) this Court held that there is no limitation barring imposition of assessment on the land after resuming the melwaram.

It follows that both the kudiwaram and melwaram rights were rightly resumed under s. 44-B(2)(a)(i).

In the result, the appeals are dismissed. In all the circumstances of the case, there will be no order as to cost~.

G.C.

Appeals dismissed.

(I} [19661 .1 S.C.R. 283, 299.

T. K. LAKSHMANA IYER & ORS

STATE OF MADRAS & ORS

R. S. BACHAWAT

K. S. HEGDE

GROVER

Hindu Religious Endowments Act, 1926

S. 44B

S. 44

Thirumoolanathaswami

s. 44

s. 44

s. 44

Section 44

s. 44

Section 44

s. 44

s. 44

Section 4

s. 44

s. 44

s. 44

(1966) 3 S.C.R. 283

S. T. Desai

P. C. Bhartari

J. B. Dadachanji

A. V. Rangam

R. Gopalakri.s*nan

B. Dutta

Bachawat

Thenkarai

April 10, 1947

s. 44

Religious Endowments Act

Usilampatti

October 17, 194 7

Subordinate Judge, Madurai

s. 44

Court of the District Judge, Madurai

Suboidinate Judge, Madurai

October 17, 1947

High Court of Madras

State of Madras

s. 44

s. 44

s. 44

s. 44

Section 44

s. 44

Madras Act II of 1927

January 19, 1927

Section 44

Act by Madras Act

Madras Act V of 1944

Madras Act X of 1946

s. 35

s. 44

British Government

Madras Estates Land Act, 1908

Sree Padam Thangi

Periasami Mudali

Andiappa Mudali

Tirumulanathaswami

Akilandeswari Amman

Verrabadra Mudali

Devadayan

Sree Padam Thang/

Section 44

s. 44

s. 44

s. 44

s. 44

s. 44

s. 44

s. 44

s. 44

Section 44

s. 44

Section 44

Kunjanna Ayyar

August 14, 1868

Wilson

s. 44

s. 44

s. 44

s. 44

s. 44

s. 44

s. 44

s. 44


KIRPAL SINGH DUGGAL v,

MUNICIPAL BOARD, GHAZIABAD

March 26, 1968

[J. C. SHAH, V. RAMASWAMI AND G. K. MITTER, JJ.J

U.P. Municipalities Act, 191&-Exemption under s. 157(3)-Rule.• requiring application for refund within six months of payment-Application for refund beyond six montlis-S11i1 for recovery.-lurisdictlon of CivU Court, if barred.

The appellant transported, between August 1953 and March 1955 certain materials in execution of a contract to supply goods fdr use by the Government of India.

The respondent Municipality collected toll while the appellant's trucks were passing through the toll barrier. The appellant obtained in June 1955 a certificate from the aitthority concerned that the goods transported were "meant for Government work and had become the property of the Government". The appellant then applied to the Municipality for refund of the amount paid pursuant to the exemption granted by the Government Order under s. 157(3) of the U.P.

Municipalities Act, 1916. The respondent declined to refund the amount.

In an action against the respondent the trial court decreed the claim. In appeal the Civil Judge decreed the claim only for the amount paid after December 13. 1954.

The High Court affirmed the order of the Civil Judge. Both the Civil Judge and the High Court took the view that bi• the Rules framed under the Act an application for refund \Vithin six months from the date of actual payment is a condition precedent for rcf\lnd of the toll. Allowing the appeal. this Court, HELD : The Civil Jbdge and tho High Court exalted, what were merely matters of procedure which the Municipality \\'as c°:titled to require compliance \Vith in granting rcfunJ, into conditions precedent for the exercise of the jurisdiction of the Civil Court. The rules framed by the Government relating to the procedure to be followed in giving effect to the exemptions on April 15, 1939, do not purport to bar the jurisdiction of the Civil Court if the procedure is not followed.

If these procedural requirements are not fulfilled, the Municipality may decline to refund the toll and relegate the claimant to a suit. It would then be open to the party claiming a refund to seek the assistance of the Court, and to prove by evidence which is in law admissible that the goods transported by him fell within the order issued under s. 157(3) of the Act. [555 B-FJ.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 725 of 1965.

Appeal by special leave from the judgment and order dated February 3, 1964 of the Allahabad High Court in F.A.F.O. No. 122 of 1961.

Bishan Narain and Harbans Singh, for the appellant.

Rameshwar Nath, for the respondent.

H The Judgment of the Court was delivered by

Shah, J. Between August 1, 1953 and March 28, 1955, the appellant transported 521 truck-loads of "stone-grit" and other

SUPREME COURT REPORTS

(1968] 3 S.C.R.

materials from Delhi to Muradnagar in execution of a contract to A supply goods for use by the Government of India. The trucks of the appellant had to pass through the toll barrier of the Municipality of Ghaziabad, and toll at the rate of Rs. 8 per truck was collected from the appellant. The appellant obtained a certificate from the Garrison Engineer, M.E.S., Meerut, on June 10, 1955, that the goods transported by the appellant "were meant for Gov B ernment work and had become the property of the Government".

The appellant then applied on June 14, 1955, to the Municipality of Ghaziabad for refund of the amount of toll paid pursuant to the exemption granted by Government Order under s. 157(3) of the U.P. Municipalities Act, 1916, and the Municipality having declined to refund the amount, the appellant served the statutory notice and commenced an action against the Municipality in the C Court of the Munsif at Ghaziabad on February 11, 1956, for a decree for Rs. 4,300. The trial court decreed the claim. In appeal, the Ilnd Civil Judge, Meerut, upheld the claim of the appellant only for the amounts paid after December 13, 1954. The High Court of Allahabad affirmed the order of the Civil Judge.

The appellant has appealed to this Court.

The relevant provisions of the Act, the rules and the orders issued by the Government may first be noticed.

Under s. 128 of th~ U.P. Municipalities Act, 1916, the Municipal Board is, subject to any general rules or special orders of the State Government in that behalf, competent to impose in the whole or part of a municipality the taxes specified in that sEction and one of the E taxes specified is "a toll on vehicles and other conveyances, animals, and laden coolies entering the municipality". Under s. 157

(3) of the Act the State Government may, by order, exempt from the payment of a tax, or any portion of a tax, imposed under the Act any person or class of persons or any property or description of property. Pursuant thereto the Government of U.P. issued an F order on April 15, 1939, which, insofar as it is material, provides:

" .... the Provincial Government are . . . pleased to issue an order under section 157(3) of the U.P. Municipalities Aet, 1916, exempting those goods which are the property of Government or which become so sub- G sequent to their entry. within a Municipality, from the payment of terminal tax or toll.

2. The procedure to be followed in giving effect to the exemption sanctioned above shall be as follows :- 'When goods are imported by a private person for H supply to Government in fulfilment of a contract, or otherwise intended for the use of Government a Written intimation to that effect shall be given to the officer col-

K, S. DUOOAL v. MUNICIPAL BOARD (Shah,/,) 553

lecting terminal tax/terminal toll who would immedia

tely forward it to the Terminal Tax Superintendent.

The tax/ toll on goods shall then be paid but if subsequently they actually become the property of Government, it shall be refunded on a certificate of the offi cer authorised to receive the goods on behalf of Government' " •

The State Government is authorized by s. 296 to make rules o~ sistent with the Act in respect, amongst others, of matters descnbed in s. 157 "generally for the guidance of a board or any Government officer in any matter connected with the carrying out of the provisions of this or any other enactment relatg to munici palities". The State Government framed rules relating to assessment and collection of toll in the Ghaziabad Municipality. Rules 1 and 5 are material :

"!. No person shall bring within the limits of the Ghaziabad Municipality any laden vehicle or other laden conveyances or laden animal in respect of which a toll is leviable, until the toll due in respect thereof has been paid to such persons and at such barriers or such other places as the board may from time to time appoint.

Explanation.- .

"5. When goods are imported by a private person for supply to Government in fulfilment of a contract or otherwise intended for the use of Government, a written intimation to the effect shall be given to the officer collecting that tax who would immediately forward it to the Toll Tax Superintendent. The tax on goods shall then be paid, but if subsequently they actually become the property of Government, it shall be refunded on a certificate of the officer authorised to' receive the goods on behalf of Government. . . .

The application for refund of the tax paid shall be made within fifteen days of the date of the certificate referred to above and within six months of the date or dates of payment of the tax and shall be accompanied by the original toll receipts.

, Note:- " The Civil Judge was of the opinion that toll is immediately payable in all cases, but where goods are for the use of the Govern- H ment. it becomes refundable when the property becomes the proprty of the Government, and a certificate is issued by the officer concerned to that effect. He further held that the application for refund must be made within fifteen days of the date of the certi-

-554 SUPll.l!MB COVRT llllPOll.TS

[1968) 3 S.C.11..

Jicate and within six months of the date of payment, and an ap- A _plication for refund within six months from the date of actual payment is a condition precedent to the refund of the toll and even though a certificate by othe prescribed _authority is issued beyond six months of actual paymenl.

The High Court a.greed with that view.

Under the order issued by the Government under s. I 57(3) -of the Act the amount of roll paid by the appellant became refundable to him. The appellant was therefore entitled to claim against the Municipality that the amount be repaid. The right to enforce that claim was a right of a civil nature, and could be enforced ; n a cfvil suit, unless the suit was barred by the law of limitation or the right was by reason of some statutory provision extinguished, , or the jurisdiction of the civil court was barred expressly or by necessary implication, or that the enforcement of the right de pended upon the fulfilment of a condition precedent or upon existence of some fact collateral to the actual matter which the Court had to try and which was not shown to exist. It was held by the Civil Judge, and rightly, that the claim was not barred by s. 326 of the U.P. Municipalities Act, 1916, because the suit was not in respect of any act done or purported to have been done in the official capacity. There is nothing in the order issued by tl; e State Government, or any other provision of the law, that on the expiry of any particular period or on the happening of a contingency, the claim stands extinguished. The jurisdiction of the civil court to entertain a suit for refund of tax levied under s. 128 of the Act is also not barred by express enactment or by necessary implication, arising ouu of the provisions of ss. 153(c), 160, 162 and 164 of the Act.

Section 153(c) merely provides for framing of the rules regulating the system on which refunds shall be allowed and paid. Section 160 makes provisions for appeals relating to taxation and the authorities to which the right to appeal may be exercised.

Section 162 provides for a reference to the High Court where a question of liability to, or the principle of assessment of, a tax arises on which the officer hearing the appeal entertaim reasonable doubt. Section 164 bars the jurisdiction of civil and cri minal courts in matters of valuation or assessment or about the liability of a person to be assessed or taxed. But the dispute in this case does not relate to valuation or assessment, or liability to be taxed or assessed. When the goods in respect of which toll was paid became the property of the Government, the toll paid by the appellant became refundable and the jurisdiction of the civil court to entertain a claim for refund of toll arising by virtue of an order under s. 157(3) was not eXcluded.

It was not contended either in the trial court, the first appellate Court or even the High Court that the jurisdiction of hte civil court to entertain a miit was excluded.

The first appellate Court has in fact granted refund of a part of the amount paid and the right of the civil

K, S. DUGGAL V, MUNICIPAL BOARD (Shah; /,) 555

court to direct refund in appropriate cases has not been challenged in this Court.

But counsel for the respondent contended that the rules framed by the Government regarding the procedure constituted a condition precedent to the exercise of the right to claim refund and recourse to the civil court being conditionally strict compliance with the procedure prescribed the civil court was incompetent to decree the suit unless the condition was fulfilled. We are unable to agree with that contention. The rules framed by the Government merely set up the procedure to be followed in preferring an ap, l'lication to the Municipality for obtaining refund of the tax paid.

The Municipality is under a statutory obligation, once the procedure followed is fulfilled, to grant refund of the toll. The application for refund of the toll must be made within fifteen days from the date of the' issue of the certificate and within six months from the date of payment of the toll. Jt has to be accompanied by the original receipts. If these procedural requirements are not fullillcd, the Municipality may decline to refund the toll and relegate the claimant to a suit. It would then be open to the party claiming a refund to seek the assistance of the court, and to prove by evidence which is in Jaw admissible that the goods transported by him fell within the order issued under s. 157(3) of the Act. The rules framed by the Government relating to the procedure to be followed in giving effect to the exemptions on April 15, 1939, do not purport to bar the jurisdiction of the civil court if the procedure is not followed. Jn our judgment, the Civil Judge and the High Court exalted what were merely matters of procedure, which the Municipality was entitled to require compliance with in granting refund, into conditions precedent to the exercise of juri, diction of the civil court. It is impossible on a bare perusal of the order issued by the Government and the rules framd by it to give to the order and the rules that effect.

The appeal is therefore allowed and the decree passed by the High Court is set aside and the decree passed by the trial coun is restored with costs throughout.

Y.l'.

Appeal allowed.

7Sup. C.T.168

KIRPAL SINGH DUGGAL

MUNICIPAL BOARD, GHAZIABAD

March 26, 1968

C. SHAH

V. RAMASWAMI

G. K. MITTER, JJ

s. 157(3)

s. 157(3)

Municipalities Act, 1916

December 13. 1954

April 15, 1939

s. 157(3)

Allahabad High Court

Bishan Narain

Harbans Singh

Rameshwar Nath

Shah

Delhi

Muradnagar

Government of India

Meerut

June 10, 1955

June 14, 1955

Municipality of Ghaziabad

s. 157(3)

Municipalities Act, 1916

C Court of the Munsif at Ghaziabad

February 11, 1956

Ilnd Civil Judge, Meerut

December 13, 1954

High Court of Allahabad

s. 128

Municipalities Act, 1916

s. 157

Government of U.P.

section 157(3)

s. 296

s. 157

Ghaziabad Municipality

s. 326

Municipalities Act, 1916

s. 128

ss. 153(c), 160, 162 and 164

Section 153(c)

Section 160

Section 162

Section 164

s. 157(3)

s. 157(3)